“Livestreaming is to esports as practice is to hockey.”

. . . Not exactly. There’s a little more to it.

“Livestreaming is to esports as a televised practice is to hockey.” Closer. But not quite.

“Livestreaming is to esports as a televised practice is to hockey, if the hockey player is mic’d up, the team plays other teams, and fans can interact with the player sporadically.” There we go. Sort of.

Livestreaming consists of a gamer playing a video game, often while providing commentary, and broadcasting that gameplay to the public through a streaming platform. Twitch is one of the most popular platforms.

Livestreaming is integrally woven into the fabric of esports. It’s where up-and-coming gamers first hone their skills and ultimately get noticed by leagues and teams. It’s where established professionals perfect their strategy for an upcoming tournament or season. It is often where tournaments are accessed by millions of esports fans.

Embedded in a livestream is the transmission of a copyrighted work (the video game). Naturally, this gives rises to a host of copyright issues. As esports continue to evolve and actors in the industry attempt to capitalize on its exponential growth, streamers should be aware of the potential legal repercussions relating to copyright and what type of licenses, if any, to obtain when streaming.

How Does Copyright Relate to Livestreaming?

Generally speaking, in Canada, video games are protected by copyright. This copyright is typically owned by the video game publisher/developer. There are many nuances to how copyright applies to video games, including what parts of the game are copyrighted (e.g., the code behind the game, the graphics, the music, etc.), and who owns the copyright in those parts, but that discussion is better left for a different post. Suffice it to say that video games are copyrightable and generally owned by a video game company.

As a streamer plays a video game, the game is broadcast to the public. Under Canada’s Copyright Act, RSC, 1985, c C-42, this constitutes a “public performance” of a copyrighted work, which is the exclusive right of the owner.[1] In the absence of permission from the owner, which is usually in the form of a license, the streamer is infringing the copyright of the video game developer/publisher.

Do Livestreamers Need a License to Stream?

Despite the potential for infringement, streamers may choose not to seek out a license for a number of reasons.

The best-case scenario: a developer/publisher pays the streamer to play their game. This is an increasingly common and effective method of advertising seen in the gaming industry. Such an arrangement, in theory, would cover any licensing issues. Not all streamers are Ninja or Dr Disrespect, however, and cannot reap the benefits of a world-famous persona.

Some developers/publishers provide a non-commercial license that allows streamers to use their content, thereby precluding streamers from infringing copyright in the video game. Blizzard Entertainment, for instance, allows the use of its content in livestreams provided the streaming is “limited to non-commercial purposes.” This means that a livestreamer cannot stream a Blizzard game if payment is required for viewing. Whether or not this license covers streamers that promote products in-game for money is unclear.

A gamer may also choose to stream without a license if they feel any action by the copyright owner is unlikely. Video game developers/publishers may elect not to enforce their copyright in their games if the widespread exposure is worth the infringement of their rights. Promotion of their game through online streamers and viewership may outweigh whatever is to be gained by licensing and/or enforcement.

It is also possible that the platform has already negotiated a license that extends to a streamer, similar to how Twitch provides users with a library of licensed music to users free of charge. Twitch has not adopted this practice to video games, however, and explicitly recommends that streamers check the applicable rules on licensing prior to streaming.

In any event, a responsible streamer should undertake to review the fine print of the video game and streaming platform to determine whether they might be infringing copyright. After review, the streamer can make an informed decision whether or not to seek out a license, if necessary, or risk the repercussions of copyright infringement.

[1] Arguably, this is also a communication of the copyrighted work to the public by telecommunication, as contemplated by s. 3(1)(f) of the Copyright Act.

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