Video game streaming and copyright law

30th September, 2021 - 11:24 am Categories: Copyright 0 Comments

Video game industry has gone through a considerable transformation in the last two decades. It is not restricted to one room or between a few individuals playing a multiplayer game. It has crossed the boundaries and streaming platforms like Twitch, Mixer and YouTube Gaming are also getting popular. It has been observed that during the COVID-19 period viewership on these platforms have increased as it has become a mode to gain fame, along with a lucrative living, by generating content to feature on these platforms.

Copyrights in Video Game

For a wholesome experience for the user, a video game consists of various components. The basic components are software which is coded and creates a user interface for the gamer. The contents of a video game are copyrightable but, the theme or the concept of the game cannot be copyrighted. This is the fundamental of the copyright protection that there is no copyright on the idea or theme or concept but only on the expression of an idea.

The copyrightable contents of a video game are characters, gameplay, visual designs, sounds, music and program codes. For characters to be copyrightable it needs to be of a unique expression. As video games provide expression to the idea of a character it possesses copyright protection. Nintendo, a video game company, has the copyright of the game and character of Mario.

How a user interacts with a game is known as gameplay. It includes the plot, levels, obstacles etc. of the game. Though there is no copyright in a theme or a plot, however violation of copyright can be ascertained by details of the expression ie, the details of the plot or concept of the game. The copyright is available on the audio and the music of the game. The game Mario has well-defined music in the background which is different for each level, including the main theme of Mario created by Koji Kando. Such works including sounds of certain actions or characters of the game like the sound of collecting coins or shooting the enemy, all such sounds have copyright. The one and the most basic component of a video game is its software or the program. Such programs are coded and they are considered literary work under section 2(o) of copyright act 1957. Literary work is protected under the act under section 14 (1) (a) concerning 14 (1) (b) of the copyright act.

Streaming of video games

In the current scenario companies like YouTube and Twitch allow users to live stream video games on their platform. A typical streaming platform offers an outlay which consists of a broadcast of a video game that tends to take up the majority of the screen area, the streamer visible in some corner of the screen and other outlays like chats, donation or goals on the edge of the screen. The agenda behind the streaming is to showcase the video game itself.

As discussed above video games are computer programs which are protected under copyright act u/s 14 (1) (b). When the streamer live streams their game the plot, audio, music and video of the game are broadcasted in the public domain, which is regarded as an infringement of copyright under section 51 (a) of the act. However, this is subjective to the policy or agreements between the user and the game developer. Companies like Sony and Microsoft encourage gamers to share their games. However, Nintendo, China NetEase and League of Legends have followed a strict copyright policy claiming that the distribution of the game contents should be authorized by the copyright owner and any unauthorized live streaming can make the broadcaster or the streamer liable for copyright infringement.

Fair use

Section 52(1)(a) of Indian Copyright Act 1957 provides for fair dealing exceptions where an original work is used for criticism and review. This exception can be applied to video game streaming because it includes comments by the audience and continuous review on the game by the streamer. Such videos cannot be considered as copyright infringement under the act. It is important to note that in countries like the UK or the US the fair use principle is applied only if the work is non-commercial. It is known that gamers earn income by streaming such video games and platforms like YouTube and twitch provide proper income model for such live streams.

Turning a blind eye 

Though the companies are well aware of their copyright in video games but they have their reasons to neglect such infringements. Streaming on platforms like YouTube or Twitch the gamers who review or play the game are directly or indirectly promoting the companies and their games. This helps the companies to attract more users and increase their sale. This income generation is not limited to only the game developer and the user, but also to the platforms where streaming takes place. These platforms earn through advertisements or attracting audiences on their sites. They also pay users to play games on their platform in collaboration with the companies. Hence, companies turn their blind eye to copyright infringements for business and promotion.

Caution while streaming

Online streaming of video games could be protected u/s 52 (1) (a) but it has a limited scope. Not, all video game streams could be defended under fair use. If the policy and the agreement of the game developer do not provide for promotional practice then some precautions need to be followed while streaming. First, the streamer should not stream the whole of the video game, it should not be a substantial part of the game. Streaming the whole or a substantial part of the video game will make the gamer liable for the copyright infringement. The streamer needs to continuously review and the audience should constantly comment on the game so that it could be considered as a derivative work and game review could attract the defense of fair use. If the streamer just plays the game silently without any comment or chat on the screen then it could attract copyright infringement. Lastly, the streamer should avoid using the platform for commercial purposes directly.

Conclusion

With the increase in the streaming of video games, many legal issues have emerged under copyright law. Such streaming could be considered as a copyright violation but the defense of fair use is also available to a limited extent. Licensing is the best protection against possible infringement wars for the video game streaming industry. Protecting such streaming is important, as it is an expression that enriches the creative life of streamers and the cultural life of viewers. There is a need for more clarity on video game streaming in copyright law.

Author: Himanshu Sinha– graduated from  Campus Law Centre, Faculty of Law (University of Delhi),  currently an intern at Khurana & Khurana, Advocates and IP Attorneys.  In case of any queries please contact/write back to us at vidushi@khuranaandkhurana.com.