Intellectual Property Rights
Intellectual Property (IP) – encompasses the legally recognized exclusive rights to creations of the human mind. Under IP law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and word marks, symbols, and designs. These rights are intended to encourage the creation of a wide variety of intellectual goods, by giving legal protection to the creators’ interests while balancing public access to use such IP:[1]
- Patents protect inventions, granting the inventor exclusive rights to use, manufacture, sell, or distribute the invention for a certain period, usually 20 years from the filing date of the patent application,[2]
- Copyrights are aimed at protection of literary and artistic works such as books, music, and movies. Copyrights give the creator the exclusive right to use their work and to determine who else may use it,[3]
- Trademarks protect symbols, names, and slogans and other distinguishable forms of visual and/or audial presentation used to identify goods or services. This helps to distinguish the goods or services of one enterprise from those of others,[4]
- Trade Secrets consist of formulas, practices, processes, designs, instruments, patterns, or compilations of information that are not generally known or reasonably ascertainable, by which a business entity can obtain an economic advantage over competitors.[5]
IP laws aim to foster an environment that promotes creativity and innovation by ensuring that creators can gain recognition and financial benefit from what they invent or create. These laws attempt to balance the rights of creators to incentivize them to produce more works and the public’s access to those works. The core challenge of IP law is presented as balancing the incentives for creators against the need for public access. This balance is critical to fostering both innovation and cultural enrichment.[6]
IP laws in esports
The components of esports are largely similar to those found in traditional sports: players performing in teams along with coaching staff, fans, sponsors, competition organizers and broadcasters. The most significant difference is the importance of intellectual property in esports, especially IP connected with video games that are the essence of electronic sports. In traditional sports, the exploitation of intangible goods is limited to licensing content protected by intellectual property rights by specific leagues or competition organizers. In esports, each video game publisher has exclusivity in the field of IP right, including their exploitation in tournaments.
These entities can oversee the use of these rights, thereby ensuring a significant level of control. Due to the lack of top-down union regulations within esports that would have created any esports governing body, the tournament exploitation of games is regulated solely at the license level and appropriate agreements. In the history of esports, disputes have arisen, such as the one involving the SpectateFaker channel available on Twitch, where gameplay involving player Lee ‘Faker’ Sang-hyeok was published. This player was concurrently under contract with the Abuzu platform, which had acquired exclusive rights to broadcast his games. Abuzu deemed that the Twitch channel violated their rights and filed a request for its removal under the Digital Millennium Copyright Act (DMCA) procedures.[7] Twitch voluntarily complied with Abuzu’s demands to remove the exclusive content.[8]
In another case, Blizzard Entertainment became involved in a dispute with Korean broadcasters over the unauthorized broadcast of the game StarCraft[9] and with the Korea e-Sports Association (KeSPA), with whom the aforementioned game owner failed to agree on the scope of the StarCraft game tournament licensing.[10]
The above shows that the publisher can independently decide to limit the exploitation of their game in any field of exploitation, particularly in esports competitions. This provides a guarantee or even an obligation to involve the game publisher in every aspect of the development of the esports ecosystem associated with their game.
[1] WIPO, ‘What is Intellectual Property’ <https://www.wipo.int/about-ip/en/>, Cornell Law School, Legal Information Institute, ‘Intellectual Property’ <https://www.law.cornell.edu/wex/intellectual_property> accessed 28.04.2024.
[2] Ibid
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] W. J. Gordon, “Intellectual Property,” Boston University School of Law Working Paper Series, Law and Economics Working Paper No. 03-10, Chapter 28 of The Oxford Handbook of Legal Studies, Oxford University Press, edited by P. Can and M. Tushnet, October 2003, pp. 619.
[7] US Digital Millennium Copyright Act <https://digital.gov/resources/digital-millennium-copyright-act/> accessed: 28.04.2024.
[8] M. Ferguson, ‘What we learned from SpectateFaker’ <https://dotesports.com/league-of-legends/news/spectate-faker-riot-games-replays-lessons-1615> accessed: 28.04.2024.
[9] K. Tong-hyung, ‘Blizzard vows to take MBC to court’ (The Korea Times, 2.12.2010) <https://www.koreatimes.co.kr/www/news/tech/2010/12/133_77381.html> accessed: 28.04.2024.
[10] R. P. Flaggert, C. Mohammadi, ‘Copyright in esports: a top-heavy power structure, but is it legally sound?’ (DLA Piper, 2018) <https://www.dlapiper.com/en/ireland/insights/publications/2018/09/ipt-news-q3-2018/copyright-in-esports/ >accessed: 28.04.2024.
