Insight: Getting the most out of games streaming

You can stop YouTubers and Twitch users from streaming your games, but should you?

Rouse Legal partner Arty Rajendra reveals the legalities and opportunities around this new form of games media

Online streaming can be extremely lucrative. A recent piece by Forbes reported that streamers can earn up to $100,000 a year streaming games like StarCraft and Magic: The Gathering.

Is this fair? What are the pros and cons of developers and publishers asserting their IP rights?

There is no doubt that unauthorised online streaming for commercial purposes amounts to IP infringement. The InfoSoc Directive requires EU Member States to give copyright owners – usually the games publisher – the exclusive right to authorise or prohibit any communication to the public, including by electronic means, of their copyright works. The Court of Justice of the European Union has held in the context of TV broadcasting that online streaming is a communication to the public. Therefore game streaming is actionable and publishers are able to stop it.

Downloading, uploading and hosting Let’s Play videos is also likely to involve copying the bundle of copyright works which make up a game. This too amounts to copyright infringement or, in certain circumstances, facilitating copyright infringement.

Online streaming may also involve trade mark infringement, as the game’s name and characters, particularly in large well-known franchises, are often protected. Any unauthorised use of those trade marks will be an infringement, although there is a defence if the use relates to the brand owner’s own product and is in accordance with honest commercial practices.

"There is no doubt that unauthorised
online streaming for commercial
purposes amounts to IP infringement."

Arty Rajendra, Rouse Legal

So why aren’t publishers taking action to prevent streaming? As we have seen several times, publishers are careful not to invoke their IP rights in a way that upsets gamers; enforcing directly against streamers could be seen as unduly restrictive.

Publishers could take a cue from the music and film industries and try a different route by going after the intermediaries, such as third-party websites hosting infringing content. Those industries regularly obtain injunctions against ISPs, blocking access to websites hosting pirated films or music – and the law is so developed in this area that the ISPs rarely object to such injunctions.

But publishing companies have arguably gone one step better and are actively engaging with streaming websites. This ensures fair use of IP and revenue sharing from streaming. Twitch counts Microsoft and Sony amongst its commercial partners. Other gaming companies work closely with YouTube to police videos and obtain fair recompense. This seems a good way of keeping the publishers, streamers, viewers and websites happy.

Streaming can also have a positive effect on the public awareness of the game. As reported in MCV, streaming by PewDiePie of Skate 3 renewed public interest to such an extent that EA was asked to reprint copies of the four-year-old game to meet demand. Traditional forms of advertising or promotion are very unlikely to lead to such a resurgence in popularity.

"IP is hugely important for game developers
and publishers. What is difficult is balancing
publishers’ right to fair monetisation, while
also keeping gamers happy."

Arty Rajendra, Rouse Legal

eSports presents a similar challenge. From an IP perspective, there may not be copying as such, but the public performance of a game’s soundtrack amounts to copyright infringement of both the sound recording and the musical work. Reproduction of the soundtrack in front of a live audience needs consent. eSports fixtures are also avidly watched online and that would trigger the engagement of the communication right and the need for a licence.

But again, these are great tournaments and rather than preventing these events, publishers are keener to get in on the action and sponsor them or put on their own events – thereby controlling the revenue stream.

IP is hugely important for game developers and publishers. What is difficult is balancing publishers’ right to fair IP monetisation, while also keeping gamers happy.