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Jason Pook's Games Design Blog

NDA- Non Disclosure Agreement

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In the Gaming industry it is important to keep content secret before release or in production. This is so that the public keep thinking whats next, will there be a addition to there favourite series of games, what content is in the recently announced game and so on.

Confidentiality is a vital part of the gaming industry, any information that the public should see at any point should only have been approved by the leaders, if it wasn’t then this will be a breach of an NDA or as the public call it a “leak” or a “rumour”. A recent example of a rumour would be the new Silent Hill being cancelled, for a few weeks it had been rumoured that it had been cancelled sparking much disappointment in the gaming community for anybody who experienced the demo “P.T.”. This was then later confirmed by Konami that it has actually been cancelled after Guillermo Del Toro announced in an interview “it breaks my greasy heart” that it wont progress. But for a few weeks it wasn’t official so somebody must have found out somewhere from the inside or a source potentially breaking an NDA.

A great website explaining what an NDA is and how it works is www.gov.uk, the idea behind an NDA is that you shouldn’t automatically assume that information you are telling people or work your are sharing is confidential. The way to legally enforce that it stays private is through a Non Disclosure Agreement, this could specify that if any of the terms and conditions in regards to the information shared is leaked and you are the culprit that is a breach of contract and punishment will follow.

Here is the step to step guide on a NDA from www.gov.uk:

 1.Before you share information

The best way to keep something confidential is not to disclose it in the first place. If you do need to share information you should use a non-disclosure agreement (NDA). This could happen when you speak to potential partners like:

  • investors
  • manufacturers
  • stockists

You may have to tell people about your idea or your business to get advice. This could be from:

  • accountants
  • banks
  • financial advisors
  • insurance brokers
  • business coaches
  • or a marketing agency

It is important that you don’t assume conversations with advisors are automatically confidential.

An NDA is a legal contract. It sets out how you share information or ideas in confidence. Sometimes people call NDAs confidentiality agreements.

Your IP attorney or solicitor can advise on confidentiality and draw up an appropriateNDA for you to use.

2.What to consider

You should decide what your NDA covers. It could protect only information which is recorded in some form and marked ‘confidential’. It can also protect information you share in meetings or presentations.

A good NDA restricts the use of the ideas and information to a specific permitted purpose. This could be the evaluation of your idea or the discussion of a joint venture. Specify that purpose in the NDA as precisely as you can. You can always widen the permitted purpose later. You won’t be able to narrow the restriction on the use of your ideas or information later.

You should be realistic. The person you are talking to might need to share your information with others. This could be their employees or professional advisors. They may also need to copy your information for this purpose. Make sure that these disclosures to employees and professional advisers are made in confidence.

Think about how long the confidentiality should last. It’s common to see it limited to 3 or 5 years. After that time they will be able to use and disclose your information. Once information is made public in anyway, an NDA can’t be enforced.

Some information could be kept confidential forever. Examples of these are:

  • non-patentable know-how
  • lists of customers
  • personal information about the individuals involved in a project

Some companies or organisations could ask you to sign a document agreeing that they will not have a duty to keep your ideas or information confidential. If that is the case, you need to decide whether to risk disclosing your ideas to them.

3.Types of NDAs

NDAs can be one way or mutual. Use a one-way NDA if only you are disclosing information and a mutual NDA if both parties are.

If the NDA is one-way only, it may need to be executed as a deed to make it enforceable. This is easy to do, so don’t make what should be a one-way agreement into an artificial mutual agreement.

If you and the other party to the NDA are not both in the same country, the NDA will need to state which law governs the agreement. Remember England and Wales have a different legal system to Scotland. It will also need to state in which courts it can be enforced. It is important that the courts of one country are not given exclusive jurisdiction. You may want to enforce the NDA in a different country if an unauthorised disclosure is made there.

4.Before your meeting

Don’t disclose your ideas or information until the recipient has signed and returned theNDA to you. Without an NDA, you are taking the risk that others could use your ideas or information without your permission.

Always check any NDA which another party asks you to sign. Make sure it doesn’t unfairly restrict your future activities.

You could ask your potential partner or advisor if they have an NDA you could both use. Read it carefully as it might serve their interests rather better than it serves yours. If in doubt, take professional advice.

Make sure the right person signs the NDA. This could be:

  • a director of the recipient company
  • an officer of the recipient institution
  • someone senior who has authority to give the undertakings in the NDA

5.During your meeting

You should record what you disclose at meetings or in presentations. Ask people present to sign a paper copy of a presentation, or a technical drawing to prove they have seen it.

Record what information you disclose in informal situations such as discussions or conversations. Note when and where that took place.

6.NDAs and public authorities

Public authorities, including universities, have to make information available to the public if they receive a specific type of request:

  • the Freedom of Information Act 2000
  • the Freedom of Information (Scotland) Act 2002
  • the Environmental Information Regulations 2004 (the FOIA)

You should make sure your NDA excludes these kinds of requests if you are talking to a public authority or university.”

(All of the quotation above is from www.gov.uk and is not my own work.)

An example of an NDA in the games industry would be that of a project. If Ubisoft are set to begin production of the latest Assassins Creed game they will force any employee in all fields to sign an NDA to prevent any content escaping the studio. Terms and conditions of such an NDA would allow the artists to enter any personal works from the game into there portfolios after the release so that could attract any further jobs for them. But until the NDA says so any release of content being a screenshot, a model, anything really without permission from the company would be classed as a breach in contract, this then gives them the ability to terminate your contract and possibly not even pay you for your work depending on how the details of the NDA was written. Now the latest Assassins Creed has been released called Unity, some designers went to Polycount to show off there work to the games design community (see link).

My own personal experience of a industry practice of an NDA would be that when I entered the Game Jam in Cambridge, due to being stationed in the Jagex studios and given a guided tour I was required to sign a NDA to keep secret any content I had seen. This then allowed us to demo a unreleased game at the time as well, which for a games design student was quite an exciting experience. NDA’s will be a prominent part of any future contracts I may encounter in the games industry and understanding its importance and use is key to expanding my contextual knowledge of industry practice.

Author: Jason Pook 3D

Current student at Hull School of Art and Design studying Games Design.

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