By- Kinjal Keya & Aditya Pratap Singh
INTRODUCTION
“Technology evolves faster than legislation” is a statement that has become relevant in the present Digital Age. The infinite capabilities of the virtual world have progressed traditional video games far beyond the remote and indoor sub-culture they were. The gaming industry now offers a highly interactive, collaborative, and competitive virtual community providing a platform for several flourishing opportunities, one of them being the title of this Article – “Live Streaming”. The emergence of these opportunities has given rise to several innovative applications and web platforms for streaming or broadcasting content targeting a wide range of traditional broadcast audiences.
On June 25, 2022, a Spanish Streamer, Ibai, along with other content creators, hosted an event “La Velada Del Año II” on his Twitch Stream, and it became the most concurrently viewed live video game stream ever with over 3.3 million Viewers. This new form of entertainment wherein viewers from across the globe join the streaming platform to watch the other players playing the game and hear them having conversations among themselves is gaining momentum day by day. The emergence of Internet Protocol Television (hereinafter ‘IPTV’) technology has stimulated the growth of such culture. Twitch TV is one of the platforms that currently dominate the marketplace with over 140 active monthly users. Video Games such as League of Legends, Valorant, Clash of Clans, Fortnite, etcetera have one thing in common, i.e., they are in the top 10 list of most watched games on Twitch as on December 2022. This industry has been generating several billion dollars annually for the past few years. In the year 2021 alone, the industry was able to generate $72.2 billion, and it is predicted that the revenue is set to reach $300 Billion by 2025.
Live Streaming of Video Games generally refers to “using PCs, smartphones, tablet computers, and other terminals as carriers, relying on a webpage or client technology to build a virtual network live broadcast room, providing real-time performance creation for game anchors and supporting interactive rewards between anchors and users”. It occurs in two ways – live video or replays of recorded streams.
In today’s era, for most professional gamers, it is not sufficient for them just to own and play the game; the ultimate goal is to gain popularity as a live streamer. However, such phenomena have led to the discovery of a plethora of lacunas in the existing Copyright regimes around the globe. Decade-old copyright regimes have failed to address these questions of copyright. These streams depend on the whims and fancies of the video game developers who hold hostage the creativity of these streamers. Even though these streams have a certain degree of creativity attached to the original work, the traditional copyright regime and existing judicial pronouncements fail to accord protection to these streamers. The audience of the live stream are interested in that particular stream because of the gamers or streamers playing that game and because of their unique expression, which in turn creates original content for entertainment. Thus, the protection of these streamers’ expression is of paramount importance for the growth of the streaming industry.
This Article proposes that the game streamers are not merely reproducing a copyrighted work; with their intellectual labour they produce a new work, and the same should be afforded protection under the Copyright Act of 1957. In Part II, the author analyses whether the streamers’ own game operation behaviour constitutes the creation of a work, thereby creating a new work that is different from the inherent screen of the game in Part II, followed by analysing the legal identity of the streamer in Part III. Herein the author attempts to define the current legal identity of the streamer, i.e., whether they are a “performer” under the Copyright Act or “an author of a derivative work”, or merely a consumer.
Streamers’ Game Operation: Creation of Original Work based on “Interactivity” of Video Games
Video games include diverse creative elements such as audio, videos, animations, and game plot. The essence of the operation of video games is a series of procedural responses generated by pre-edited and fixed computer-coded instruction sequences automatically or in real-time in response to the player’s request. The core content of electronic games can be divided into two parts: The Game Engine and the Game Resource Library: The game engine is essentially a computer program, whereas the game resource library refers to the collection of video, audio, text, pictures, and other materials pre-designed by the game developer and integrated into the program. The running screen generated during the running of the game is a different arrangement and combination of different game materials driven by the game engine.
If it constitutes the corresponding written works, musical works, artworks, and audio-visual works alone, there is no reason why the game running screen as a collection of these materials should not constitute a work protected by copyright law. It would therefore undeniably copyrightable. However, what differentiates video games from traditional audio-visual works is their inherent “interactive” features. The live game screen presented on the screen terminal is not always a simple reproduction of game materials but must take into account the external factor of “player operation” intervention. In other words, the audio-visual materials pre-set by game developers in the program cannot be played automatically and must be “processed” by players to finally form the corresponding dynamic running screen.
The behaviour of the player operating the game is a continuous process of continuously working with the corresponding game materials and finally presenting a picture that can be perceived by the player by sending the game engine an operation command that can be recognized by the program. This also shows that, except for the “cutscenes” displayed in the game and other content beyond the player’s control, the formation of any game running screen is inseparable from the player’s operation, which constantly calls various materials in the game through its own operation Thereby promoting the continuous development of the game process. Although the operation of the game is inseparable from the player’s operation, the game operating screen and the running screen of the game itself are not naturally the same in the online game live stream.
If the “running screen of the game itself” is defined as the collective presentation of music, animation, text, pictures, and other materials that have been designed and fixed by the game developer in advance and hardly change with the player’s operation, then for every player who experiences the game, the content of this part of the screen is almost unchanged, and the players either have no original contribution to the formation of the final screen, or their contribution is insignificant compared with the developer. In this sense, it can be directly concluded that in some online game live broadcasts, the game operation screen of the streamer is basically equivalent to the running screen of the game itself, and the copyright of the final live broadcast screen belongs to the game developer without dispute.
However, video games are highly complex, not only in terms of variety but also in terms of different techniques of playing. In a specific stream, the game operation screen of the streamer may be completely different from the running screen of the online game itself in terms of performance. In other words, the operation skills, strategy selection, resource utilization, role dressing, and other content displayed by the game anchor in the live broadcast of the game may reflect its strong personalization, reflecting the streamer’s own extremely unique views on the rules of the game thereby exceeding the simple patchwork or arrangement of the game’s established materials, thus reaching a certain depth of thought or aesthetic height. At this juncture, the work of the streamer is equivalent to borrowing the developer’s game materials to create a new work that is different from the game running screen in the general sense. He is no longer a pure game consumer.
Copyright essentially protects original expressions. The originality standard of copyright works requires that the work should be independently created by the author, not directly copying or plagiarizing existing works, and on this basis, it should also retain a certain degree of originality. Inventions are distinguished from customary expressions in the public domain. If the streamer’s game operation screen can constitute an original expression, it is definitely not a direct repetition of the game material.
Thus, the premise that the game streamer’s operation screen meets the “originality” standard is that the video game itself reserves enough free creative space for the players of this game so that the players do not need to stick to the established game rules. Instead, the player can make full use of the existing resource materials in the game, and after careful consideration, he can visualize his own game ideas. Only at this time can the game operation behaviour be seen subjectively. Because it is a kind of “creation”, and the objective “creation product” is the dynamic & continuous picture formed by the operation can also break away from the accumulation of the original expression, reflecting the players or game streamers themselves rather than game developers and designers.
Analysis of the legal identity of anchors: Performers or Deductive Authors
Since the game operation of the streamer in the online game live broadcast may form its own original content, the legal status of the streamer cannot be generalized. In mainstream academic discussions, depending on the level of intellectual creativity of the anchor’s game operation behaviour and the presence or absence of additional original content on the game operation screen, the legal identities of game players or streamers can generally be divided into two categories: performers, and deductive authors.
Denial of the identity of the streamer as a “Performer”
Some scholars believe that the operation of the streamer during the game does not meet the originality standard required by the Copyright Law and is not an act of creating a work. However, the streamer has invested a certain amount of intellectual labour in the dissemination of the game objectively. The formation of the picture incorporates the elements of personal expression, so although it cannot be the author, it can be protected by law as a neighbouring right holder.
In other words, in the online game live broadcast, the streamer uses his own operating skills to display the images, music, storyline, etc., in the game so that the audience can perceive and appreciate it, which is tantamount to reproducing the essence of the game. Thus, this process can therefore constitute a “performance”, and the host can also be defined as a “performer”, who enjoys the performer’s right to the game live streaming screen formed by his own operation. In judicial practice, there have also been cases where the behaviour of players showing game operations is defined as performance behaviour.
However, the author does not agree with this point of view but believes that the streamer should not enjoy the status of a “performer” in the live streaming of online games, and his behaviour of live broadcasting game operations does not belong to the performance of game works, nor can it be regulated by the performance right.
“Performance” as per Indian Copyright regime includes the right of live performances or the broadcasting rights. Live performance refers to the process in which the performer reproduces the work to the public on the spot with the help of his own voice, movement, language, or props and musical instruments that can be controlled by others; while broadcasting generally refers to the public dissemination of the live performance to the public after the live performance takes place. However, to determine whether the live streaming of a video game is a live performance or a mechanical performance, an important factor is to determine the place where the “performing act” or “public communication of the performance” is and the location of the audience.
In live broadcasting, streamers can broadcast their game operations live to a large number of viewers through the Internet, and there is obviously a spatial mismatch between the place where the live game broadcast takes place and the place where the online audience receives the live broadcast.
The process of the audience watching online game live broadcasts is different from concert audiences who appreciate the live performances happening on the stage at close range or broadcasts wherein the audience perceives mechanical performances through music playback equipment. However, Streamers send network signals to audiences in real-time through the medium of the Internet, and audiences receive signals at their respective equipment terminals. Therefore, from the perspective of the nature of the live broadcast, it should not belong to the live performance or mechanical performance of game works and cannot be included in the scope of performance rights.
Even if online game live broadcasting should be regulated by the Copyright Law, it may only be “real-time broadcasting of the content of the work to the public through technical equipment”, because this behaviour is not interactive and does not belong to the wireless broadcasting or cable rebroadcasting of the work.
Section 2(qq) of the copyright act defines that a performer may include an actor, dancer, musician, acrobat, singer, snake charmer, conjurer juggler, a person delivering a lecture or any other person who puts up a performance. Article 3 of the Rome Convention defines performers as actors, singers, musicians, dancers, and other persons who perform, sing, speak, recite, play, or otherwise perform literary or artistic works.
In the Indian context, whether Performers Rights are available for performances taking place in the studio as well, or only those conducted before an audience and in a concert-like setting? What is the meaning of “live” under Section 2(q) of the Copyright Act? These questions are still undecided, and there is pending litigation as well also supported by contrary judgments reflecting upon a “humpty-dumpty” jurisprudence.
Furthermore, The Court in the case of Sushila had denied the application of the reasoning in Neha Bhasin and has passed a per-incuriam decision relying upon the Division Bench judgment in the case of IPRS v Aditya Pandey wherein it was stated that “Performers Rights introduced by the 1994 amendment, required a division of the subject pertaining to live performances while communicating the work to the public and when communication was by way of diffusion, hence interpreting the intention of the legislature to segregate such performances as “live” and creating distinct categories within that. Therefore, excluding the scope of online live streamers from the ambit of this protection as the way of diffusion in online streaming finds no mention in the statute. Additionally, in Sushila v Hungama Digital Media Private Ltd, the Delhi District Court at Patiala House has restricted the meaning of live to only those performances made before an audience or in a concerted atmosphere, be it in a studio or otherwise. It has followed the strict literal rule of construction. The series of such rulings emphasise upon the fact that including the live streamers within the ambit of performers is not possible in light of the contemporary statutory provisions of the copyright law and judicial precedents in this regard.
Whether it is the legal provisions of our country or the original text of the international convention, the scope of performers is strictly limited. If streamers are identified as performer, it is tantamount to admitting that the streamer’s live game operation is like a general literary performance, such as drama performance, song singing, musical instrument performance, poetry recitation, etc., with pure literary and artistic value. However, this does not hold true as while streaming, the player’s operation screen is not intended to convey a certain literary or aesthetic value to the outside world but more reflects efficiency and practicality. The role that the streamer plays is more like an athlete in a football game than a pianist on the stage. Thus, under the current legal framework, game streamers do not meet the definition of performers in the sense of copyright law.
Analysing the possibility of the identity of streamer as a “deductive author”
With regard to the legal characterization of the game player’s identity, a certain point of view holds that all the player’s operations do not deviate from the pre-set range of the game program code, and the screen formed by the player’s operation of the game is only a realization of the game developer’s prior arrangement in the program design. One of the various possible solutions is to understand that the game content is conceived by the developer so that the player’s game operation does not produce, and in fact, it is impossible to produce, originality that is separated from the screen of the game itself.
There is also a point of view that the identity of the player should be treated differently according to the type of game, and the identity of the player in different games is different, and the contribution made by the player’s behaviour to the formation of the game screen is roughly continuously distributed between the two extremes of “simply playing without content contribution” and “redefining the game content”.
There are various video game categories and gameplays, and the role played by the anchor in the process of presenting the live game screen needs to be treated differently.
Firstly, in some visual novel-type game live broadcasts, all the anchor needs to do is use the keyboard or mouse to click on specific options on the game screen so as to promote the continuous development of the game plot. In this type of game, the host’s operating space is extremely small, and the developer has pre-set everything, including game characters, environment, dialogue, plot direction, branching routes, and even the ending. It is impossible for streamers or game players to create new game characters, routes, plots, and form new game screens without breaking away from the game settings. For this kind of games that are not very interactive and players have less choices, the operation behaviour of the anchor cannot be constituted as the act of creating an original work.
Secondly, in some competitive games, the streamers and players have significantly more game resources to use, and have more room to play to their full potential in the game, so their legal status is more likely to cause disputes. For example, in games such as “Dota 2” and “League of Legends”, the game itself provides players with a variety of optional characters, equipped with a variety of character skills and a wide range of weapons and equipment, players can boldly use their own imagination to manipulate the selected characters to kill opponents in various amazing ways to win the game. However, no matter how excellent the player’s operating skills are, how precise the character’s positioning is, and how dazzling the skill release is, its operations in the game may be instantaneous or even subconsciously completed without experiencing a creative process. Even if such a process incorporates the player’s personalized way of thinking or unique insights into the game, its purpose may only be to maximize the practical benefits generated by its own operations rather than to convey a certain value to the outside world. In other words, players or streamers do not subjectively have the intention of creating work during the game.
At this point, the game live broadcast screen is essentially equivalent to the sports event screen. The only difference may be that the former is a dynamic screen presented by the streamer calling various data such as pictures, music, and text inherent in the game, while the latter is a dynamic screen presented by athletes with their own The dynamic picture presented by the shape, movement, and posture of the limbs. In theory, sports events are generally considered to lack originality and fixability, and are essentially an objective fact rather than a subjective expression.
As per judicial practice, sports events programs are usually considered by the courts not to be copyrightable. This includes football matches, which are subject to the rules of the game, leaving no room for creative freedom whatsoever. Thus, those attending the event can transmit live streams to social media followers and the wider Internet without infringing copyright. Similarly, in the “London Olympic Games” case, the court denied that sports event programs constitute works protected by copyright law on the grounds that “sports event programs are not aimed at displaying literary, artistic or scientific beauty”.
From the perspective of this theory, it is unimaginable and unnecessary to grant game players the copyright of their own game operations; doing so would be like admitting that sports players can monopolize a certain type of game skills or actions. The role of innovation also objectively hinders the dissemination and imitation of exciting game operations, limiting the entertainment of the game.
Finally, there are certain games that require players to use unrestrained imagination and use all available resources in the game to construct their own characters, objects, buildings, and even the entire virtual world, so that players’ self-thoughts and emotions can be expressed through the game screen.
What this kind of game pursues is not the player’s speed or his fast and agile brain reaction, but to provide the player with a creative platform and window so that the player can freely write, construct and display in the virtual world. For this type of video game, which mainly uses the player’s personalized creation as the main gameplay, it is difficult to say that all the operations displayed by the streamer player in the game live broadcast and the game operation screen formed by the game developer fall into the pre-set results of the game developer. It can even be considered that the game developers did not presume any results at the beginning of designing the game program, and it all depends on the free play and imagination of the players. Under such circumstances, the operation of the streamer shall be considered a kind of creation of the work. As a result, the corresponding online game live broadcast screen also produced a new originality that is different from the original game running screen, forming a new work.
Reference is made to the game “Minecraft” for analysing it as an example. There is no concept of winning or losing in this game. Players can use elements in the game, like building blocks, to freely destroy and transform the game world and build their own trees and houses, rivers, bridges, and entire cities. In this kind of game, what the player pursues is more the creativity of the behaviour than the practicality. Herein the role of streamer becomes important and has the sufficient scope to contribute and mould the experience of the players by the application of his own skillset.
The game operation of the anchor in such a scenario has made an absolute contribution to the formation of the final work, which constitutes a deductive creation, and the anchor also naturally becomes a deductive creation. The author shall enjoy the copyright of the corresponding derivation works.
The identity of such contributors who are enriching the gaming for the audience and providing a different perspective by making their own inputs in terms of skills and knowledge needs to be incorporated into the statutory protection of copyright in India because that would provide them with specific and dedicated protection that shall not be prone to subjectivity. For this purpose, there have already been structural changes in the statute, which have now facilitated a scenario where the identity of streamers can be safeguarded.
For analysing the changes, there needs to be a thorough emphasis on the insertion of Section 31D through the Copyright Amendment Act, 2012 (hereinafter “Amendment Act”), making it mandatory for broadcasting organisations desirous of communicating to the public through broadcast or performance of a literary or musical work and sound recording that has already been published to do so subject to certain compliances. One of these compliances requires broadcasters to give prior notice, in a prescribed manner, of their intention to broadcast the work, stating the duration and territorial coverage of the broadcast, as well as to pay royalties to the owner of rights in each work in the manner and at the rate set by the Copyright Board. The term ‘communication to public’ was amended by the aforesaid Amendment Act [section 2(ff)] to mean making “of any work or performance available for being seen or heard or otherwise enjoyed by the public directly or by and means of display or diffusion other than by issuing physical copies of it, whether simultaneously or at places and times are chosen individually, regardless of whether any member of the public actually sees, hears or otherwise enjoys the work or performance so made available”.
In support of this, the Department of Industrial Policy and Promotion clarified in an office memorandum dated September 5, 2016, that the words “any broadcasting organisation desirous of communicating to the public…” should not be interpreted narrowly to cover only radio and television broadcasting, as the definition of “broadcast” read with “communication to the public” appears to include all types of broadcasts, including internet broadcasting. As a result, the provisions of Section 31D do not apply only to radio and television broadcasting organisations, but also to internet broadcasting organisations.
Therefore, this has facilitated the legal recognition of the identity and role of online live streamers by payment of royalties and defining a compliance system for the streamers this particular legal change has given them official recognition, and it gives the scope for future protection of the identity of the live streamers.
Although the scope for future legal alterations is vast, the complex nature of a variety of streamers can be recognised within the current legal framework. For this, the interpretation of Section 31-D of the Copyright Act shall be liberal and broad, the only impediment in such an approach is the rulings of the Apex Court in the Super Cassettes Industries Ltd. v. Music Broadcast Pvt. Ltd. Case. The Court, in this case, exhibited caution before expanding the scope of the provision. Specifically, the Court ruled against the Appellate Board’s ability to grant a temporary compulsory license in the absence of an express statutory provision conferring such power.
Further, the second major ruling which undermines the protection of internet streamers is the Bombay High Court’s observation in the Tips Industries Case where it agreed with the Plaintiff and adopted a strict interpretation of the provision and elaborated that in the absence of any express statutory provision including internet broadcasting within the purview of Section 31-D, the scope of Section 31-D cannot be expanded to include the same”.
However, there is a clear solution to the problem of not progressing with a reformative approach and granting protection to online gaming streamers, and that is ensuring an effective implementation of Draft Copyright (Amendment) Rules, 2019, wherein all references to radio and television broadcasting in Rules 29 and 31 have been proposed to be amended to “each mode of broadcast”. If implemented efficiently, it would enable statutory protection for all varieties of internet broadcasting.
Another crucial change that can potentially hold the streamers responsible and improve their relation and coordination with game’s creators is providing Commercial Courts with investigative powers (previously the Appellate Board) to keep a vigil upon the copyrights related practices and ensure transparency and accountability. With such minor changes and interpretative altercations, our contemporary legal system can accommodate and effectively protect the distinct identity of the streamer as a deductive author.
CONCLUSION
The question of the legal identity of the streamers of video games and whether their work deserves copyright protection is one emblematic of the twenty-first century and its shifting culture and technology. Unquestionably, as new forms of entertainment are created through innovation, these new industries will necessitate copyright law to evolve accordingly. Streaming is one such industry, with millions of gamers expending tremendous time and effort to create works of profound skill and entertainment.
Guided by the copyright issues of online game live broadcasting, the article selects one specific issue, i.e., the legal position of streamers. From the perspective of topic selection, it has both theoretical and practical research significance. The article primarily focuses on whether the interactive game operation of the game anchor can constitute a derivative work.
Live Streaming of video games, in the past few years, has become a multi-billion-dollar industry and still holds the capability to expand more in the future. The industry has flourished because of the labours of these streamers who still don’t find a place or protection against the current regime. By extending the protection to them, game developers lose nothing, yet streamers gain the barest of protection. Streams, as long as they are creative and competitive in nature, they comfortably fulfill the basic requirements for copyright as derivative work under the Copyright regime. More significantly, by granting protection to streamers’ rights, we would only be respecting the very basis of intellectual property law, i.e., to reward creativity and originality of the author.
(Kenjal Keya and Aditya Pratap law undergraduate at Chanakya National Law University, Patna. The authors may be contacted via email at 2121@cnlu.ac.in & 2209@cnlu.ac.in).
Cite as: Kenjal Keya & Aditya Pratap Singh, ‘Live Streaming of Video Games: Demystifying the Legal Identity of the Game Streamer under Copyright Regime’ 5 May, 2023) <https://rmlnlulawreview.com/live-streaming-of-video-games-demystifying-the-legal-identity-of-the-game-streamer-under-copyright-regime/>date of access.
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