eSports - what are they and where to from here?
The Cambridge Dictionary defines eSports (also known as electronic sports) as being:
"the activity of playing computer games against other people on the internet, often for money, and often watched by other people using the internet, sometimes at special organised events".
With the rise in popularity of streaming services and interactive entertainment, eSports are continuing to blur the lines between the new cultural phenomenon of online competitive multiplayer sports and that of traditional sports. Through streaming and live events-based revenue, even casual gamers are now able to turn a hobby into a lucrative career, through large sponsorship deals and prize money earnings associated with eSports leagues and tournaments.
By the end of 2023, eSports are expected to generate nearly US$1.6 billion in revenues globally. The effects of COVID-19 and recent next-gen console releases have played a prominent role in eSports' current exponential growth and corresponding user-generated content (UGC) across games.
The 2022 Commonwealth Esports Championships took place as a pilot program to determine whether eSports games similar to Dota 2, Rocket League and eFootball could be permanently included in future Commonwealth games (as soon as the 2026 Victoria Games). Likewise, the International Olympic Committee continues to promote Olympic Virtual Sports Festivals, with a view to opening the door for eSports to be included as part of the 2028 LA Games.1 2 3
Copyright may subsist in various forms in video games, including but not limited to:
- Computer source code and object code
- Audio (e.g. character voices, sound effects, music or commentary)
- Images (e.g. character or avatar designs, visual arrangements or logos)
- Text (player or team names)
- Video (e.g. player animations, cut-scenes or gameplay footage)
Copyright issues in 'streaming' (broadcasting) video games
As copyright is usually owned by the game publishers and developer studios, eSports players (or their casual gamer counterparts) that stream or upload their own participation in eSports (e.g. to Twitch, YouTube Gaming, Facebook Gaming or Reddit Live) without permission of the relevant copyright owner, may be liable for copyright infringement (section 36 Copyright Act 1968). This can be problematic for streamers who commit considerable time, effort and money to develop value in their streaming channel, which is chiefly reliant on copyrighted video game content in which they as streamer have no enforceable legal right or equitable interest.
For now, Australian copyright law applies to video games in the same way it does to other works, or 'subject matter other than works' capable of being afforded copyright protection. Organisers of eSports leagues and tournaments, streaming platforms or individual players that intend to stream gameplay footage, are best served by contacting the relevant publisher or developer studio for permission (i.e. a licence) to reproduce, publish, communicate or otherwise adapt the copyrighted material in question.
Copyright issues regarding in-game user-generated content
UGC and a lack of copyright protection presents an additional challenge in the realm of eSports and online gaming generally. UGC may comprise (amongst other things):
- Virtual collectibles or goods such as 'skins' (e.g. Costumes or weaponry and armour decorations)
- Unique character or avatar creations (usually based on modifying character appearance, emotes or sound effects)
- Maps, gameplay, or storyline creation through 'mods' and map editors (for example as seen in previous World of Warcraft games, the Halo series, Tony Hawk's Underground games or Minecraft).
Players may want to exert their copyright (or moral rights) over the UGC against developers within the game itself, as there may be considerable demand for the content by fellow users, or they may believe they deserve some sort of recognition for their UGC. However, there is typically no contractional remedy available for creators of UGC against the game developer or other users who may freely copy or also use the UGC. It is ultimately the developer who normally retains copyright ownership and any moral rights in relation to the UCG. Alternatively, the developer is usually given a licence to freely use any UCG under a public end-user licence agreement (EULA) players must execute before playing a particular game.
For example, at the date of this article Electronic Arts under its User Agreement which governs access and use of products, content and services offered by EA and its subsidiaries states that:
'The EA Services include Content and Entitlements. Content is the software, technology, text, forum posts, chat posts, profiles, widgets, messages, links, emails, music, sound, graphics, pictures, video, code, and all audio visual or other material appearing on or coming from EA Services, as well as the design and appearance of our websites. Content also includes user-generated Content ("UGC"). UGC includes EA Account personas, forum posts, profile content and other Content contributed by users to EA Services. All Content is either owned by EA or its licensors, or is licensed to EA.' (emphasis added).
'When you contribute to UGC, you grant to EA, its licensors and licensees a non-exclusive, perpetual, transferable, worldwide, sublicensable license to use, host, store, reproduce, modify, create derivative works, publicly perform, publicly display or otherwise transmit and communicate the UGC, or any portion of it, in any manner or form and in any medium or forum, whether now known or later devised, without notice, payment or attribution of any kind to you or any third party. You also grant to all other users who can access and use your works from, and otherwise communicate and distribute your UGC on or through the relevant EA Service without further notice, attribution or compensation to you' (emphasis added).
Enforcing rights over copyrighted material
Failure to acquire a licence for copyrighted material from copyright owners may result in copyright owners:
- Issuing copyright infringement or takedown notices, whereby gamers alleged to have infringed copyright are given a limited timeframe within which to take down any infringing content.
For example, in 2020 'Beyond the Summit' (one of the world's largest broadcasting studios and tournament organisers) had to take down thousands of Dota 3 videos due to a DCMA (Digital Millennium Copyright Act) claim under United States law. Similarly, gaming giant Nintendo has reportedly been very active towards the end of 2022 in issuing DCMA takedown notices for leaked footage from the new release Pokémon Scarlet and Pokémon Violet video games, allegedly appearing on Twitch video streams and Twitter posts. Given this, there is no reason why comparable takedown notices could not also be issued under Australia's copyright law.
- Directly commencing an action for copyright infringement.
If copyright infringement has occurred, including in situations where a 'fair dealing defence' has been unsuccessfully raised, this may result in a variety of consequences for infringers. On the one hand infringers may have their streaming and gaming accounts suspended (in part or full) for a certain period of time. Besides this, an injunction to prevent the infringing conduct from taking place again, and either damages or an account of profits may be granted by a court. Additional damages may also be awarded depending on the flagrancy of the breach, if the infringer received a benefit because of the infringement, or if a court finds a need to deter similar infringement by others. (sections 40-42 and 115 Copyright Act 1968 (Cth)).
Streaming platforms or gamers should consider whether they have adequate licences in place from developers which permit them to authorise or engage in streaming of gameplay footage. Game developers typically set out the rights and limitations of users under EULAs.
Unless there is a change in law in relation to UGC or software owners change the terms of their licences, eSport professionals and casual gamers in Australia most likely have no rights in respect of their UGC.
1 See: https://www.abc.net.au/news/2022-08-08/commonwealth-games-trials-esports-event/101310100#:~:text=Sport-,Esports%20could%20be%20included%20in%20Victoria%202026%20Commonwealth%20Games,inaugural%20pilot%20event%20in%20Birmingham&text=Athletes%20like%20Emma%20McKeon%2C%20Georgia,day%20be%20up%20there%20too