Streaming
Video games are about connection, interaction and community, which set them apart from other types of digital culture and media. During the last decade, we have witnessed an intensification of players’ engagement in video games, party driven by live and on-demand streaming. Streaming is now an essential part of the marketing toolkit for publishers and developers. In terms of streaming platforms, the space is currently dominated by Twitch, with YouTube and Facebook Gaming following behind.[1] These platforms allow streamers to monetize streaming through advertising, viewer subscriptions, and donations.
Categories
We can distinguish between three categories of streaming: livestreaming, e-sports, and “speedrunning”.
- Livestreaming involves a player broadcasting themselves playing a video game, typically with a commentary, for a real-time online audience. This is similar to Let’s Play videos, but these are edited and curated, whereas livestreams happen in real time without any polishing.
- E-sports refer to competitive gaming, often at a professional or semi-professional level. Esports tournaments are frequently livestreamed to a global audience, with the market worldwide is projected to reach a revenue of US$4.3bn in 2024[2].
- Speedrunning involves completing a game, or a portion of a game, as fast as possible.[3]
Legal Challenges
There are several legal challenges that arise due to the way these streams exploit and distribute various aspects of video games[4].
Unauthorised video game streams, such as those that occur during e-sports tournaments or Let’s Play videos, can potentially result in copyright infringement. This is because they would normally involve the reproduction, public performance, distribution, or communication of copyrighted material from the video game or its components. The final assessment of whether this constitutes an infringement or not will however depend on the jurisdiction in question as there may be applicable copyright exceptions relevant to Let’s Play videos and streaming. In general, jurisdictions with robust limitations and exceptions, such as Canada where we can find a specific exception for user-generated content, or the US, which has a broad open-ended system of copyright exceptions, will be more receptive to streaming practices. Even more so if there is an extensive commentary or performance by the player included in the streaming video, this might be permitted under fair use for being transformative. Conversely, in jurisdictions such as the EU and the UK, which operate a closed list of exceptions, it can be more difficult for streamers to justify such activities, as they have to fit them into more narrowly interpreted exceptions of criticism or review. In addition, if the streaming is monetized this potentially creates another hurdle in the form of a breach of contract. If the End User License Agreement (EULA) includes a provision that the copy of the game can be played for private and non-commercial purposes only, commercial exploitation of the stream may constitute a breach of the EULA[5].
Recommendations
Broadly speaking, the video game industry accepts these community-based interactions and practices since they offer significant economic value to the video game companies. This includes new opportunities for marketing and promotion, monetisation, community-building and player engagement. Even though legally, this remains a grey area that would benefit from further clarification, any uncertainties regarding copyright can be addressed through carefully written EULAs and Terms of Service (ToS).[6]
Overall, video game streaming is a valuable addition to the video game ecosystem. It generates excitement, fosters communities, provides marketing opportunities, and opens new revenue streams for developers, publishers, and players alike.
[1] Number of hours watched on leading gaming live stream platforms worldwide in 3rd quarter 2022, by platform (Statista, 1 June 2024) <https://www.statista.com/statistics/1030795/hours-watched-streamlabs-platform/>.
[2] E-sports – Worldwide (Statista, 1 June 2024) <https://www.statista.com/outlook/amo/esports/worldwide>.
[3] James Woodcock, “The Impacts of Live Streaming and Twitch.tv on the Video Game Industry” (jamiewoodcock.net, 3 January 2000) <https://www.jamiewoodcock.net/blog/the-impacts-of-live-streaming-and-twitch-tv-on-the-video-game-industry/>.
[4] G Dimita, YH Lee, M MacDonald, ‘Copyright infringement in the video game industry’, WIPO report, (September 2022) <https://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_15/wipo_ace_15_4.pdf>.
[5] G Dimita, Understanding Intellectual Property in Video Games, WIPO report (November 2023) <https://www.wipo.int/export/sites/www/cooperation/en/docs/ip-video-games.pdf>.
[6] G Dimita, D Greenspan, Mastering the Game: Business and Legal Issues for Video Game Developers – A Training Tool, 2nd edition (2022), pages 44-46.
