Video games, as a form of entertainment, has existed for more than half a century now. Spacewar, created by MIT student Steven Russel in 1961, is considered the first ever video game.1 Video games contain multiple art forms, such as music, scripts, plots, video, paintings, and characters, that involve human interaction while executing the game with a computer program on specific hardware. They are complex works of authorship and are not created as single, simple works, but an amalgamation of individual elements that can each individually be copyrighted (i.e., the characters in a given video game, its soundtrack, settings, audiovisual parts, etc.) if they achieve a certain level of originality and creativity.2
However, the advent of internet and the technological advancements, has positively boosted the gaming industry. The global games market was estimated to be generating revenues of US$ 159.3 billion, a growth of 9.3% over the previous year3. The significant growth of the gaming industry in 2020 is due to the COVID-19 pandemic, which forced countries to impose lockdowns and the people to stay indoors for weeks at length.
The increasing popularity of video games has led to organization of various esports competitions. Esports are video games that are played in a highly organized competitive environment and can range from popular, team-oriented multiplayer online battle arenas (MOBAs), to single player first person shooters, to survival battle royales, to virtual reconstructions of physical sports. 4 Players from across the world compete in esports competitions, with the Asian Games 2018 organising esports as a demonstration event. These events are live streamed on platforms such as YouTube and Twitch, with millions of dollars of prize money at stake.
Professional gamers have developed huge popularity and fan following in the gaming community and upload video game reviews. In this article, the author shall discuss whether live streaming of gameplays or game run-throughs/ reviews, can be considered as fair dealing under the Indian Copyright Act, 1957.
COPYRIGHT ACT, 1957 AND VIDEO GAMES
The Copyright Act, 1957 (“Act”), does not specifically provide protection for video games or categorize them under any of the heads for original works under the Act. However, the Ministry of Electronics and Information Technology (“MEITY”) recognizes video games as ‘multimedia products’ which can be granted copyright protection under the Act. MEITY defines ‘Multimedia’ as ‘a computer based interactive communications process that includes a combination of writing, sound, image, still images, animation, video, computer software or interactivity content forms’. 5 It further states that multimedia applications include the World Wide Web, Adobe/Macromedia Director, interactive TV, computer games, etc. Thus, computer games are recognized as a multimedia application. MEITY further acknowledges that since multimedia is a combination of different elements, the copyright protection for such applications must be dealt in various classes. It states that animation or video games must be protected as cinematographic films as defined under Section 2(f) of the Act. This category includes visual recording, moving image, sound recording accompanying a visual recording, such as movies or video games and the term of copyright shall be 60 years, which is counted from the date of publication.
While there is not enough judicial precedent regarding copyrightablity of video games, the Delhi High Court in Sony Computer Entertainment Europe Ltd. v. Harmeet Singh6 found the defendant guilty of copyright infringement. The defendant had modified Playstation consoles to enable pirated games as well as sale of pirated games without requisite license. The court passed an interim order holding that the defendant had violated Section 65A of the Act which grants protection of technological measures taken by the owner of a work for protecting the rights conferred under the Act.
FAIR DEALING IN VIDEO GAME REVIEWS
While most of the online streaming services obtain due permission before livestreaming gameplays, sometimes gamers stream game content, either game run-throughs or competitive events, without due permission from the game publisher. since these videos derive their source from prior existing work. Such videos are sometimes referred to as ‘Let’s Play’ video which is described as a video of gameplay that is recorded and uploaded to content hosting platforms such as YouTube, Twitch etc. and is generally overlaid with some form of commentary or inputs from the player. These videos vary in length, content, purpose and scale of editing. 7 However, this begs the question whether such reviewers can claim protection under fair use.
Fair dealing and fair use provisions are affirmative defenses to copyright infringement, which aim to prevent ‘rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.’ 8 It allows the creation of new work, which uses and is built upon existing works in a manner that it does not unfairly deprive copyright owners of the original work of the right to control and profit from their works. 9 In India, the Act lists down an exhaustive list of acts under Section 52(1)(a) such as private or personal use, criticism or review, reporting of current events, and is restrictive in nature. In the United States of America, fair dealing provisions are flexible and inclusive. Section 107 of the US Copyright Act lays down ‘four-factor test’ for determining fair use of a work, which are as follows:
the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes, i.e., is it “transformative work”;
the nature of the copyrighted work;
amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.
In Campbell v. Acuff-Rose Music, Inc. 10, the Supreme Court of the United States of America held that the four factors should be read together and not in isolation from one another. The holistic reading of the four factors should be used to determine whether the doctrine of fair use would apply or not in a particular case. The courts in India have gradually adopted the four-factor fair use test while dealing with copyright infringement cases, thereby expanding the ambit of ‘fair dealing’ provision as provided under Section 52 of the Act. The Delhi High Court in The Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing House and Ors. 11 held that the ‘fair dealing’ provisions are rigid and must be interpreted liberally in consonance with the objectives of the copyright law and “resort must be made to the principles enunciated by the courts to identify fair use.” In India TV Independent News Service v. Yashraj Films Pvt. Ltd. 12, the Delhi High Court stated that the ‘four-factor test’ as applicable in the United States is also applicable in India when determining ‘fair use’ of a work under S. 52(1)(a) of the Act.
A work is considered transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message, and does not merely supersedes the character of the original work in an insignificant or superficial manner” 13 and reviews, criticizes or comments on the primary work. The gameplay review videos will generally be considered transformative as the objective is to criticize/ comment on the game, rather than provide interactive media for playing the game.
Once a work is found to be transformative, whether the work is commercial or not is not of much relevance, since the video game review is transformative in nature. While determining the purpose and character of use, the courts will consider the quantity and the quality of the original work used in the subsequent work. The subsequent use must only be to the extent ‘reasonable in relation to the purpose of the copying.’ 14 Any video which shows a substantial portion of the original video game without any added commentary or inputs from the reviewer will fall foul of this test. Further, it does not compete with the original work in terms of potential market impact and hence, the fourth factor is also not relevant. the other factors such as the nature of work and whether its use is commercial, the extent to which it was copied (wholly or substantially), and whether it will have an effect of use on the potential market of the copyrighted work, shall not have substantial basis.
Therefore, while video game reviews, which include commentary or inputs of the reviewer, may pass the four-factor fair use test as they would be transformative works. However, these shall be subject to each game review to determine the inputs of the reviewer and the nature of the game. The esports competitions cannot be safeguarded under fair use as they are in the same primary market as the original work and provide a platform to users to participate in prize competitions. Further, some game publishers are organisers of major esports events worldwide for their game and any other person/ entity organizing such games without due authority shall invite legal action from the game publishers.
1 “The Legal Status of Video Games: Comparative Analysis in National Approaches”, Mr. Andy Ramos, Ms. Laura Lopez, Mr. Anxo Rodriguez, Mr. Tim Meng, Mr. Stan Abrams, available at https://www.wipo.int/export/sites/www/copyright/en/creative_industries/pdf/video_games.pdf
3 “The World’s 2.7 Billion Gamers Will Spend $159.3 Billion on Games in 2020; The Market Will Surpass $200 Billion by 2023”, Mr. Tom Wijman, available at https://newzoo.com/insights/articles/newzoo-games-market-numbers-revenues-and-audience-2020-2023/
4 “What are Esports”, Marc Leroux-Parra, available at https://hir.harvard.edu/esports-part-1-what-are-esports/
5 FAQs on IPR, Ministry of Electronics and Information Technology, available at https://www.meity.gov.in/content/copyright
6 CS(OS) 1725/2012, order dated 31.05.2012.
7 “Fair Play: Copyright Issues and Fair Use in YouTube “Let’s Plays” and Video Game Livestreams”, Sebastian C. Mija, 7(1) AM. U. INTELL. PROP. BRIEF 1, 37 (2015)
8 Iowa State University v. American Broadcasting, 621 F.2d 57, 60 (2d Cir. 1980).
9 “Copyright and Fair Use: A Guide for the Harvard Community”, Harvard University Office of the General Counsel, 2016, available at https://ogc.harvard.edu/files/ogc/files/ogc_copyright_and_fair_use_guide_5-31-16.pdf
10 510 U.S. 569 (1994).
11 2008 (38) PTC 385 (Del).
12 192 (2012) DLT 502.
13 Supra 11.
14 Supra 10.
Mr. Pratyush Pandey, Associate, TMT Law Practice
Pratyush is a counsel at TMT Law Practice. He is a graduate of National Law University Delhi (2017). His core areas of interest are sports, media and entertainment laws and intellectual property rights. He regularly advises clients on media and broadcasting rights, consultancy, licensing, sponsorship agreements, intellectual property laws, dispute resolution, league formulation, and contract law.