The interpretation of copyright protection in video game streaming in Europe

Abstract

Video games play an important role in the economic and cultural landscape in Europe and have been the basis for user-generated content of all kinds. Online video gaming in particular has become very popular worldwide. One of the reasons for the ever-increasing popularity of the online video game is that it is available for live game streaming. ‘Let’s Play’ (LP) videos, is a term originated by the gaming community to refer to videos of someone playing a video game, with their audio commentary of the gameplay, which is edited to entertain the audience. LP videos are ‘episodic accounts of a player’s journey’, are very entertaining in nature, and can be broadcasted as pre-recorded videos on video-sharing platforms as well as live streamed. There are three types of LP videos: reviews, playthrough videos with commentary, and playthrough videos without commentary. The first category constitutes reviews of video games. In the second category a viewer can watch the entire or part of the video game being played, while the gamer gives his/her commentary on their experience. In the third category, viewers can watch videos of the entire game being played, with no commentary of the gamer. There is a debate about whether streaming video games online constitutes an act of communication to the public and as such, an online copyright infringement. Article 3 of the Directive 2001/29/EC provides that Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. Given that gamers communicate to the public whole or part of a video game, without the authorisation of the rightholder, it constitutes an unauthorised act of communication to the public. However, economic and strategy reasons have led video game developers to tolerate streaming activity, leaving streamers and platforms that host streaming videos at an uncertain stage regarding the lawfulness of their activities. While review LP videos fall under the exceptions and limitations to the communication to the public right, for the purposes of criticism or review, playthrough videos with and without commentary do not. The thesis interprets the communication to the public right in video game streaming, explores whether hosting service providers (platforms) can effectively take down infringing content as well as whether Internet Service Providers (ISPs) can effectively block access to infringing content. With the deployment of doctrinal and comparative analysis, the thesis brings to the surface the limitations of current online copyright enforcement methods and proposes ways to overcome those obstacles. In an effort to strike a fair balance between the rightholders’ rights, the right to conduct a business, and the freedom of expression, the thesis contributes that for LP videos and live streams to continue to exist, without the risk that they will be taken down after a request made by the rightholders, licence agreement is an alternative and feasible solution. In light of the DSM Directive 2019/790, streaming platforms, such as YouTube and Twitch.tv, perform an act of communication to the public or an act of making available to the public when give the public access to copyright-protected works or other protected subject matter uploaded by its users. Platforms shall be liable for unauthorised act of communication to the public, unless they obtain authorisation from the rightholder, by concluding a licence agreement, or they demonstrate that they have made their best efforts to obtain authorisation. The DSM Directive requires a licence agreement between rightholders and service providers (platforms). It is proposed that the licence agreement, which would allow the streaming of video game content, should be restricted to certain types of video games. Meanwhile, the thesis explores the potential of blockchain technology for the facilitation of the licence agreement. The potential of blockchain technology to process huge amounts of data, to issue digital certificates and the track of the use of non-licensable works would benefit the rightholders, intermediaries, and users.