Streaming and Copyright

Streaming platforms, such as Twitch or YouTube, are quickly becoming more and more popular, gradually approaching classic television channels in terms of views.

As the popularity of such platforms increases, more and more people are trying to make a name for themselves and make a profit by creating content for such platforms.

Unfortunately, as it often happens with new technologies, the current regulatory framework does not adequately reflect the existing realities, leaving both streaming services and individual content creators in the “gray” zone of law in the context of intellectual property law.

In this article we will discuss:

Why copyright holders may be worried about streaming services.
Rights that may be affected by such streaming services.
Ways to protect your rights.

As discussed in more detail in the next section, there is a point of view that most forms of streaming violate the exclusive rights to the result of intellectual activity that belong to the copyright holders of the original content, i.e., mainly to games developers.

Nevertheless, many copyright holders of the initial content welcome such "violations of rights", as streamers actually advertise the game with their activity and create a community around it, stimulating sales of both copies of the game and in-game purchases.

However, the copyright owner may experience certain problems with the free, unhindered use of his copyrighted material. For example, a copyright owner may want to prevent the commercial exploitation of his intellectual property by a third party as part of an e-sports tournament or event. Thus, the developer can either allow individuals to broadcast the game through Twitch or YouTube or prohibit any third party from using his work in order to profit in various ways, including, for example, in the form of charging an entrance fee for an e-sports tournament, earning advertising revenue from such events.

In addition, a separate issue is that through streaming, content creators can create what is considered to be a “joint work” or, moreover, their own work protected by copyright. As an analogy, consider a music artist performing a specific song these days, for example, “Bohemian Rhapsody”. Although Roger Taylor, Brian May, John Deacon, and the Freddie Mercury family own the copyright of the original composition, the artist undoubtedly has separate copyright for the performance and recording (and possibly also for the arrangement).

However, while there is a compulsory licensing regime in the music industry that clearly delineates ownership in such situations, and what's more, there are organizations such as the American Society of Composers, Authors, and Publishers (ASCAP) created to monitor and collect royalties, concerning video games, there are as yet no established mechanisms for resolving such scenarios. Thus, the developer risks partially losing control of his work.

Finally, in addition to purely legal issues, copyright owners may have practical reasons to wish to prevent the streamer from broadcasting their game, for example, to prevent spoilers, or to avoid associating the game with any particular streamer that might use strong language or support ideas with which the copyright owner does not agree. For example, a streamer can broadcast Wolfenstein II: The New Colossus on his channel and support National Socialist ideas, which is unacceptable to MachineGames developer and publisher Bethesda Softworks.

Rights affected by streaming

Intellectual property law contains a set of rights that the copyright holder can use concerning the very object of such a work. Along with the well-known right to make copies, the copyright holder also has the exclusive right to publicly display his work and create derivative works on its basis. Both of these rights may be violated depending on the content published on streaming platforms.

The right to publicly display intellectual property

The right to publicly demonstrate a work gives copyright holders the exclusive right to “perform” their works in front of an audience. Screening a movie, staging a play or performing a song at a concert are all examples of public performance of copyrighted works. Considering the exclusively public nature of streaming services (again, competing with traditional television in terms of daily viewing), it is easy to see how streaming a game can be nothing more than a public performance of copyrighted works.

Derivative Rights

While a “derivative work” is most often considered an adaptation in a different form (as an example, an adaptation of a book) or a translation, the legislative definition of a “derivative work” provides that any work created by processing, adaptation, arranging, staging, or other similar means processing of the original object will be considered derivative and, accordingly, the rights to such a work generally will belong to the person who carried out such processing, but only in the part of the performed processing.

Based on this definition, it is likely that most content on streaming platforms is a derivative work. Even in the case when a streamer adds his own content (for example, thoughts about the game, strategy tips, general considerations, etc.), the original work constitutes the prevailing part of the content offered for viewing.

Responsibility

Not only streamers themselves risk being held accountable for copyright infringement - streaming services can also be responsible for assisting in copyright infringement, making a profit from the illegal use of the intellectual property and stimulating illegal behavior. Moreover, it will be more profitable for the copyright owner to hold the platform itself accountable, rather than a streamer, in order to recover losses from a wealthier violator.

Protection methods

Given the possibility of filing a copyright claim, the potential plaintiff or defendant should be aware of the protection strategy that the defendant may follow.

The most commonly used method of protection is the doctrine of "free (fair) use."

The Civil Code of the European Union establishes a clear list of what is considered free use:

Citing the work for scientific, polemical, critical, informational, educational purposes, with the obligatory indication of the source.
The use of works as illustrations in publications, radio and television programs, sound and video recordings of an educational nature in an amount justified by the intended purpose.
Reproduction in a printed publication and subsequent distribution of copies, broadcasting or by cable, making available the articles lawfully published in periodicals to the public.
Reproduction in a periodical and subsequent distribution of copies, broadcasting or by cable, making publicly available publicly delivered political speeches, appeals, reports and similar works in an amount justified by the informational purpose.
The public performance of legally published works by presenting them in live performance, carried out without the goal of making a profit.
Recording on electronic media, including recording on computers.

The Free Use Doctrine in the United States of America gives us different criteria for determining fair use. Thus, Article 107 of the Copyright Act expressly provides that the protection of exclusive copyrights is limited to “fair use”. Fair use analysis considers five factors:

purpose of use;
the nature of use;
the nature of the copyrighted work;
the number of copyright objects used;
potential impact on the market.

Analyzing both European and American law, it is not yet clear whether an ordinary stream will be considered as free (fair) use.

For example, many streams are clearly commercial in nature, advertisements are shown on such streams, viewers make donations, including some streamers who ask for a donate to change the musical accompaniment of the stream, which may also violate the musician’s copyright.

Due to the lack of direct regulation regarding the use of fair use factors for streaming services, it is difficult to predict the result of protection using the principle of free (fair) use.

In addition to free (fair) use, the streamer may rely on other, less well-known copyright protections.

For example, an estoppel tool (in particular, Equitable Estoppel) provides that if the plaintiff is aware of the defendant’s illegal use of copyright objects, but, nevertheless, the plaintiff allows the defendant to continue to use such objects, then the plaintiff cannot subsequently “change his mind” and try to challenge such illegal use.

Thus, the streamer may argue that, since game developers are well aware of streaming services and the availability of broadcasts with the games they have developed, and streamers rely on the absence of developer actions when conducting their activities on a streaming service, developers should not be allowed to selectively apply copyright protection tools in a particular case.

Finally, a streamer can use the doctrine of abuse of rights (chicane) to his advantage if he can prove that the copyright holder is abusing his right and his ultimate goal is not to protect his copyright but to create any other problems for the streamer or streaming service. This is possible if, for example, Bethesda Softworks acquires a streaming service, and a competitor, say Electronic Arts, files a number of lawsuits in order to prevent or delay the closing of the deal. Or the copyright holder did not like the comments or the streamer’s reaction about the product and because of this, and not for copyright protection, such a copyright holder makes the person liable.

What to do?

Many of the copyright issues listed above can be avoided to a large extent by well-written licensing agreements with the end user. With the help of license agreements, it is possible to explicitly provide for the possibility of creating joint works, including regulating the ownership of derivative works, clearly indicating which party owns the copyright, and, if necessary, granting the developer an irrevocable license to use any intellectual property created by the players themselves or streamers.

Moreover, game developers should be aware of the need to prove that the software belongs directly to the developer, i.e., to ensure the deposit of the software and, in some jurisdictions, for example in the USA, obtain state registration.