An Analysis On Copyright In The Live Streaming Of Video Games

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During the past decade, the gaming business has witnessed a spectacular transition. Games are no longer a kid’s pastime but have evolved into a larger business and industry. A popular reason for the exponential growth of the gaming industry in recent years is the sudden burst of momentum gained in the field of livestreaming. While livestreaming has been around for years, this space has seen phenomenal growth in recent years and has exploded on a global scale.

The success of livestreaming is, in part, due to the unexpected events of 2020. Social distancing offered people a chance to connect virtually and this has resulted in a dramatic increase in the number of viewers on streaming platforms such as Twitch and more recently, Youtube Today, livestreaming is a lucrative profession and how much popular streamers earn has become a topic of speculation. Income from ads, sponsorships, contributions, and subscriptions help streamers earn a living. A large population of streamers on Twitch, Youtube, Facebook and Kick earn a share of ad income from pre-, mid-, and post-stream commercials. Sponsorships pay streamers to advertise goods/ products on their stream. Viewers also make regular donations to their favorite streamers. Lastly, audiences are capable of ‘subscribing’ to support streamers by gaining access to streams without ads or subscriber only content, by paying a minor monthly fee.

In October 2021, confidential information from the popular streaming platform Twitch was leaked online exposing data regarding the top 100 streamers earnings for the period between August 2019 to October 2021 which ranged from USD 800,000 to USD 10,000,000 per streamer.

The exorbitant earnings by some video game streamers in recent years and the proliferation of livestreaming platforms and live streamers worldwide including India poses a pertinent question: Whether the livestreaming of video games infringes the copyright or not?

Copyright in Video Games and Fair Use

As the industry of live streaming expands, so does the necessity to preserve intellectual property rights of game developers/ producers. Video games are made up of a myriad of audio-visual components and user-interactive software including but not limited to characters, visual designs/ animations, landscapes, stories/ plots, audio/ music as well as software/ computer programs (which operate the game). Consequently, a video game is not a single piece of creative work but a fusion of various audio-visual components and computer software and their underlying literary works such as the story, plotline, speeches etc.

While there is no express law regulating video games or their livestreaming, the various components of a video game fall within the ambit of the Copyright Act, 1957. The most basic component of a video game is the computer software, which, along with the story, plotline would be considered as literary works. Soundtracks and/ or audio animations would be considered musical works and consequently, the video game would be protected under Section 14 of the Copyright Act. When a streamer broadcasts a game on a livestreaming platform, the streamer is broadcasting the plot, music and video of the game in the public domain and this may be construed to be an infringement of copyright under Section 51 of the Copyright Act.

Whether such streaming amounts to an infringement of copyright would further depend on the existence of any user/ policy agreements between the users of the game and the relevant game developer. Certain game developers encourage gamers to broadcast their games which certain other developer such as Nintendo follow a strict copyright policy and require that users procure an authorization prior to livestreaming.

It is also undetermined if a video game would qualify as a ‘cinematograph film’ for the purpose of the Copyright Act. Section 2(f) as “…means any work of visual recording produced through a process from which a moving image may be and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films…”

Video games may be construed as cinematography films due to the reference to a “process analogous to cinematography”, but without any relevant precedent in India, this remains undetermined. However, it is pertinent to note that the Supreme Court of South Africa in Golden China TV Game Centre and Others v. Nintendo Co Ltd and the Supreme Court of Japan in Supreme Court Case No. H13-ju-952, have both classified video games as ‘cinematography films’ and have granted protection in this regard. However, no such determination has been made by the judiciary in India.

While the Indian judiciary has not expressly provided any protection to videos games in India, the case of Sony Computer Entertainment Europe Ltd v Harmeet Singh and Or, is the closest case in relation to dealing with copyright in video games. In the said dispute, Delhi High Court granted an interim injunction against the defendants, who had modified a PlayStation console to run pirated video games, which they were distributing.

The only defense for individuals involved in the profession of live streaming may be the doctrine of fair use as the live stream being broadcast by the streamer involves commentary and criticism by the streamer and consequently, may fall within the fair dealing exception of infringement of copyright offered under Section 52 of the Copyright Act. Such continuous feedback may be construed to be transformative work amounting to ‘review’ under Section 52(1)(a)(ii) of the Copyright Act. However, the individual live streaming the game would be required to continuously review the game and provide continuous commentary to attract the defense of fair dealing.
It is also germane to note that the courts of the United States of America and United Kingdom typically apply the doctrine of fair use to works that are non-commercial in nature. As the Indian judiciary often relies on conclusions drawn by the courts of the United States of America and United Kingdom while dealing with issues not covered under the legislation, it may be concluded that, as streamers earn a substantial income from the streaming of video games, the principle of fair dealing under Section 52 will not apply to the streaming of video games.

Gaming companies/ developers are well aware of the potential copyright infringements that may be occurring but have reason to neglect such infringements entirely. Streaming platforms are becoming more popular day by day and the exposure of the game to millions of followers and live audience is only beneficial for their business as it directly or indirectly promotes the game being livestreamed thereby their increasing sales. This helps game developers attract more users and, in many instances, game developers themselves offer incentives to popular streamers (such as early access to features/ sponsorships) to promote their game on the livestreaming platforms consequently turning a blind eye to the potential infringement of copyright.

Conclusion

The lack of legislation coupled with the lack of clarity on potential copyright issues in relation to the livestreaming of video games is especially terrifying for content creators and streamers, who may not be aware if they are infringing copyright when they utilize game material in their live streams. This ambiguity is predominantly harmful for smaller streamers who may lack the means to wage legal disputes with gaming companies.

As video games are a combination of various audio-visual elements and software, whether any live streamer is protected under the doctrine of fair use will need to be determined on a case-to-case basis by the courts.

There is an obvious lacuna in law and an urgent need for clarifications with respect to potential copyright liability for livestreaming video games. This law should define what constitutes fair use of game material in livestreams, as well as set out specific parameters for revenue sharing and other financial relationships between broadcasters and game producers. Without any clarity on the subject, legal challenges shall continue to develop, potentially stifling the expansion of this fascinating new form of entertainment.

Authors – Aneesh Tendolkar & Malabika Boruah

Lawyers.

Interns and Paralegals.

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