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GaminLawPills #16: Potential gambling advertising ban in Spain and eSports copyright issues

eSports copyright issues

GaminLawPills #16: Potential gambling advertising ban in Spain and eSports copyright issues

GamingLawPills brings news on the potential gambling advertising ban in Spain and on copyright issues arising from the development of the eSports industry.

🇪🇸 Potential gambling advertising ban in Spain

In accordance with the deal struck between Spanish Prime Minister Pedro Sánchez, who leads the ruling Socialist Workers Party, and the leader of Podemos Party, Pablo Iglesias, gambling operators in Spain could soon face with stricter advertising rules similar to those applicable to tobacco products.

Various sources in the Spanish press reported that the new regulations will form part of the 2019 Budget that states:

[i]t is increasingly common that the broadcasts of sports matches of football or basketball are flooded with ads that offer betting live, making this activity very accessible for all type of people, including minors, generating serious problems of addiction and gambling.”.

The Spanish regulator will also be asked to investigate whether additional preventive measures to increase players’ awareness of their gambling behavior can be added to the existing regulatory framework.

However, the Spanish Minister of Finance clarified that useful guidelines on online gambling advertising restrictions would be released. These will be aimed at clarifying the “environments where the restricting advertisements does not harm consumption.

Should Spain go ahead with the plans, the domestic market would then be in a similar situation as Italy where a blanket ban on all forms of gambling advertising was introduced. But, as mentioned in relating to the Italian gambling advertising ban, we strongly believe that such actions are in breach of the EU laws.

🕹 Copyright in the eSports digital era

The eSports industry is in a period of rapid growth and we discussed about the topic in several posts on GamingTechLaw. But the growth of a market often leads to legal issues, as the new intellectual property issues arisen from the structure of the eSports ecosystem. This column is inspired by the article of our colleagues Richard P. Flaggert and Calvin Mohammadi, named Copyright in esports: a top-heavy power structure, but is it legally sound?

Copyright is aimed at protecting the economic interests of an author of an expressive work. In traditional professional sports leagues, team owners hold and license their own intellectual property while in eSports copyright in any given game is owned by the developer or publisher of that game. In the context of eSports tournaments, publishers typically enter into agreements with the tournaments that govern exploitation of the game at the tournament. Therefore, relationships between video game producers and authors – as well as independent contributors and players – are often regulated by contractual arrangements that do not always guarantee a fair balance in terms of:

  • how creators are remunerated; and
  • how revenues generated from the commercial exploitation of their works are allocated.

This also leads to the fact that the degree of publishers or developers’ control over their games will erode in any significant respect.

In addition, eSports copyright disputes have not yet resulted in a meaningful challenge to the current structure of the eSports industry. It is remarkable the copyright dispute arisen in 2015 with a channel which broadcast a publicly available spectator mode of the games of a popular player. The problem was that a video game streaming service had previously secured the exclusive rights to stream his games asking for a takedown notice against the channel because of the infringements of IP rights. However, in the current understanding of IP in the context of video games, the rights claimed and acquired were not granted to the video game streaming service, but rather were owned exclusively by the game publisher at issue. This dispute raised the issue of whether it is possible for end users to stream around copyright infringement.

Other than the eSports potential issues relating to the unauthorized distribution of copies of video games and the enforcement of copyright on online streams of game play, the last debate is often at the background. It refers to the copyright interests of game players themselves in the streams they create. With regard to the possible creation of original works, it is still unclear whether streamers create original works that are themselves eligible for copyright protection. Therefore, it is still unclear  whether a player of a game may have an IP interest in his game play, for instance as a derivative work that entitles the gamer to protection of his or her performer’s rights.

As eSports continues to evolve into a form of mainstream entertainment, operators should be aware of their rights and copyright issues that surround the games they use as well as the content they create.

I am Vincenzo Giuffrè, you can drop me a line @ [email protected] and read the previous issues of GamingLawPills here. Also don’t forget to try Prisca, our GDPR chatbot described HERE and stay tuned and register to our newsletter!

Vincenzo Giuffré
[email protected]

Trainee Lawyer at DLA Piper IPT Italy, Milan| Graduated Student at Bocconi University: Major Business Law School | Exchange Program at University of Minnesota - W. Mondale Law School | Visiting Student at National University of Singapore (NUS)