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Copyright and Esports:
Legal Considerations
Equitable solutions for protection of Players’ performances
and Broadcaster’s Rights
-Manvendra Singh Jadon, Ex-Consultant and Legal Associate
WHAT IS ‘ESPORTS’
Basic
• In common parlance, esports is a Virtual Progeny in the lineage of Traditional Sports. Esports
encapsulates the experience of traditional competitive sports like Football, Cricket and Basketball etc.
Intermediate
• Esports involve two primary constituents: Video Games and Competition. For example, several
competitors playing a video game at a small video game parlor on a server in their locality would be
considered ‘esports’.
Complex
• Esports involves an active set of two players or several players/teams competing in a tournament
over an electronic medium. In the process, they constantly interact with video games to bring about
a finality outcome before a large audience across an array of digital and non-digital platforms.
ECONOMICS OF ESPORTS
PARTIES AT PLAY
Video Game Publishers Players
Tournament Organizers
THE ROLE OF COPYRIGHT IN ESPORTS
In the majority of countries including India, and according to the Berne Convention, copyright protection is
obtained automatically without the need for registration or other formalities. Most countries nonetheless have a
system in place to allow for the voluntary registration of works.
Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and
artistic works. Works covered by copyright range from books, video games, music, paintings, sculpture, and films,
to computer programs, databases, advertisements, maps, and technical drawings.
There are two types of rights under copyright:
economic rights, which allow the rights owner to derive financial reward from the use of their works by
others; moral rights, which protect the non-economic interests of the author.
PIVOTAL QUESTIONS
Are video games copyright-able? If yes, will copyright owners have an
absolute rights on it’s derivatives and downstream use?
Whether players who perform a video game in an esports tournament
create new copyrighted content ? If yes, will it be a novel copyright or a
related right?
Does tournament organizers as broadcasters own any copyright on the
displayed content? If yes, how does licensing comes into play?
VIDEO GAME COPYRIGHT
Underlying Code
Audio Visual
Elements
Gameplay
• § 2 (o) of the Copyright Act 1957 classifies a computer programme as a literary work. The definition is wide enough to encompass a
mutable underlying code for a video game. An underlying game code can be protected as a source or object code.
• Under § 13 (1), the Copyright Act of India further protects the audio visual elements of the game.
• The Indian copyright manual also grants the status of a cinematograph film (visual recording) to video games under § 2(f) and
further recognizes the publisher as a producer under § 2(uu).
• India has not seen any case law that purports to define the ambit of video game copyright.
• The bone of contention is the assumption that gameplay of a video game can be copyrighted. If one can observe from the picture above,
the gameplay of a video game is derived from the permutations and combinations used by the video game player and not alone
by the developer who wrote the code and produced the audio visual elements.
• The audiovisual output of a video game is also inherently not mechanical like a cinematic film. The audiovisual elements of a video
game, which the Office purports to protect through the extension of cinematograph films’ definition to the video game, are just the leeway
to perceive the underlying code.
• From a basic understanding, it can be argued that video games are unlike cinematographic films because they are interactive and not
mechanical. Secondly, the interaction is borne out of the synthesis of contribution from several parties. Therefore it is logical that only
specific elements are provided copyright and not their interactive display.
VIDEO GAME PERFORMANCES IN ESPORTS
• The player’s interaction is something that enhances the copyright of the video game elements and fulfils the aim of creating a balance between
creative output and public consumption of creativity under the aegis of copyright law. Under the judicial exposition of Eastern Book Company
v. D.B. Modak, the bar of determining copyright is lowered to the notion of ‘favour of the minimum requirement of creativity.’ A player’s
performance can be considered ‘work’ of authorship on this ground because it can generate an unrelated series of images without
repetition, possesses original avatars, and can be fixated by saving the game on a hard drive or the cloud.
• For example, while casually playing a game of C.S.:G.O., quick mouse clicks and rapid inputs might not qualify as ‘work’ of authorship because
they are nothing more than functional input to experience the game. But mastering the skill of using a knife to kill in the opposition’s camp during
sensitive moments of the game instead of using a fancied sniper rifle from a distance is unique to the particular play of a specific gamer and is
potentially creative. Modern games require skill to achieve competitive expert status and creative output that makes the game behave in
a particular manner, out of the possibilities limited by the programmer. The best illustration would be how ‘Football Intelligence’ works in
the video game FIFA 20 by Electronic Arts.
• Unlike the Baltimore Orioles judgment in US, Indian courts in cases like Akuate Internet Services Pvt. v. Star India Pvt. Ltd. & Anr have
consistently rejected any semblance of copyright with performance and information generated in sports broadcasts. The same logic will most likely
apply to esports performances. In traditional sports, however, the player delivers the live-action constrained for choices due to natural inhibitions
and the game’s rules. The lack of creativity and ubiquity drive player choices on the field. At the same time, video game performances are
based on a virtual medium of ‘avatars’ controlled solely by players, despite existing in a programmer-devised environment. The
players also exercise combinations that are not limited by the control-set of the game. Hence, there is a possibility, howsoever limited, to
consider video game performances as works of authorship.
• Copyright Act, 1957 offers distinct ‘performers rights’ and ‘moral rights’ for performances under § 38 (A), § 38 (B), and § 39 of the Act.
Performers’ related rights are distinctive from the copyright of the subsumed work. For example, performing singers have ownership over their
song performance, whereas other parties, like lyricists and composers, are the original owners of the song. The wide ambit of the definition of
performance would encompass a video game performance, but it has to be live and avoid conflict with the existing copyrights of the video
game owners. There is no particular qualification under Indian law for a play to be considered a performance apart from being live and non-
trivial. In Neha Bhasin v. Anand Raj Anand & Another , the court declared a singing performance in a studio as protected.
• The discussion does not preclude the fact that if video game players are proven to be performers under the annals of the Act, then they would
retain the right over reproduction, broadcasting, and communication to the public of their live performance.
COPYRIGHT IN TOURNAMENT FEEDS
• As esports are empty vessels of video games without the audience’s enthusiasm, tension, aura, and competitive battleground, tournaments act as
fillers to the void by creating a community around them. When it comes to esports tournaments, the issue of broadcasting is more
prominent. Tournament performances are a little different from merely playing video games in public. Playing video games publicly may not
involve broadcasting the performance, but an esports tournament requires broadcasting.
• Players have the right to stream or broadcast their performances with no restriction. However, the concern herein is the broadcasting by
unlicensed third parties and tournament organizers, considering the organizers don’t possess an express license to broadcast.
• Feeds from hotly contested tournaments are one of the significant sources of revenue in the esports industry. Jurisdictions like India offer moral
rights under § 57, which are inalienable and non-transferable. However, the problem begins under §16 of the Copyright Act. The rule of §16
clarifies that any ‘allied’ right not expressly authorized under the Copyright Act remains unprotected. Broadcasting rights are separately
enunciated in the Act and the right only protects reproduction of signals on a Television.
• Although the Indian Copyright Act of 1957 does not specify, there are broadly three requirements for the copyright to be recognized in a
particular work; a. The work must be original and creative, b. It must be fixed in a tangible medium, and lastly c. It must form the
subject matter of copyright.
• The skirmish is that ‘broadcast’ is not a work in which copyright subsists under §13 of the Copyright Act of 1957. However, considering an
esports tournament broadcast as a protected cinematographic film would not be hyperbole. Primarily, the broadcast features the controller,
i.e., the performer of the game, and the one controlled, i.e., the visual gameplay on display. Like the producer and director of a
cinematographic film, a broadcaster also designs, packages, and projects material with added creativity.
• Player’s performance in an esports tournament is layered with elements like camerawork, visually appealing webcasts, comprehensive live
commentary, the addition of new skins, and other similar positioned additions before the broadcast. Despite being based on video games,
in the end, esports broadcasts and ensuing commentary add several extra layers of transformative works. A division bench of the Delhi
High Court made a rather compelling argument in ESPN Star Sports v. Global Broadcast News Ltd, that Copyright under S. 13 and Broadcast
Reproduction Right under S. 37 can exist at the same time with the same person.
• Tournament Feeds of games like C.S.: G.O., Tekken, FIFA, and PUBG esports tournament feed is more ‘director oriented’ with the
camera angles and zoom-ins, making it a perfect description for ‘auteur theory’ in action. In light of the analysis, we can deduce that if
Indian courts were to decide on the copyright-ability of esports broadcasts, such broadcasts should qualify as cinematographic films under §13(1)
of the Copyright Act of 1957.
CONCLUSION
• The global leap of esports driven by numbers is a clarion call for every stakeholder, publisher’, player and tournament organizer
to join hands and lead the way ahead. Effects of the same are now evident, with players and organizers constantly fighting it
out against publishers to make space for themselves in this multimillion-dollar industry.
• Nevertheless, the multi-layered protection offered by the copyright law to literary and artistic elements in video
games does extend the arms of video game publishers to gobble up the derivative, performative and broadcasting
rights entrusted to third parties
• Although the overall blueprint of the industry has significantly changed in the last decade, licensing is still a potent tool for
publishers to retain their stronghold. This power control of the centre is further added by the financial superiority of video
game publishers over that of tournament organisers and players.
• Despite the standard jurisprudence from court-based litigation in favour of publishers, it is doubtful that the publishers are the
only major stakeholder in the valley of affairs. Competition in the market has driven the rise of players as celebrities and
independent organizers as creators of value.
• Video games are audiovisual works that receive protection for the underlying computer code and artistic elements. In
addition, esports tournament broadcasts and the subsequent footage can be best classified as cinematographic film
copyrights and thus receives protection against unauthorised reproduction. More importantly, video game performances
are works of visual performance, artistic grandeur and mastery of skills and, therefore, protectable against illegitimate use.
THANKS FOR LISTENING

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Copyright and Esports

  • 1. Copyright and Esports: Legal Considerations Equitable solutions for protection of Players’ performances and Broadcaster’s Rights -Manvendra Singh Jadon, Ex-Consultant and Legal Associate
  • 2. WHAT IS ‘ESPORTS’ Basic • In common parlance, esports is a Virtual Progeny in the lineage of Traditional Sports. Esports encapsulates the experience of traditional competitive sports like Football, Cricket and Basketball etc. Intermediate • Esports involve two primary constituents: Video Games and Competition. For example, several competitors playing a video game at a small video game parlor on a server in their locality would be considered ‘esports’. Complex • Esports involves an active set of two players or several players/teams competing in a tournament over an electronic medium. In the process, they constantly interact with video games to bring about a finality outcome before a large audience across an array of digital and non-digital platforms.
  • 4. PARTIES AT PLAY Video Game Publishers Players Tournament Organizers
  • 5. THE ROLE OF COPYRIGHT IN ESPORTS In the majority of countries including India, and according to the Berne Convention, copyright protection is obtained automatically without the need for registration or other formalities. Most countries nonetheless have a system in place to allow for the voluntary registration of works. Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, video games, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings. There are two types of rights under copyright: economic rights, which allow the rights owner to derive financial reward from the use of their works by others; moral rights, which protect the non-economic interests of the author.
  • 6. PIVOTAL QUESTIONS Are video games copyright-able? If yes, will copyright owners have an absolute rights on it’s derivatives and downstream use? Whether players who perform a video game in an esports tournament create new copyrighted content ? If yes, will it be a novel copyright or a related right? Does tournament organizers as broadcasters own any copyright on the displayed content? If yes, how does licensing comes into play?
  • 7. VIDEO GAME COPYRIGHT Underlying Code Audio Visual Elements Gameplay • § 2 (o) of the Copyright Act 1957 classifies a computer programme as a literary work. The definition is wide enough to encompass a mutable underlying code for a video game. An underlying game code can be protected as a source or object code. • Under § 13 (1), the Copyright Act of India further protects the audio visual elements of the game. • The Indian copyright manual also grants the status of a cinematograph film (visual recording) to video games under § 2(f) and further recognizes the publisher as a producer under § 2(uu). • India has not seen any case law that purports to define the ambit of video game copyright. • The bone of contention is the assumption that gameplay of a video game can be copyrighted. If one can observe from the picture above, the gameplay of a video game is derived from the permutations and combinations used by the video game player and not alone by the developer who wrote the code and produced the audio visual elements. • The audiovisual output of a video game is also inherently not mechanical like a cinematic film. The audiovisual elements of a video game, which the Office purports to protect through the extension of cinematograph films’ definition to the video game, are just the leeway to perceive the underlying code. • From a basic understanding, it can be argued that video games are unlike cinematographic films because they are interactive and not mechanical. Secondly, the interaction is borne out of the synthesis of contribution from several parties. Therefore it is logical that only specific elements are provided copyright and not their interactive display.
  • 8. VIDEO GAME PERFORMANCES IN ESPORTS • The player’s interaction is something that enhances the copyright of the video game elements and fulfils the aim of creating a balance between creative output and public consumption of creativity under the aegis of copyright law. Under the judicial exposition of Eastern Book Company v. D.B. Modak, the bar of determining copyright is lowered to the notion of ‘favour of the minimum requirement of creativity.’ A player’s performance can be considered ‘work’ of authorship on this ground because it can generate an unrelated series of images without repetition, possesses original avatars, and can be fixated by saving the game on a hard drive or the cloud. • For example, while casually playing a game of C.S.:G.O., quick mouse clicks and rapid inputs might not qualify as ‘work’ of authorship because they are nothing more than functional input to experience the game. But mastering the skill of using a knife to kill in the opposition’s camp during sensitive moments of the game instead of using a fancied sniper rifle from a distance is unique to the particular play of a specific gamer and is potentially creative. Modern games require skill to achieve competitive expert status and creative output that makes the game behave in a particular manner, out of the possibilities limited by the programmer. The best illustration would be how ‘Football Intelligence’ works in the video game FIFA 20 by Electronic Arts. • Unlike the Baltimore Orioles judgment in US, Indian courts in cases like Akuate Internet Services Pvt. v. Star India Pvt. Ltd. & Anr have consistently rejected any semblance of copyright with performance and information generated in sports broadcasts. The same logic will most likely apply to esports performances. In traditional sports, however, the player delivers the live-action constrained for choices due to natural inhibitions and the game’s rules. The lack of creativity and ubiquity drive player choices on the field. At the same time, video game performances are based on a virtual medium of ‘avatars’ controlled solely by players, despite existing in a programmer-devised environment. The players also exercise combinations that are not limited by the control-set of the game. Hence, there is a possibility, howsoever limited, to consider video game performances as works of authorship. • Copyright Act, 1957 offers distinct ‘performers rights’ and ‘moral rights’ for performances under § 38 (A), § 38 (B), and § 39 of the Act. Performers’ related rights are distinctive from the copyright of the subsumed work. For example, performing singers have ownership over their song performance, whereas other parties, like lyricists and composers, are the original owners of the song. The wide ambit of the definition of performance would encompass a video game performance, but it has to be live and avoid conflict with the existing copyrights of the video game owners. There is no particular qualification under Indian law for a play to be considered a performance apart from being live and non- trivial. In Neha Bhasin v. Anand Raj Anand & Another , the court declared a singing performance in a studio as protected. • The discussion does not preclude the fact that if video game players are proven to be performers under the annals of the Act, then they would retain the right over reproduction, broadcasting, and communication to the public of their live performance.
  • 9. COPYRIGHT IN TOURNAMENT FEEDS • As esports are empty vessels of video games without the audience’s enthusiasm, tension, aura, and competitive battleground, tournaments act as fillers to the void by creating a community around them. When it comes to esports tournaments, the issue of broadcasting is more prominent. Tournament performances are a little different from merely playing video games in public. Playing video games publicly may not involve broadcasting the performance, but an esports tournament requires broadcasting. • Players have the right to stream or broadcast their performances with no restriction. However, the concern herein is the broadcasting by unlicensed third parties and tournament organizers, considering the organizers don’t possess an express license to broadcast. • Feeds from hotly contested tournaments are one of the significant sources of revenue in the esports industry. Jurisdictions like India offer moral rights under § 57, which are inalienable and non-transferable. However, the problem begins under §16 of the Copyright Act. The rule of §16 clarifies that any ‘allied’ right not expressly authorized under the Copyright Act remains unprotected. Broadcasting rights are separately enunciated in the Act and the right only protects reproduction of signals on a Television. • Although the Indian Copyright Act of 1957 does not specify, there are broadly three requirements for the copyright to be recognized in a particular work; a. The work must be original and creative, b. It must be fixed in a tangible medium, and lastly c. It must form the subject matter of copyright. • The skirmish is that ‘broadcast’ is not a work in which copyright subsists under §13 of the Copyright Act of 1957. However, considering an esports tournament broadcast as a protected cinematographic film would not be hyperbole. Primarily, the broadcast features the controller, i.e., the performer of the game, and the one controlled, i.e., the visual gameplay on display. Like the producer and director of a cinematographic film, a broadcaster also designs, packages, and projects material with added creativity. • Player’s performance in an esports tournament is layered with elements like camerawork, visually appealing webcasts, comprehensive live commentary, the addition of new skins, and other similar positioned additions before the broadcast. Despite being based on video games, in the end, esports broadcasts and ensuing commentary add several extra layers of transformative works. A division bench of the Delhi High Court made a rather compelling argument in ESPN Star Sports v. Global Broadcast News Ltd, that Copyright under S. 13 and Broadcast Reproduction Right under S. 37 can exist at the same time with the same person. • Tournament Feeds of games like C.S.: G.O., Tekken, FIFA, and PUBG esports tournament feed is more ‘director oriented’ with the camera angles and zoom-ins, making it a perfect description for ‘auteur theory’ in action. In light of the analysis, we can deduce that if Indian courts were to decide on the copyright-ability of esports broadcasts, such broadcasts should qualify as cinematographic films under §13(1) of the Copyright Act of 1957.
  • 10. CONCLUSION • The global leap of esports driven by numbers is a clarion call for every stakeholder, publisher’, player and tournament organizer to join hands and lead the way ahead. Effects of the same are now evident, with players and organizers constantly fighting it out against publishers to make space for themselves in this multimillion-dollar industry. • Nevertheless, the multi-layered protection offered by the copyright law to literary and artistic elements in video games does extend the arms of video game publishers to gobble up the derivative, performative and broadcasting rights entrusted to third parties • Although the overall blueprint of the industry has significantly changed in the last decade, licensing is still a potent tool for publishers to retain their stronghold. This power control of the centre is further added by the financial superiority of video game publishers over that of tournament organisers and players. • Despite the standard jurisprudence from court-based litigation in favour of publishers, it is doubtful that the publishers are the only major stakeholder in the valley of affairs. Competition in the market has driven the rise of players as celebrities and independent organizers as creators of value. • Video games are audiovisual works that receive protection for the underlying computer code and artistic elements. In addition, esports tournament broadcasts and the subsequent footage can be best classified as cinematographic film copyrights and thus receives protection against unauthorised reproduction. More importantly, video game performances are works of visual performance, artistic grandeur and mastery of skills and, therefore, protectable against illegitimate use.