User Generated Content (UGC)

User Generated Content (UGC) – is any kind of creative content shared via online platforms which may, or may not, form part of the creators’ professional life. In the game industry, UGC is a term commonly employed to refer to content generated within a game, including player-made skins, avatars, or in-game photography. However, the legal definition of UGC is broader and includes content outwith the game, including Let’s Plays, streams, fan works (including fan fiction, art) and mods. UGC may be made by using integrated content creation and sharing features embedded within the game, or through third party software.

Whilst UGC has been available from the early days of gaming,[1] it is increasingly an important part of game business models and has been used in marketing materials,[2] and to sustain the lifecycle of a game post-release (e.g., through modding).[3] It has also formed the basis of professional careers for game streamers and eSports players.

Regulation

Harmful and offensive content law

Game producers and online platforms may be liable for hosting UGC which is harmful or offensive in nature, for example, a game stream which contains hate speech or content which constitutes harassment of other players. These activities may be prohibited under statutory law against offensive communications (e.g., the UK Communications Act 2003), as well as private contract law as a common condition of [end user licensing agreements]. Online platforms which host UGC containing offensive content may also use private ‘soft’ enforcement mechanisms, such as account bans or suspensions.[4]

Intellectual property law

Ownership of the underlying intellectual property of UGC is a contentious and legally grey area due to the mix of pre-existing content (owned by the game producer) and new content (by the UGC creator) embedded in UGC. Some types of UGC may be considered a new ‘original’ work belonging to the UGC creator, or may have otherwise been made with the benefit of a copyright exception or fair use defence (if it is created for a particular purpose, like criticism and review or parody).[5] More commonly, UGC is classified as a derivative work which may generate ongoing and residual interest from the original game rightsholder or trigger copyright infringement proceedings. In such cases, the online platform or game hosting the content may be compelled to remove the infringing content if they receive a notice-and-takedown request from the game owner.[6] Other jurisdictions, such as the EU, may actively monitor and detect potentially copyright infringing content pre-upload.[7]

Due to the uncertain copyright status of UGC, most game companies set specific rules and restrictions on the types of UGC which can be created, and under what conditions, through private ordering mechanisms, either alongside, or as part of, an [end user licensing agreement].  Typically, these mechanisms permit activities such as the creation of game videos and streams whilst placing certain restrictions on e.g., [monetisation] mechanics for that content.[8] Any such agreements typically include an automatic licence, granted by the user in favour of the game producer, to permit the producer to use any content they have created. This licence usually includes pragmatic permissions to enable the game producer to e.g., host and transfer the content to other users on the game, but may also include broader permissions for the game producer to use the UGC in marketing or promotional materials.

Other

UGC may have implications for other areas of law, including (but not limited to): data protection law in respect of data gathering mechanics employed in embedded UGC creation tools.

[1] Subject of early litigation in Micro Star v FormGen, 154 F3d 1107.

[2] See e.g., the use of the ‘Leeroy Jenkins’ character by Blizzard: Blizzard ‘Hearthstone Leeroy Jenkins Card Back Collector’s Edition Pin’ <https://uk.gear.blizzard.com/products/hstnhp0004-hearthstone-leeroy-jenkins-card-back-collectors-edition-pin> accessed 27 March 2024.

[3] Notably mods to Cyberpunk:2077 pre-patch and DLC, see Irwin D ‘The best Cyberpunk 2077 mods’ <https://www.pcgamesn.com/cyberpunk-2077/mods-best> accessed 27 March 2024.

[4] See e.g., Musil S, Twitch suspends popular streamers after use of homophobic language’ (2018) <https://www.cnet.com/tech/gaming/twitch-suspends-popular-streamers-after-use-of-homophobic-language/> accessed 27 March 2024.

[5] Some countries have explicit UGC exceptions – see e.g., Canada in CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 SCR 339

[6] Digital Millennium Copyright Act, s512©

[7] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC [2019] OJ L 130/92, Article 17.

[8] You Can Play (2021) <https://www.copyrightevidence.org/ycp/overview> accessed 27 March 2024.