Contracts between game publishers / suppliers and creators shall be renegotiated as a consequence of the contract adjustment mechanism provided by the new EU Copyright Directive.
Gaming publishers and gambling suppliers’ bargains with authors and creators are at risk
An envisaged scenario in the video gaming and gambling industry could be that:
- There is a small studio that develops a game, selling it at a low price since they need to become popular as they are a start-up; and
- The publisher or the supplier purchases the game, maybe with limited interest because the studio is not well-known and they don’t have high expectations, but then the game turns out to be a massive success!
Under the regime in place before the new EU Copyright Directive, the publisher / supplier would be celebrating its great deal, while the authors and creators would not have more than what initially contractually agreed. But apparently, the scenario might be disrupted by the EU Copyright Directive.
The impact of the EU copyright contract adjustment principle on the video game and gambling industries
Article 20 of the new EU Copyright Directive introduced the so-called “contract adjustment mechanism” under which
authors and performers or their representatives are entitled to claim additional, appropriate and fair remuneration from the party with whom they entered into a contract for the exploitation of their rights [—] when the remuneration originally agreed turns out to be disproportionately low compared to all the subsequent relevant revenues derived from the exploitation of the works or performances.
Based on a strict interpretation of the above-mentioned rule, it will require video game publishers and gambling suppliers
- to thoroughly describe in the agreement with authors and creators all the elements that led to the calculation of the agreed remuneration since such features will be potentially taken into account by a court to assess whether the compensation was fair;
- structure the remuneration clause in such agreements with a mechanic that enables price adjustments according to criteria identified therein to avoid that the parties end up litigating on the remuneration adjustment mechanic;
- disclose to authors and creators the information necessary to understand the level of revenues generated through the game, setting such disclosure to the very minimum required to comply with the regulatory obligation; and
- provide a reassessment of the fair remuneration over time since a video game initially unpopular might all of a sudden become very famous.
We have not identified in the EU member states substantial inconsistencies in the implementation of the EU Copyright Directive on this topic since the principle is quite detailed in the directive. In particular, the tricky element would be whether the parties can contractually overhaul, providing that it is not applicable to the agreement.
There is no doubt that this provision will have a substantial impact on the video game and gambling markets. The industry should be ready for it and agree on standard terms to regulate the contract adjustment mechanism; otherwise, significant disputes might arise. This process will need a renegotiation of several agreements. Indeed, the issue is whether the same principle will also apply to agreements entered before the effective date of the EU Copyright Directive, which might have a considerable impact even on the balance sheet of major publishers.
What is the impact on eSports?
In a previous article, “eSports and copyright protection of choreography and UGC,” it was discussed whether eSports dance choreography can be copyright protected and the level of protection of user-generated content in video games.
If copyright protection is extended to such components of the games, the video game and the eSports industries might be heavily impacted. The requirement to renegotiate agreements with authors would extend to the creators of such material. And, given the recent popularity of, for instance, the L dance, the issue relating to the fair remuneration of authors might lead to significant disputes.