There has never been a better time for streamers with more than 100 billion watch time hours, over 40 million active gaming channels, and more than 80,000 YouTube Gaming creators hitting 1,00,000 subscribers.1 The eagerness with which the gaming industry has embraced livestreaming, particularly via platforms like YouTube and Twitch, has been remarkable. In addition to gaming influencers and channels, the rise in popularity of e-sports has cemented the importance of livestreaming as an entertainment commodity. But is livestreaming legal? Permissible?
What's in a game?
Video games come in different forms and styles, and can contain diverse creative elements that are the subject of copyright protection including characters, plot design, visual and graphic designs, sound effects, voice, music, composition. While these diverse creative elements constituted proprietary intellectual property, the theme or the concept of a video game can be protected only in limited circumstances. Whether live streaming platforms hold the legal responsibility for intellectual property infringements is a subject of much controversy.
Multiple companies encourage or discourage livestreaming, depending on their 'go to market' and customer acquisition strategy. Game developers like Blizzard2 have licence agreements with users that allow for streaming if it is non-commercial i.e., if anyone can tune in free. Sony encourages streamers to increase the reach and aspirational value of their game. Nintendo requires streamers to part with a part of the income earned through streaming, otherwise unauthorised streaming may be considered as a copyright infringement.3
Certain live game streaming platforms such as YouTube and Twitch clearly flag issues around copyright and video content to streamers. The terms that permit one to use these platforms clearly require the streamer to ensure that intellectual property associated with the content is respected and lists out the process for requesting a takedown notification. Moreover, they impose the responsibility on streamers to secure rights to copyrighted content in their live stream. They also incorporate a 'take down on notice' policy.
As most dedicated gaming influencers would tell you, a successful livestream is one that is interactive. Live streaming goes beyond merely exhibiting the video game itself when commentary, critique, teaching and the creation of community experience by the streamers is integrated. The transformative nature of a live stream is also a point of deliberation. Though the concept of fair dealing in video games streaming is unexplored judicial terrain, the Copyright Act4 does expressly provide that fair dealing of any work, that is not a computer programme, will not constitute copyright infringement. Given that live streaming is audio-visual in nature, streaming may constitute fair dealing under Indian law.
Trade Mark Law
Livestreaming may not be subject to an action for trade mark infringement since it ought to create no confusion as to origin. While complicated questions around dilution remain, the defences appear to be robust.
Streaming video games has become immensely popular over the last few years. As with any novel industry and nascent ecosystem, this raises questions as to how the law will balance the rights of streamers and game developers? And while the debate rages, the global experience with music sharing websites provide useful indications of where the law would head – and of what risk mitigation steps would be appropriate.
1 https:// www.thehindu.com/sci-tech/technology/livestream-video-games-gaming-india-2021-revenue-stream-alternative- career/article35726295.ece
4 Section 52(1)(a), Copyright Act, 1957
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