The COVID-19 pandemic has had a large effect on our entertainment consumption. Some entertainment industries have taken significant hits, while others have been more fortunate in their rise. Videogame streaming is one such industry on the rise. During the pandemic, the global viewership of popular streaming platforms Twitch and YouTube Gaming increased by 10% and 15%, respectively. This increase in viewership appears to be directly correlated with the local severity of the pandemic. For instance, when Italy was experiencing the worst outbreak in Europe, the hours of live gaming content streamed in that country increased by an estimated 66%.
It is clear that the business of videogame streaming is increasing. And like other big businesses, videogame streaming is subject to complex legal issues. Because videogame streaming is a relatively nascent industry, many of its legal issues have yet to be decided in a court of law.
We have previously written a blog on a contractual dispute involving videogame streaming. This blog will focus on copyright issues. Videogames are protected in Canada by copyright both as audio visual works and as literary works in regards to their underlying code. Much of videogame streamers’ content consists of the audio and visuals of the videogames they are streaming, so streamers and copyright owners alike should be aware of the potential copyright issues.
Is videogame streaming covered by “fair use”/“fair dealing”?
In the US and Canada, there are limited exceptions to copyright law called “fair use” and “fair dealing”, respectively. These exceptions allow users to reproduce copyrighted material for specific purposes. There is some disagreement as to whether videogame streaming qualifies as fair use or fair dealing under copyright law, and there are arguments that support either viewpoint. However, there have been no judicial decisions in either the US or Canada that have addressed this issue. Consequently, it is not clear whether videogame streaming qualifies as fair use or fair dealing.
The power ultimately rests with copyright owners.
As a practical matter, it is the copyright owners, the publishers and/or developers of videogames, that ultimately get to decide whether streamers can stream their games. In the US, the Digital Millennium Copyright Act brought in an online copyright enforcement system referred to as Notice and Take Down. This system allows “online service providers”, such as online streaming platforms, to avoid liability for copyright infringement by their users so long as the service providers take down allegedly infringing material upon notice from copyright owners.
The Notice and Take Down system allows for users to respond to allegations of copyright infringement and have their content reposted within 14 days if the copyright owners do not take them to court. However, in practice users will often decide to not engage with this process because of the work involved. Thus, game companies can often exercise at least some control over who can stream their videogames.
Streamers must be aware of music copyright.
While copyright enforcement for videogames is discretionary, the videogame streaming platforms are much more uniform concerning their enforcement of music copyrights. All of the major platforms actively monitor ongoing streams for use of copyrighted audio. When they find copyrighted audio they will either automatically mute or halt the streams. Videogame streamers should be aware of this and should be conscious of whether the games they are streaming contain copyrighted music.
- Videogame streaming is a growing industry which has been growing even faster during the COVID-19 pandemic.
- Streamers and copyright owners should be aware of the copyright issues with streaming.
- Streaming may qualify as fair use or fair dealing in some circumstances, but this has never been tested in court.
- Copyright owners may use the Notice and Take Down system to prevent streamers from streaming their videogames.
- Streamers need to be mindful of the implications of using copyrighted music in their streams.