Snippets of videos of a videogame to give recommendations and show eSports competitions might be limited by copyright law, but there are exemptions.
Here is a very interesting article from my colleague Elena Varese, as part of our series of articles on eSports, I hope you will enjoy it!
Videogames as copyright protected works
Publications of sharing tips on how to complete videogames and maximize bonuses might increase with the expansion of the eSports competitions. The same applies to platforms streaming videogames alone or together with eSports actions of the various players. Yet are these activities possible without the copyright holders’ consent?
Under Italian law, videogames are protected as a whole as copyright works like movies, whilst their frames could be protected as simple photographies (with protection lasting 20 years from their publication). Following a different opinion, videogame frames could be excluded from protection, as they may be considered similar to documents, as provided by Art. 87, the last sentence of the Italian Copyright Law.
The fair use exception for eSports under copyright law
Assuming that videogame excerpts, such as those of an eSports competition, are a protectable subject matter, Article 70, Paragraph 1 of Italian Copyright Law provides a “free use” exception for the use of part of a copyrighted work for the purpose of criticism, comment, news reporting, teaching or research, within the limits justified by such purpose and provided that such a use does not interfere with the economic exploitation of the work.
Article 70, Paragraph 2, Italian copyright law provides for the possibility of making available images or music free of charge over the Internet, provided that they are in “low resolution” and only if the use of these works is not for profit. Also, in this case, use is subject to certain conditions: the didactic or scientific purpose, the degradation of published works and the absence of profit in sharing such contents.
In interpreting Article 70, Paragraph 1, of Italian Copyright Law, the Supreme Court observed that the quotation of work can be considered lawful only when it is directed to the making of a second autonomous work that embeds the original one. Further, the quotation must be limited to the extent justified by the relevant purposes and not be in competition with all the possible markets of exploitation of the original work.
It is questionable whether this last principle would also apply to the concept of “use made for profit” relevant for the application of Article 70, Paragraph 2 of Italian Copyright Law. Case law is divided on the definition of “use made for profit”. Traditionally, the execution of works within a profit-making activity is considered as an economic use reserved to the author in the off-line world, regardless of the actual profit achieved. Yet, if we apply this principle to the online context, the ubiquitous advertising business model would always determine the existence of commercial activity, even if the actual profit is limited.
Bearing the above principles in mind and in the absence of an established definition of “use made for profit”,
- A first obstacle to the application of the above-mentioned copyright fair use exceptions to videogame publications, including those in eSports, might be the fact that videogame single frames could be considered as autonomous copyright works, therefore, it would not be possible to limit reproduction to “parts of a copyrighted works”, as requested by Article 70, Paragraph 1, ICL.
- Secondly, it could be argued that the making of a book including videogame frames and literary parts explaining how to earn bonuses and complete the most difficult levels amounts to an autonomous copyright work. And the same could be held regarding most broadcasters that are streaming the gameplay with commentaries and in most cases, they interact with their viewers. In addition, in both instances, the purpose to compare the best strategies of play might well amount to a “discussion purpose”.
However, the aim of a publisher is clearly commercial and might ultimately interfere with a possible secondary market that videogame producers could be willing to enter. Similarly, the broadcaster’s use is to gain a viewership over streaming platforms and in many cases earn money based on his popularity and through the exercise of a continuous and organized activity.
What is the impact of the exemption on the videogame market?
It is still to be observed that the effect of the broadcast or the book on the potential market is unlikely to diminish the demand for the videogame.
On the contrary, the broadcast gives the viewer a taste of the game, increase exposure, and is likely to drive up demand for the game. But what if videogame producers decide to control the secondary market of their own products and set up an official book on how to complete the game or create a branded entertainment platform of tournaments over their own games?
There might be room to argue copyright infringement, at least on the ground that the contested use is in competition with all the possible markets of exploitation of the original work and that such a use is made for profit, given that certain players are considered now as videogame stars and sector professionals, who make more than a living over their “gaming” activities. However, the issue shall be considered more broadly from an antitrust perspective, at least as far as the copyright holder, who wishes to control the secondary market, is in a dominant position.
Conclusively, publishers and platforms who want to rely on fair use exceptions over videogames under current Italian law are likely to hear from courts “Thank You Mario! But our Princess is in another castle!”.
You may find interesting on the same topic the article “eSports – Advergaming and the new frontier of advertising law and image rights” and read our eSports law book “The legal challenges of eSports“.