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Alliance Center for
Intellectual Property Rights


VIDEO GAME STREAMING: COPYRIGHT INFRINGEMENT OR RIGHT?

October 1, 2023

* Mr. Sanskar Dubey

INTRODUCTION

This is the era of bell icons, subscribers, the number of followers on social media and perhaps sharing, liking, forwarding pictures, songs, or profiles, etc. and the whole population in the world today is controlled by the internet. It has been a great platform for people to earn money by showcasing their creativity on the public platform through intermediaries. YouTube is one of the intermediaries which gained popularity in the year 2016 bringing the trend of videos among the masses. Also, Video games were essential parts of childhood back in the ’20s but as the technology is advancing live streaming of games are gaining significant fame.

What is video game streaming? When an individual surfs through YouTube or any such platforms they may come across various online gamers’ YouTube channels where these gamers live stream their performance in an audiovisual method exhibiting their performance with their commentary. To promote online game streaming for these gamers YouTube has introduced its special features which were also mentioned in their issued information blog of 2015.

The trend of YouTube game streamers is parallelly increasing, these game streamers use video games and add their skills to them with ongoing commentary or their suggestion at every level and stream it for their subscribers or the YouTube audience. These YouTube recorded videos are then seen, liked, subscribed, and bought by the audience if they like them. This is how whole live streaming works. Now the major concern arises here that these creators or YouTubers who stream their videos which have recordings of playing video games. The question of law here arises is this a violation of the Intellectual property rights of the Video game creators that these YouTubers are using their video games without their permission for commercial purposes? Or is there a freedom of the creator to use them as creative freedom under Article 19 of the Indian constitution?

VIDEO GAMES VIS A VIS COPYRIGHT

Intellectual Property infringement can be determined by various factors based on which it can be said that an individual has infringed the intellectual property of the creator or not. One of the factors is the motive of the activity or involvement of commercial value in the activity. An individual can use the copyrighted work with the exception of fair use under Section 107 of the Copyright Act, 1957 which states that if any work is used by any other individual for teaching, research, news reporting, criticising, or for any other educational purpose then it is not an infringement, and an individual is exempted.

In Videogames, live streaming is not for educational purposes in fact this streaming involves a commercial gain to the YouTube game streamers and so if any commercial gain is involved while using copyrighted content for commercial gain it is copyright infringement.

DEVELOPER’S RIGHT VS. STREAMER’S RIGHT? A STATUTORY INTERPRETATION

The Developers of these popular games put their creativity and skills while designing and developing a game that is a combination of audio, video graphics and artificial intelligence. Copyright is granted to an individual or entity on the expression of an Idea and not on the theme or the overall concept of the idea. Similarly, copyrighting the whole theme or concept of video games is not permitted, only the contents of video games are copyrighted. For getting video games copyrighted, it must be a unique creative idea of the character. This may involve the gameplay, visual graphics, sounds, characters, etc.

A Japanese video game company, Nintendo gets their famous game character Mario copyrighted under their copyright act. This unique Character and the music used in this background at various levels are eligible for copyright under the Copyright Act. Video games are considered to be a combination of innovative software and literary work. Under the copyright act literary work is protected under the Copyright Act and so is the definition defining literary work under section 2(o) includes components of video games and so reading section 2(o) r/w sections 14(1)(a) and 14(1)(b of the Copyright Act states Literary work is protected under copyright act and the owner has the right over the created copyrighted content. This highlights that the developer of these video games has rights which also include the right over their created work. So, using the created copyrighted video games by these YouTubers to stream and increase their audience base and earn money from YouTube is an infringement of their copyright.

When these streamers broadcast and stream these copyrighted video games this is considered as an infringement under section 51(a) of the act. Whereas to take some serious steps taken by companies such as Sony and Microsoft towards protecting developer's rights. These companies encourage gamers by providing a platform for gamers to share their games. Where some games like Nintendo, China NetEase, and League of Legends follow strict copyright policies where that restrict any unauthorized streaming and distribution of their games, and if done then that will amount to infringement of copyright under the Copyright Act.

At the same point of time, freedom of speech recognizes and gives the right to use their creativity and share it with the public at large under Article 19 of the Indian Constitution, not only but also any copyrighted content can be used under the exception defined.

JUDICIAL INTERPRETATION

The Judiciary has interpreted the protection of video games as two sides of a coin this brings to a debate between the rights of developer/Video game owner and the YouTuber.

The U.S Supreme court recognises videogames for the very first time and considered them to be protected as a part of work of art under the first amendment in the landmark case of Brown v. Entertainment Merchants Association. A Parallel interpretation has been laid down in another landmark case of Japan and South Africa considering video games under the meaning of ‘cinematograph film’ and giving them protection under the same.

The Indian Judiciary has not explicitly dealt with any such case interpreting the exact interpretation but in an Indian landmark case of Sony v. Harmeet Singh and Ors, in this case Sony has installed certain technical protection measures which the defendant tried to disturb it by modifying the consoles for playing pirated video games. This was the first case where the issue related to copyright infringement and video games were dealt.

At the same point of time there have been case where the YouTube Streamer should be given exemption considering the Judicial interpretation in the case of RG Anand v. Deluxe Films where it has been laid down that other than the factor of commercial value of the use, the infringement is considered as the new work is a transformative of the original work or not. It is a type of creativity in which a previously existing expression is used for altogether new purpose and in an innovative new manner than it is not considered as an infringement.

CONCLUSION

There is no specific law dealing with or governing video games and their copyright protection. The judiciary has done a fair job internationally to interpret the protection of video games and video games developer. Also, the motive of the Indian Judiciary should also be protecting the rights, creativity, innovation of the YouTube streamers in India as YouTube is an evolving field to show the creativity and art to a larger mass audience and earn financial benefit from that.

The Judiciary while deciding such issues should keep two points in mind that the rights of the developer, the original creator is not scarified, and he should get the rights over his copyrighted original creation. Also, the rights of the Youtubers must not be sacrificed as the new creative work is even by using the old work but if there is an involvement of creativity, innovation etc. is involved then that is not a copyright infringement. There should be a proper law on protection and usage of video games by developers and YouTuber so that there should be clarity and no violation of rights of the Artist.

References:
  1. Anna Piechówka, When video games meet IP law, WIPO MAGAZINE, 3.7.23.
  2. Himanshu Sinha,Video Game Streaming And Copyright Law, MONDAQ (22.4.23) https://www.mondaq.com/india/copyright/1117250/video-game-streaming-and-copyright-law
  3. Copyright Act of 1957.
  4. Constitution of India 1947.
  5. Golden China TV Game Centre and Others v Nintendo Co Ltd, 1997 (1) SA 405 (SCA).
  6. Brown v. Entertainment Merchants Association 564 U.S. 786.
  7. Sony v. Harmeet Singh and Ors 2012 (51) PTC 419 (Del).
  8. RG Anand v. Deluxe Films AIR 1978 SC 1613.
Author:

*Mr. Sanskar Dubey
BBA.LLB (Hons.), School of Law, Christ University, Bengaluru

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.