TY - JOUR
AU - Thomas, Amy
AB - The author This article Amy Thomas is a Research and Teaching Associate at the University of Glasgow School of Law / CREATe Centre. eSports is a nascent industry of considerable commercial value that is fundamentally underlain with creative works—video games. Despite this, no legal scrutiny has been given to the copyright status of eSports in the UK context. By using copyright as an analytical tool, this article assesses the conceptual boundaries of eSports to better understand the legal status of this new industry to help inform future regulatory efforts. In analyzing the subject-matter positions of the three key eSports actors—the game rightsholder, the tournament organizers and the professional players—this article concludes that the copyrightable status of a video game results in the control of all further downstream usage of that game. This is in stark contrast to the copyright treatment of its most frequently cited bedfellow—traditional sports. This article proposes that the interpretation of existing broader principles of copyright may achieve a better balance of interests between eSports actors. In doing so, comparative reference is made to South Korea as the genesis of the eSports industry. 1. Introduction As a hybrid between video games and traditional sports, the idea of eSports (‘electronic sports’ or competitive video gaming) invokes an immediate challenge to our pre-conceptions of what these activities entail and the boundaries between them. Conflating the two often prompts visceral reactions,1 and indeed, it has been said that ‘if you can play it whilst smoking or drinking it isn’t a sport’.2 Yet, and as the very existence of eSports evidences, this distinction is becoming less relevant in the digital era. Instead, this article posits that the more important distinction between the two is that eSports, quite unlike any other sporting or entertainment competitions, is an industry built around a commercially produced and copyrightable video game—it is a sport that is owned. Increasing awareness of this fact has led eSports to an important juncture. The history of eSports is one that has been advanced by third parties (eg the Electronic Sports League) rather than the rightholders themselves: third party organizers facilitate competitions and tournaments, making eSports more available to the public and more appealing to watch through the incorporation of their own, original content; professional players contribute their skill and creativity in mastering a game to make eSports feasible in the first instance. However, with the growth of this market, so too has rightholders’ control, with corresponding restrictions on third parties’ abilities to produce eSports content. In this new context, copyright ownership has been leveraged as a governance function, which may impact not only the economic livelihoods of other eSports actors,3 but also the broader cultural politics of eSports. As an illustrative example, whereas banned players of traditional sports may continue practising their sport in private, or in other countries or tournaments, ownership of an entire eSport can lead to a ban on participation from that eSport entirely (akin to banning a world-renowned football player from playing football even on the street). In eSports, this may well be an elimination from the means of one’s own livelihood, or a daily practice perfected over several years. This is possible even if the allegations supporting the ban are dubious and can be enacted without player recourse to any independent appeals body. Importantly, this is not a hypothetical scenario.4 The justifications for such drastic actions are reliant upon the gamemaker’s authority as a copyright holder, who is entitled by law to deny access to their works (or in this case eSport) by, eg technical means.5 At this important juncture, where such actions are enabled by merit of copyright ownership, we must ask to what degree can copyright be used to justify ongoing control of all downstream usage of a game in an eSports context? Does (or should) the copyright framework reflect the contributions made, and value generated, by third party eSports actors and protect them accordingly? To date, legal attention on eSports has mainly focussed on issues such as gambling, match-fixing, doping and employment regulations.6 Comparatively, copyright aspects (and indeed intellectual property aspects more generally) have received relatively little scrutiny despite eSports being fundamentally underlain and facilitated by a creative work—a video game. The most comprehensive work to date comes from Burk, who provides an overview of the copyright status of eSports in the US.7 Rothman’s response, in turn, highlights how eSports can be used as a prism to understand technological change.8 In parallel to this, more recently the junction between eSports, intellectual property and competition law has drawn attention from scholars such as Arin9 and Miroff,10 and broadly analogous economic analysis by Karhulati.11 Yet, despite being the sixth largest market globally for games,12 there has been no legal scrutiny on the copyright aspects of eSports in the UK. Instead, the closest proxy for interest in the copyright aspects of eSports comes from a 2017 debate in the EU Parliament, where copyright was identified as a crucial matter of conceptual definition: in the opinion of the participants, if by merit of being a rightholder one can determine who, when and under what conditions a competition can be organized around their work, then this makes eSports incomparable to any other sporting industry.13 That eSports’ key differentiation from traditional sports is by virtue of having an identifiable rightholder, this invites the opportunity to use copyright as an analytical tool to evaluate its conceptual boundaries. This requires an analysis of the subsistence and subject-matter of copyright in eSports to better understand how copyright engages with this new industry. In doing so, this illustrates how copyright ownership of a game impacts its subsequent downstream usage by other eSports actors, providing a better theoretical grounding for how eSports should be understood conceptually to facilitate future research and policy discussions. In short, we should view eSports’ otherness not by virtue of being an ‘electronic’ or virtual sport, but rather by the fact that it is a sport which is owned. This article approaches this question from a UK perspective, with due consideration to EU law where appropriate. Firstly, the background and context for eSports is outlined as a field of study. Thereafter, the subject-matter and authorship aspects of eSports are examined through the prism of the main eSports actors: the game’s rightholder, the organizers and the professional players. This section also gives consideration as to the sporting status of eSports as a relevant factor for subject-matter concerns. Finally, the article analyses how we may utilize more general copyright principles in order to mitigate the potential impact of deep, downstream control with comparative reference to the South Korean approach. 2. Esports: background and context eSports are not necessarily a new phenomenon. The public spectacle of video games has waxed and waned since its inception: from the public element of arcade gaming in the 1980s, through private home gaming in the nineties and noughties, and now as enabled through global interconnectivity the capacity for worldwide public contest. Certainly, the interconnectivity of Web 2.0 and improved high-speed broadband connections have given new capabilities for industry players that have resulted in the most recent resurgence of eSports. There are many competing definitions of eSports, but broadly it is defined as the competitive playing of video games. These games do not need to replicate traditional sports in themselves, like tennis or football,14 but instead are more commonly first-person shooters (eg Call of Duty), massively multiplayer online games (eg World of Warcraft), multiplayer online battle arenas (eg League of Legends) and fighting games (eg Super Smash Bros.). Professional players, who specialize in particular video games, train with the same level of intensity as a traditional sports athlete,15 and more recently have even resulted in eSports related injuries, such as repetitive strain injury.16 At an organizational level, players are often organized in teams with accompanying coaches, competing in leagues and tournaments for monetary prizes.17 Traditionally, these tournaments have been organized by third-parties with no direct affiliation to the game, but more recently there has been vertical integration to create ‘in-house’ competitions, such as with Riot Games’ League of Legends. These events can be held either entirely online, or face-to-face in stadiums (some purpose-built), with broadcasts made readily available on platforms such as Twitch, YouTube Gaming or Facebook Gaming. Outside of tournaments and leagues, eSports players also regularly broadcast individual streams of ‘training videos’, providing commentary on their thought processes or reflections and engaging with fans. These streams, alongside lucrative sponsorships, provide an additional source of income through advertising revenue, subscriptions and fan donations.18 Top tier players may also belong to organizations or teams who pay them a regular salary, usually supplemented with additional prize and sponsorship money. As a result, and while often not reaching the astronomical heights of income received by top tier traditional sports athletes, it is still possible to make a highly lucrative living as an eSports player.19 In terms of popularity, the industry continues to grow from its genesis as a niche, predominantly South Korean practice to a thriving global phenomenon with almost 40 per cent year-on-year growth.20 Not only does this bring with it economic benefits, but eSports may also facilitate important societal benefits: its international character means there is little geographical dependence for participation as players regularly compete with each other online; video games may arguably be more accessible for some people with disabilities than traditional sports, and; there is no suggestion that eSports does not bring with it the same development of social and teamwork skills as traditional sports. Indeed, as early as 2014 it seemed that eSports had surpassed some traditional sports in popularity, with reports claiming that the 2014 championship final of League of Legends had more viewers than the National Basketball Association (NBA) finals.21 The COVID-19 pandemic has also, unarguably, accelerated the growth and cultural importance of eSports.22 Following the postponement of many traditional sports, eSports have provided a fitting substitution both for traditional sports athletes to give them platforms to perform in their own virtual sport23 and for new and existing fans to follow ongoing eSports activities which have continued, relatively undisturbed, through the pandemic. To give a global appreciation of the industry, many Asian countries have demonstrated an enthusiastic approach to embracing eSports. Particularly in South Korea, which is widely recognized as being both the genesis and mecca of eSports, a governmental eSports regulatory body, the Korean eSports Association (KeSPA) (established in 2000), is a member of the South Korean Olympic Committee. The approach of EU Member States has been more piecemeal and conservative. Germany24 and Italy25 have recognized eSports as ‘official’ sports, and France has created explicit legislative recognition of eSports by providing labour regulations for players, conditions for the involvement of minors, and legalizing ‘physical presence’ eSports competitions.26 Other European countries, such as the UK, maintain that eSports are essentially games.27 Importantly, no specific international regulatory body exists for eSports in the same way that, eg FIFA regulates international football, despite the efforts made by multiple oversight groups, such as the eSports Integrity Coalition (an antifraud group) or the International eSports Federation (campaigning for recognition of eSports as a legitimate sport). The failure of these groups to regulate the industry as a whole can be attributed to multiple factors. First, as most are independent, non-governmental groups with no enforcement mechanisms, they struggle to find legitimacy within the eSports community. Even the World eSports Association, party to the eight biggest eSports brands, cannot enforce their own rules and regulations. Secondly, as eSports are in fact a cluster of different sports (much like tennis, football and basketball are considered different sports) with multiple, different stakeholders, this makes finding consensus on regulation difficult. Finally, and as this article explores in greater detail, eSports games are technically owned by a sole rightholder, who may be unwilling to submit themselves to the rules imposed by external regulatory bodies, presenting a particularly difficult regulatory hurdle to overcome. In terms of national efforts, KeSPA, as a quasi-official body, is probably the best established and well-financed, though still has struggled to enforce actions against rightholders even with these grants of authority (discussed in more detail in Section 4.1). The UK equivalent, the British eSports Association, was established in 2016 by the UK government to improve awareness of the industry at grassroots level but has no governing function. Instead, eSports is largely self-regulated, whether by rightholders setting their own rules and regulations for specific competitions, or by licensing their rights to third-party organizers, who may benefit from varying degrees of autonomy to determine their own rules. This self-regulation has led to a high degree of variance between the levels of moderation and enforcement of game rules depending on the approach of the particular rightholder, with some being more permissive, others more restrictive.28 The result is a (relatively) new industry, with complex structures which, while rapidly increasing in terms of growth and popularity, is subject to little external legal regulation.29 Instead, the UK position maintains that eSports are, reductively, ‘just a game’, despite the elaborate competitive structures built around it. This invites a new and important question—who regulates this game, and under what justifications? As a creative work, copyright has a high stake in answering this question. And while there is a growing consensus that video games should be protected under copyright, there are many questions about how to incorporate this into the UK framework. 3. Subsistence of copyright in eSports eSports are, at their core, about contest facilitated via a video game. Yet, eSports cannot be reduced to a video game in a vacuum. Instead, one of the distinguishing features of eSports are the competitive structures which have been built around the game: in particular, note the professional players who contribute their skill and creativity, and the third-party organizers of tournaments and leagues responsible for creating a public spectacle. Neither of these aspects are subject to copyright as such, yet they necessarily return to the problem (and regulation of) a copyrighted game. When considering subject-matter and authorship in the context of eSports, this is a complex and multi-layered issue that is best described through the prism of three key eSports actors: the game’s publisher/developer (the rightholder), the (tournament) organizer and the professional player. Notably, this initial analysis does not give consideration to eSports teams as an independent eSports actor, and instead treats teams as being largely subsumed by the same considerations faced by the professional player (as a collective); as with all eSports actors, questions of ownership of creative content necessarily return to the same question of rightholder downstream control over specific subject-matter.30 As a final, but crucial, consideration, we must also question to what degree eSports may be categorized as a traditional sport, its most frequently cited bedfellow, in order for us to better understand the conceptual boundaries of this new phenomenon. 3.1 The game rightholder31 As mentioned above, video games are the focal point and foundational aspect of any eSport. As such, the subject-matter claimed by the game rightholder must be interrogated. Games, like sports, are essentially systems of rules, which are traditionally excluded from the ambit of copyright protection. In principle, there is no reason why this doctrine should not apply to all game forms, including board games and parlour games. Indeed, despite their increased complexity and artistry, video games remain interactive games constrained by systems and rules as any other. However, over time, video games have come to be accepted as protectable subject-matter both in themselves, and through their constituent components. Broadly, there are two approaches32 to video game copyright: the first is to treat games as solely computer programmes; the second looks at the multiple, constituent and separately protectable works, such as the graphic displays, music and dialogue which comprise a game. However, the most recent precedent from the Court of Justice of the European Union (CJEU) in Nintendo v PC Box33 indicates a marrying of these two approaches: [V]ideogames constitute complex matter comprising not only a computer program but also graphic and sound elements, which, although encrypted in computer language, have a unique creative value, which cannot be reduced to that encryption.34 A video game’s ‘unique creative value’ therefore cannot be reduced to simply a computer programme, but also includes ‘audiovisual’ components. The court confirmed that these components can be ‘protected, together with the entire work, by copyright in the context of the system established by [the Information Society Directive]’.35 Translating this into UK parlance, under the Copyright Designs and Patents Act 1988 (CDPA), the underlying code of video games is protectable as a literary work (ie computer programme) in the first instance. This code normally incorporates the rules and systems of the game which allow the player to progress, determine permitted actions and penalties (ie ‘gameplay’36). Audiovisual components may be roughly translated as some graphic works (eg icons), film (eg cutscenes), sound recordings (eg soundtrack) and increasingly other literary works (eg dialogue, in-game lore). Provided these meet the necessary thresholds of originality, each aspect may be protected separately. Importantly, the addition of these elements does not bring the underlying gameplay rules within the ambit of copyright protection (and indeed there is literature to this effect on game cloning37), but the effect becomes that anything which displays these rules, whether visually or audibly, tends to default to copyright protection. In short, the audiovisual component of gaming creates a particularly strong protection of game content and justification for its ongoing control. However, one element of video game subject-matter remains unclear: the ‘running’ of a game, where the player explores and interacts with the game environment in an unscripted, unique manner. In these situations, the running of the game represents only a small proportion of all possible permutations, and in eSports is usually the focal aspect of any play (ie the unique and unpredictable movements of the players in action). There are two possibilities for categorizing ‘running’ of a game under the CDPA: as a film, or a graphic work. To be categorized as a film, the running of a game would have to satisfy the definition given in section 5B CDPA as being a ‘recording on any medium from which a moving image may by any means be produced’.38 The recording requirement is crucial and presents an immediate challenge to this categorization. Strictly speaking, the running of a game does not constitute a recording, even if in theory it could be retrieved from a computer’s memory. Instead, in order to qualify as a film, the rightholder would presumably need to record each possibility of an individual’s run elsewhere; in effect, the rightholder would have to have made a near-identical video of each possible playthrough in order for the ‘running’ of the game, in any possible manner, to be sufficiently recorded and enforceable against any instance of future gameplay. This seems highly unlikely, and more clearly applies to game cutscenes (films in the true sense with no variability or interactivity) or, e.g interactive movies, which have very limited permutations.39 Instead, it becomes more likely that the capture of game footage only becomes a recording when a third-party captures a sequence using, eg video capture technology, and only becomes infringed when this recording is copied, rather than by independently creating the same display through the same permutations. The possibility for the ‘running’ of a game to be construed as a graphic work is more complicated. In Nova v Mazooma,40 the Court of Appeal of England and Wales held that each individual frame of a video game may be protected as a graphic work.41 However, in the context of the ‘running’ of a game, showing the moving image of a player exploring their environment, this clearly does not have the qualities of a graphic work, being defined in this case as ‘static, non-moving’.42 Indeed, the court confirmed that a compilation of static, frame-by-frame sequences of ‘a series of still images which provides the illusion of movement’43 is not deserving of an additional, new copyright over the particular arrangement of that series, as was sought in the case. This more aptly falls within the remit of the film category which, as discussed above, may also be problematic in the context of games. Such a conclusion may be satisfactory per the facts of the case, which was intended to exclude specific ‘look and feel’ animation sequences.44 However, a strict reading of this judgment would suggest that there exists no copyright in a sequence of individual frames, only the static graphic work, and as such, the ‘running’ of a game would fall outside of a protectable category. Otherwise, the more conservative suggestion is that for every new frame which is generated on screen there is endlessly new copyright in graphic works, which would appear to apply even after the programmer’s (or more likely the company director’s) death; to give some context to this massive calculation, there are approximately 60 frames-per-second in the average PC game. Such a reading would suggest very strong copyright protection indeed, with correspondingly strong restrictions on any subsequent downstream usage of the game. Much of this discussion returns to the difficulty of accommodating interactive, moving media within copyright. This may be reflective of the limitations of a closed-list system in the UK, and absence of a more general audiovisual category, which often results in unintuitive categorizations of new multimedia.45 Certainly, this approach seems to go against the EU suggestion of a stand-alone video games category, which would specifically caution against dissecting games into components that fit within other categories. Nonetheless, the result under the CDPA is that video games occupy a hybrid status in copyright as a complex, multimedia work. The upshot of this system is perhaps counterintuitive: in principle, the game itself is non-protectable, but all of its constituent elements are. In essence, these unprotectable rules and systems become bundled into protectable components, transforming it into several protectable works. As such, a video game rightholder is entitled to exercise their exclusive rights under copyright, and anyone seeking to undertake any of the activities reserved by these rights will in theory needs their permission to do so. In the eSports context, these are likely to be activities which make game content, including game footage, music etc., publicly available, whether through an in-person tournament or online streams. Displays of this audiovisual content to the public are likely to be reserved to the rightholder by the communication to the public right,46 presenting a significant barrier to any downstream uses which present this for public spectacle, as is the case with eSports. 3.2 The organizer A typical eSports tournament broadcast involves: game footage (comprising each of the elements detailed in subsection 3.1), film footage of players ‘in action’ or fans in the crowd, commentary, background music and trademarks. In most cases, the focal point of the tournament will be the game footage itself (similarly to, eg broadcasts of a football match), which may belong to a third-party publisher/developer. But many of the other aspects—the film footage of players or commentary—are likely to be original, separately protectable works of the organizer.47 These aspects contribute significantly to the broader appeal of eSports as a public spectacle by packaging the playing of a game in a more attractive and entertaining manner. Nonetheless, due to the inclusion of the game footage, most eSports tournaments will be premised on obtaining permission from the game publisher/developer, regardless of the accompanying combination of original works.48 Even where these permissions are secured, tournament organizers may struggle to regulate or sanction the unauthorized usage of their tournament content where that content is primarily made up of game footage. For example, in 2018, third-party organizer Electronic Sports League (ESL), agreed an exclusive broadcasting agreement with Facebook for their upcoming tournament, which included Valve’s Dota 2.49 However, many Dota 2 personalities who were not affiliated with ESL chose to stream the events on their own personal Twitch channels, both due to technical issues with using Facebook as a platform and the larger audiences available through Twitch. As a result, ESL issued notice-and-takedown requests to these personalities compelling the defector streamers to remove what they perceived to be ESL exclusive content. These requests ultimately caused upset in the gaming community and calls for Valve to rectify what was perceived as an issue in conflict with both ESL’s legal standing to issue takedown notices, as well as a violation of Valve’s (the rightholder’s) own DotaTV guidelines. Per these guidelines, anyone is free to broadcast any Dota game for their own audience using the in-game spectator tools. This is caveated on the conditions that the stream cannot be commercial, cannot use any official broadcast content belonging to the tournament organizer (such as commentary or camerawork), and that it does not compete with the original stream. On the first point, Valve confirmed that they were the only party entitled to issue takedown notices in respect of Dota 2 content, but noted that this does not extend to the use of the tournament organizers’ content (eg the original components of commentary, video footage etc.). On the second point, Valve re-iterated that it is a matter of their own discretion, not the tournament organizer’s, as to whether their community rules had been violated. In particular, a statement by Valve highlighted that the flexible interpretation of these rules was to enable up and coming casting figures to stream tournaments on their own channels, while prohibiting commercial competition from other parties looking to compete with the primary stream. In terms of protectable subject-matter, cases like the above illustrate that eSports actors differentiate between game content that, while licensed to the tournament organizer still remains ultimately controlled by game rightholder, and the original broadcasting content of the organizer. However, this case is also illustrative of the risk assumed by platforms and other potential stakeholders, such as sponsors, who acquire rights that may be usurped at the discretion of the rightholder, creating significant uncertainty for all third party eSports actors. Essentially, despite efforts to integrate original content into a tournament stream, the crucial question remains: who owns the underlying content (ie the game)? In this regard, the organizer simply becomes another ‘user’, despite being structurally and organizationally distinct. This factor, combined with the increasing tendency for eSports tournaments to be vertically integrated within the rightholder’s business model (particularly Riot Games and Activision Blizzard), may lead to third-party organizers being crowded-out of eSports production, ultimately reducing the availability of eSports as a whole. 3.3 The professional player Conceptually, the professional player presents a challenge to many of our pre-ordained notions of usership. Most conceptions of the user, or user-generated content (UGC), are premised, explicitly or implicitly, on the idea of an amateur.50 In eSports, there is the difficult task of reconciling this idea of amateur with the professionalism and dedication shown by many players, some of whom depend on eSports for their livelihood. This livelihood will be derived, at least in part, from the player’s ability to claim and control their eSports performances, personal brand51 or image rights52 in order to exploit this for, eg sponsorships or other sources of revenue. While the latter two issues are outside the scope of this article, questions of performance rights for professional players have featured prominently from scholars approaching the eSports-copyright relationship from the US perspective.53 Essentially, the question becomes whether the player, in showing their creativity and skills in a unique playthrough of the game, is in fact performing either a literary or dramatic work. As this question is invited at the ‘ground level’ of eSports, being the fundamental player interaction with a game, this potentially has a limiting effect for claims to ongoing downstream control (ie if in fact a player, not the rightholder, can control or author their own performance). However, much like traditional sports, the interactive nature of games has not usually been persuasive enough to deny them copyright protection or grant any authorial interest to the player. In the UK context, the Nova case confirmed the same. First, on the question of whether it is possible to ‘perform’ a game, the court held that due to a lack of ‘unity’ a game could not be a dramatic work. The game in question, a virtual emulation of pool, was considered as ‘not a work of action which is intended to be or is capable of being performed before an audience. On the contrary, it is a game’.54 An initial interpretation of this leaves open the possibility that some games could be capable of being performed, if there is an element of ‘action’. However, the court’s further elaboration seems to suggest that any game cannot be performed: Although the game has a set of rules, the particular sequence of images displayed on the screen will depend in very large part on the manner in which it is played. That sequence of images will not be the same from one game to another, even if the game is played by the same individual. There is simply no sufficient unity within the game for it to be capable of performance.55 This seems to emphatically deny the possibility of any performance rights for the player in any circumstance where a game has significant variability. Yet, case law developments since Nova now suggest that ‘unity’ should be interpreted less in the sense of absolute uniformity, and more in the sense that there is a degree of consistency and recognizable form throughout.56 In a video game or eSports context, we might anticipate that consistency and recognizable form may be inferred by the fact that any permutations of possible actions take place within a defined game environment/space, regardless of how varied. However, and in any case, the court in Nova went on to doubly confirm that even if a game were capable of being performed, a literary work (the underlying component of the game as a computer programme) could not simultaneously be a dramatic work.57 Secondly, the court held that, per CDPA section 9(3), the sequence of computer-generated frames of a video game which are displayed on a screen are authored by the person who made the arrangements necessary to create the frame images (ie the game publisher or developer). They explicitly rejected the role of the player in authoring anything displayed on the screen as they ‘ … contributed no skill or labour of an artistic kind’,58 but rather the creator by coding/creating the audiovisual outputs (ie frames) to be displayed in the first instance: … the player is not, however, an author of any of the artistic works created in the successive frame images. His input is not artistic in nature and he has contributed no skill or labour of an artistic kind. Nor has he undertaken any of the arrangements necessary for the creation of the frame images. All he has done is to play the game.59 Under this reasoning, a video game player has very little agency to make any authorial contributions. The player only has agency when they are prompted to do so, and the outcome will always be pre-scripted by the game’s creator. Elements of video game interaction are treated as invariable, with fixed components and sequences, and a static range of inputs and outputs (despite, somehow, lacking sufficient ‘unity’ as detailed above). Elements of display in a game are also viewed as invariable, such as the camera angle and lighting. In contrast, in traditional sports, the arrangements necessary to set up the camera angle and lighting has generally been enough to give copyright protection to the person filming the event (the ‘Director’s choice’),60 but not in the case of video games—here, this always remains with the rightholder. The conclusion appears to be that the users’ inputs do not determine what happens in the video game, but rather the creator of the video game itself. Any user outputs are thus, automatically, an extension of the game creator’s work. Arguably, the doctrinal underpinnings of this conclusion are unsatisfactory; similarly, unsatisfactory are the results in the eSports context, where rightholders may still exert ongoing downstream control even over the display of the minute, random and unscripted movements of the player. A more optimistic reading points to the Nova facts as opening the door for a case-by-case analysis of player contributions to a game. There is a suggestion that if a player contributes ‘skill and labour of an artistic kind’ that they would be entitled to some authorial interest in their playthrough. In the eSports context, we might certainly anticipate that skill and labour on the player’s behalf are present: players will be the most skilful of their respective game (with research suggesting they can make up to 10 in-game moves per second61) and laborious to the extent that the physical exertion of pressing a button can be considered as such (as is the case with photography). However, the question of whether such a contribution can satisfy the, seemingly new, independent variable of ‘artistic’62 tends to return to the problem of how much artistry and creativity can be attached to an activity that takes place in the context of a larger system that is constrained by rules and limitations; such has been part of a longstanding debate in the traditional sports context, which is discussed below. 3.4 The ‘sport’ element There is little doubt that eSports have modelled themselves on traditional sports leagues by monetizing competitive play, inviting both a natural analogy and the same economic stakeholders. To what degree eSports may be considered analogous to a traditional sport is one of the more popular areas of debate within eSports research, with much debate on this relationship between sports philosophers.63 Elsewhere, sports lawyers have seemingly debunked the question of eSports’ sports status due to physicality requirements stipulated by the CJEU.64 This question has been relatively underexplored from the copyright perspective, despite this categorization having the potential to cause some conceptual boundary issues: if eSports are more like a traditional sport then they err towards being unprotectable; if they are a video game, they err towards being protectable instead. Per Boyden, games and sports share the same qualities of non-protectable systems in the sense that they both comprise ‘rules, space, players and goals’.65 Such unfixed works of rules and systems tend to fall outside the remit of copyright protection as any capacity for original artistic expression and creativity is necessarily limited by, and is an output of, the structure of rules and play. This limitation suggests that copyright should exclude systems where entertainment is supplied by users (or players) who follow procedures, methods, rules or systems, rather than the author supplying the entertainment as such. This, in principle, is true of and applies to both sports and games. Yet, the two industries have reached different conclusions when it comes to questions of a product’s overall protectability status under copyright. In the Premier League v QC Leisure case,66 the CJEU confirmed that traditional sports, in themselves, are not copyright subject-matter: … sporting events cannot be regarded as intellectual creations classifiable as works within the meaning of the Copyright Directive. That applies in particular to football matches, which are subject to rules of the game, leaving no room for creative freedom for the purposes of copyright. Accordingly, those events cannot be protected under copyright.67 This is due to the fact that any sports play or player tricks lack free and creative choices as they are constrained by a system of rules and methods. The fact that players can interact creatively with this system through tricks or complex sports plays has not been persuasive enough to give traditional sports copyright status; in short, player input into traditional sports represents skill, but not creativity. This decision has been criticized as being debatable.68 Clearly, such an interpretation is more readily applicable (as the court acknowledged) to competitive and adversarial sports, such as football, which necessarily rely on unscripted and unpredictable randomness as an essential component of their contest. However, we should anticipate that there may be some feasibility for pre-determined performances to be protected as dramatic works. For example, gymnastic performances executed per a script, provided it is recorded in a fixed medium, would almost certainly be considered as dramatic work akin to choreography. Regardless of the underlying copyright status of traditional sports, several other mechanisms are in place which converge to effectively replace the need for any such protection.69 For example, within this package is a valuable broadcasting right70 which, quite separately from typical requirements of originality (seemingly, for the most part, absent in sports as such), protect sports broadcasts in respect of the actual signal as a valuable act of communication in itself.71 Other components of the broadcast, such as company logos or theme songs, may similarly be protectable separately provided they meet the relevant originality thresholds. The Premier League case also left open the question for national efforts to substitute the protection of sport given its ‘specific nature … its structures based on voluntary activity and its social and educational function’.72 The result is best described as an activity which is underlain with an unprotectable product, which is thereafter bolstered by additional separate protectable elements. For eSports, the reverse is true. Any eSports competition revolves around a protected video game, which is bolstered by unprotectable elements such as competition, rules and structures. The potentially limited remit for scripted performances also lacks weight in the eSports context, as most eSports revolve around more adversarial and unscripted performances. Furthermore, we should presume that any creative tricks or choices made within the game, regardless of how skilful, would also be interpreted as being within the pre-programmed remit determined by the game’s publisher/developer and thus cannot satisfy the Nova court’s artistic requirement for an authorial grant to the player. In short, eSports rightholders have achieved what many traditional sports organizers have long sought—total exclusivity.73 As such, we might conclude that (at least from the copyright perspective), eSports are not functionally equivalent to sports. Nonetheless, traditional sports remain a useful comparator in demonstrating the complexities in this area: despite sharing similarities in the sense that they are both derived from unprotectable systems, the conclusions on protection of the overall work are different. Throughout all considerations of copyright subsistence, there is a clear tension between the ownership and regulation of a copyright product, and the natural analogy and similarities of the sporting event that relies on interactivity and a constantly changing and unpredictable landscape. 4. Staying ahead of the game: alternative models of copyright regulation The most fundamental component of eSports relates to their necessary digital medium (eg the ‘e’ in ‘eSports’). Any contest between players is translated through, and facilitated by, a video game. While this digital medium has been described as no more significant to eSports than, eg the medium of water is to swimming,74 by virtue of the fact this is created by protectable subject-matter, this results in a product subject to private, commercial control. This fact changes the landscape considerably; if a sport is protectable under copyright, all further downstream usage of that sport may be regulated by the owner. This is an extreme evolution from the doctrinal position of games as fundamentally unprotectable systems of rules; and indeed, the control that copyright invites in this new context is difficult to reconcile with the spontaneous and unpredictable nature of (something that models itself on) sport. The current UK approach to protecting video games seems to rely on a sliding scale of interpretation: at what point does an unprotectable system become a protectable expression? If we consider the analogue equivalent of a video game, the board game, in what circumstances would we permit the gamemaker to determine how, where, when and under what conditions their board game could be played? Would the fact that some board games feature original artistic works (eg on a game card) or literary expressions (in, eg Dungeons and Dragons) be enough to require permissions from the rightholder to hold a public tournament? At what level of complexity do these features need to reach in order to erase the unprotectable component? In short, when is it appropriate to limit how a game should be played? It is not immediately clear why video game rightholders are deserving of more copyright protection than board game designers because of the complexity involved, or indeed by merit of the fact this takes place via a digital medium. As courts emphasize the exclusivity of the rightholder, this important policy issue appears to have been missed in the UK context. At the root of this question is how copyright negates the inchoate nature of games, which both invite and depend on user interactivity. Inputs by the player, despite more closely resembling the random and unpredictable elements of sports performances, become extensions of the rightholder’s interest in the game. This simultaneously denies any third-party interests from tournament organizers, who are also very limited in the exceptions they may claim in making such content available. In doing so, the UK perspective limits eSports conceptually to the remit of ‘just a game’, denying the possibility of downstream control to anyone but the rightholder. Having outlined copyright subsistence issues in eSports, we can now offer a reflection on how to perceive games in the light of this new, professionalized competitive context. Do eSports not also have a ‘specific nature … its structures based on voluntary activity and its social and educational function’75 akin to traditional sports, worthy of further consideration? Despite some health concerns and worries concerning violent content,76 there is nothing to suggest that eSports do not carry many of the same benefits as traditional sports. During the COVID pandemic, eSports have proven that gaming in this context is mainly a means of socializing and connecting with others. eSports are more accessible than many traditional sports, with no geographical discrimination, ‘anyone being allowed to play’77 models, and potentially more opportunities for access for people with disabilities. At an industry level, there is the capacity to create jobs through marketing support and management, while culturally introducing the public to the idea of game spectatorship. As such, there are serious ramifications stemming from a sporting culture built around exclusive ownership that has the ability to shape social, economic and legal realities. We may conclude that there is a strong policy interest in limiting the downstream control claimed by a rightholder, particularly where this curtails the overall accessibility of eSports by third-parties, or its overall availability by excluding these third-parties. Many scholars have concluded similarly, with some suggesting the creation of a regulatory body (perhaps doomed to fail per the limitations outlined in Section 2 above),78 or custom-made copyright exceptions.79 However, given the already complex, multi-layered copyright system, this article suggests that, at least in respect of the latter suggestion, it is better instead to look to the existing, broader principles of copyright law, rather than attempting to tailor the law to be industry specific. To this end, this section focusses on one narrow possibility of altering the status of the ‘running’ of a game, an element which is most crucial for the accessibility of third-party eSports actors – the organizers and professional players. In doing so, this may introduce a reasonable limitation to the downstream control that can be claimed by a rightholder. Indeed, and as sketched above, under existing UK precedent, it is difficult to find a fitting (or satisfying) categorization for the running of a game, showing the player in a game environment interacting with it in a unique, unpredictable way. This section offers suggestions on how this may be adapted. 4.1 Looking to the past: the South Korean perspective As a starting point to this discussion, it should be understood that the UK treatment of eSports is culturally specific. Indeed, many of the copyright-related debates in eSports have occurred between (smaller) Asian companies and (larger) US games publishers (such as Blizzard or Riot Games). In scoping this problem-for-the-future, this article also now looks to the past—to the genesis of eSports as a predominantly South Korean commodity. South Korea is largely accepted to be the home of eSports and remains the largest market today. Here, eSports is a household term, and has been described as the ‘national sport’.80 Much of this support is cultural, with video gaming not only being an acceptable and encouraged pastime, but also a social event—widespread PC Bangs (cafes) function as popular meeting spaces for multiplayer local area network (LAN) gaming; this is in stark contrast to the more Western perception of games as a primarily private, and occasionally taboo, hobby. Indeed, one of the earliest copyright-related conflicts in eSports exemplifies this cultural tension.81 The quasi-official governmental Korean eSports regulatory body, KeSPA, organized and produced StarCraft tournaments, a game developed and published by US company Blizzard Entertainment. At that time, it was generally agreed that KeSPA had been responsible for the development and popularization of the eSports industry, and had generated a substantial amount of goodwill for the StarCraft brand.82 In 2007 KeSPA sold broadcasting rights to these competitions to other South Korean companies, a move which was in turn challenged by Blizzard. KeSPA, in their defence (and subsequent challenge against an exclusive broadcasting deal for Starcraft II between Blizzard and another company), initially submitted that eSports, as sports, were fundamentally ineligible for copyright protection and thus Blizzard had no legal standing to assert broadcasting rights over unprotectable subject-matter. Failing this, they submitted that the transformative aspects they had introduced to the underlying video game (eg commentary, tournament organization, merchandize, filming etc.) meant that any underlying copyright matter had been sufficiently transformed to make this an original product of KeSPA. When both of these points failed, KeSPA went on to argue that eSports should be regarded as a hybrid between a (private) game product and (unprotectable) sport. In suggesting this, KeSPA highlighted that such a separation was necessary for the sake of the growth of the eSports industry without running the risk of monopoly: If a game achieves success as an iconic eSports competition, and the developer pursues profits by declaring that their copyright is valid in the sports industry as well, then that is a large obstacle for eSports growth and establishment as a future sports-entertainment industry.83 Nonetheless, KeSPA could not dispute that Blizzard owned the exclusive rights to broadcast the game content, irrespective of any claim of transformative or adapted use.84 The dispute was subsequently settled outside of court, and KeSPA have since discontinued StarCraft based competitions.85 However, the concerns of stunted growth as raised by KeSPA at the time are now beginning to look well-founded as rightholders increasingly crowd-out third-party tournaments in favour of in-house arrangements. Legal approaches to eSports are notably distinct here too. At their earliest inception, the South Korean Computer Programs Protection Act 198686 recognized video games as a computer program in an analogous manner to the more UK ‘software code as literature’ treatment. However, where Western countries tend to protect video game outputs as audiovisual works, South Korea explicitly recognizes the ‘running’ of a video game as a cinematographic work, being a narrower category within the overarching branch of audiovisual.87 This is an important distinction, as the South Korean Copyright Act of 2009 permits the performance and broadcasting of cinematographic works to the public, provided no fee is charged in respect of this performance.88 The rationale appears to be that the display of this work is simply a performance of the rightholder’s purchasable merchandize, for which no fee has been obtained to the loss of potential rightholder revenue. Experiential play (eg the act of playing a game and creating outputs) and observed play (eg watching those outputs) are therefore distinct.89 Or to express this in another way, the act of playing a game for plays-sake and for sports-sake (which invites spectatorship) are distinct. This distinction, combined with other factors (such as an analogous ‘fair use’ and public quotation provision90) creates a legislative environment that is much more tolerant of eSports, and sets a more distinct boundary for rightholders. As similar distinctions are not recognized in the UK or US (of which the eSports creators so often inhabit), exclusivity has instead become the defining element of how eSports are regulated. At one point, it would have been possible to adopt the Korean perspective meaningfully into the UK framework. Essentially, this could have led to a clarification that the ‘running’ of a game (eg a recording of a playthrough) was a film in its own right, made by the person creating the recording who has contributed their skill and labour in an artistic manner to create that unique sequence. This would have fit neatly into the pre-Karen Murphy section 72(1)(c) CDPA world, allowing broadcasts of eSports in free-to-enter public spaces. However, such an approach seems no longer feasible (if we interpret the Nova case conservatively) or even useful (if it leaves no opportunity to widen dissemination of broadcasts in free-to-enter public spaces post-Karen Murphy). A further limitation of adopting this approach is reflected in the fact that KeSPA settled their dispute with Blizzard despite the existence of this exception; clearly, it was not so strong that it would enable KeSPA to continue producing StarCraft tournaments without Blizzard’s express permission. This may be due to the fact that the Korean exception applies only to public performances of cinematographic works that take place ‘in the connected premises’.91 Such an exception is clearly limited to the physical space in which the performance takes place, and specifically excludes ‘interactive transmissions’92 from the ambit of this definition, curtailing KeSPA’s ability to transmit broadcasts of eSports tournaments to the public outside that physical space (excluding, importantly, online platforms despite being by their nature ‘public’). The Korean perspective is nonetheless illuminative as to an alternative view of eSports and their copyright regime; here, there is clearly an awareness recognized in both the statutory provisions of the Copyright Act, and the opinion of the best-established and well-financed national regulatory body, that there should be a limit to the downstream control that can be claimed by a rightholder. Furthermore, this may be an issue that can be addressed within the copyright system itself. 4.2 Looking to the future: a new UK context In contrast to the Korean perspective, UK courts have rejected any distinction between experiential and observed gaming. In the Nova case, arguments that the literature aspect of games (eg the code) could be performed as a dramatic work for public spectacle were rejected, and thus seemingly rejecting the notion that gameplay can be performative. Here, the court held that any sequence of audiovisual outputs is entirely dependent on the experiential and dynamic nature of games inputs and therefore no outcome is predetermined and is entirely dependent on the unique inputs of the player; this capacity for variance in outputs results in gameplay being considered a non-unified, and non-dramatic work. Of course, the dramatization of more traditional literature scripts can also be dynamic and interpretative, varying in terms of outputs from play-to-play. However, at least in UK courts, there appears to be a differentiation between original interpretations depending on whether the medium is a human (eg in a play) or a computer programme (eg a video game). In the latter, choice is perceived as constrained by a programme which has no capacity to be interpretative or substitute instructions, thus not resulting in an original output irrespective of dynamic human inputs. In short, we have a tendency not to associate creative performances with play or games, which are necessarily about the pursuit of a goal, resulting in the repeated rejection of game play as expressive (the same is also confirmed in the US93). Conversely, the South Korean perspective of game outputs as cinematographic by comparison presupposes performance without explicitly categorizing them as such, apparently acknowledging that experienced and observed gameplay are quite distinct. This categorization instead suggests that some form of original expression is evident in a human playing a video game. As aforementioned, this has led KeSPA other South Korean broadcasters to maintain that eSports are a hybrid of a commercially owned product and sports entertainment; thus, while some authorial claims may be legitimate, others may not. While we are unlikely to recategorize video games as a different subject-matter (as aforementioned, the dramatization and performance of video games have been consistently rejected by courts the world over), the Korean argument is not dissimilar to the CJEU’s categorization of video games as having a ‘unique creative value’. We may conclude that video games can be conceptualized as having three elements: the software, which bundles rules and systems into a protectable literary work; the audiovisual content, which displays pre-set and pre-determined visual and audial outcomes; and the play, running or competition of a game, which is a system whose value is dependent on user inputs. The latter element, the recognition of play and running as a component of a video game, may provide a suitable limitation or natural endpoint to rightholder control in the eSports industry. The running of a game, being a functional output from a system of rules, showcasing the skill of the player, is not protectable. Effectively, this is an extension of the gameplay rule, which until now has worked to exclude these matters from the ambit of copyright—except when they’re displayed on a screen. In illustrating this point further, the parallel between traditional sports and eSports is helpful. In traditional sports, sports performances cannot be protected by copyright because they are not considered to be an artistic or creative expression, being constrained by the rules of the game and necessary to the functional outcome of winning the match. If a sport performance cannot be authored, it follows that a game performance also cannot be authored—in short, it should fall outside the boundaries of copyright. It is not an extension of the rightholders copyright, nor something that would automatically attract protection when created—this is a longstanding assumption that must be challenged. In doing so, this provides a way of interpreting an existing, built-in limitation of copyright without introducing a narrowly-defined exception. At the same time, it is capable of preserving rightholders’ interests which more clearly fall within the ambit of copyright. Indeed, by excluding the running of a game from the ambit of copyright (an extension of the existing gameplay rule), rightholders themselves are still entitled to sell their product, retain interests in the many other copyright components contained within a game and indeed, to create their own eSports tournaments and streams featuring player runs. But in respect of the latter, under this new interpretation they would not be the only party entitled to do so. By applying a reasonable limitation to claimable copyright subject-matter, third party organizers and players would be enabled to display certain game content without the increased transaction costs associated with obtaining permission from the publisher. In sum, it may mitigate some of the worst anticipated effects of ongoing downstream control of eSports, and in fact by increasing competition between different eSports actors may incentivise further innovation and better-quality eSports productions in order to attract top tier players and audiences alike. This suggestion is not without its limitations. First, there is plenty of evidence to suggest that (to varying degrees) game rightholders are much more permissive of displaying game content publicly than the law may suggest.94 Where, for example, end-user licensing agreements are more permissive towards the display of game content, this contractual relationship is more proximate and regulatory in effect than copyright law itself, which may lose significance and thus the benefit of the limitation. However, as many of these agreements caveat downstream usage on the premise that it is non-commercial in nature (usually excluding eg ad revenue generated through online platforms), the limitation may still prove useful to those third parties seeking to rely on it.95 Secondly, applying such a limitation to the running of games, while making up the bulk of eSports broadcasts, would nonetheless not apply to other more clearly protected forms of content (eg full-motion videos, music, dialogue etc.), thus potentially frustrating third parties’ ability to fully display all aspects of the game content.96 In particular, this may have genre-specific limitations: scripted, single-player games may tend towards having limited permutations (eg Until Dawn), and thus very limited capacity to benefit from a limitation that applies to the running (unscripted aspects) of a game. In contrast, unscripted (particularly multiplayer) games, of which eSports often comprise, are more likely to benefit from such a limitation by merit of having more permutations and displays of gameplay as such. These limitations notwithstanding, by critically assessing the doctrinal underpinnings of protectable game subject-matter (and the particular weaknesses of ownership of game running), we are in a better position to make informed decisions over what is being claimed where downstream control is exerted, and challenge an assumption that copyright will automatically apply to any and all game displays to the detriment of usability by third parties. In doing so, this may set reasonable limits on the amount of control claimed by a rightholder, preventing copyright being used as a governing function in a new sport industry. 5. Conclusion eSports is an industry characterized by its youth, both in the sense of being a young industry and overwhelmingly made up of a young generation of players. This brings with it the suggestion of unconstrained potential and impetus for change, but also new and disruptive forces that have so far received little legal scrutiny. This article has analysed the question of copyright in eSports from the perspective of UK law, mainly focussing on subsistence and subject-matter issues. This in itself is a complex, multi-layered topic, with many core legal issues as of yet unresolved. However, by examining the subsistence and subject-matter that underlies this new industry, this allows us to make informed decisions about what is actually being claimed—where do eSports fit within the copyright spectrum? This critical assessment challenges the assumption that copyright will attach to all aspects of a game without actually engaging with the restrictions of the UK system, which has been relied upon until now to legitimize the control of eSports whether through conditional licenses or self-regulated eSports franchises. Current statutory provisions and judicial decisions facilitate a system of downstream control that may stretch to even small details of eSports governance, with the capacity to impact people’s social, economic and legal realities. This degree of control is arguably not the purpose of copyright. Instead, as has apparently been the suggestion at the inception of eSports in South Korea, some authorial claims to a game are legitimate, some are not. By evaluating the conceptual ‘bones’ of eSports using copyright as an analytical tool, this article stresses that eSports should be understood as a sport that is fundamentally owned, and that this facilitates a potentially worrisome system of downstream control. However, this finding can be used to better inform any future regulations which may be imposed on the industry; any such regulations should have a holistic appreciation for all of the objectives of fostering creativity, with account taken of all the relevant stakeholders involved. In particular, this article has highlighted the potential inputs and creativity offered by actors other than the rightholders themselves, namely third party tournament organizers and professional players, both of whom create significant value to the eSports market. While the UK copyright framework struggles to account for the types of creativity offered by these actors, as is often the case with interactive, collaborative works, this article has offered a reading of broader copyright principles that may create an environment for expressiveness through play. As this article has outlined, this is not achieved by granting more copyright interests to other eSports actors, on which the law is relatively clear, but rather by carving out a space where copyright reasonably should not exist in the first instance. By setting a reasonable limitation on a game’s claimable subject-matter, particularly the running of a game, the copyright framework can be permissive of new forms of creativity, while at the same time reserving many of the legitimate interests of rightholders. Acknowledgement The author thanks Prof. Martin Kretschmer, Dr. Marta Iljadica, Dr. Oles Andriychuk and Chris Watson for their inspiration, kind support and feedback in writing this article. Many thanks also to the anonymous reviewer for their insightful comments and suggested improvements. Footnotes 1 See ProCon ‘Is Golf a Sport?’ (8 January 2019) <https://golf.procon.org/> accessed 27 September 2020, noting that many professional golfers would smoke or drink while playing (including John Daly, Ben Hogan, Arnold Palmer). 2 Public perception of eSports can be hostile. Football fans in Switzerland have recently protested increasing investments in eSports by throwing console controllers and tennis balls on the pitch (see S McCaskill ‘Why Swiss Soccer Protests Shows the Difficulty in Mixing eSports and Sports’ <https://www.forbes.com/sites/stevemccaskill/2018/09/25/why-swiss-soccer-protests-show-the-difficulty-in-mixing-esports-and-sports/#66106de6434a> accessed 27 September 2020). Former ESPN presenter Colin Cowherd claimed he would leave his job if required to cover eSports, labelling eSports players ‘nerds’ (see B Shea, ‘ESPN’s Colin Cowherd Says He Would Quit If Forced To Cover Video Games’ <https://www.gameinformer.com/b/news/archive/2015/04/27/espn-colin-cowherd-says-he-would-quit-if-forced-to-cover-video-games.aspx> accessed 27 September 2020). 3 See for example Riot Games’ 2017 franchising model which unilaterally restricted the profitability of European teams detailed in: I Khan, ‘Riot Releases Details on NA LCS Franchising with $10M Flat-fee buy-in’ (1 June 2017) <https://www.espn.com/esports/story/_/id/19511222/riot-releases-details-na-lcs-franchising-10m-flat-fee-buy-in> accessed 27 September 2020. 4 J Wolf, ‘Renegades, Riot and the Danger of Absolute Power’ (24 July 2016) ESPN <http://www.espn.co.uk/esports/story/_/id/17132668/renegades-riot-danger-absolute-power> accessed 27 September 2020. 5 eg banned eSports players may face a de facto complete ban from their respective eSports through the use of technical protection measures such as server verification technologies, which is an infringement to circumvent as per s 296 of the UK Copyright, Designs and Patents Act 1988 (CDPA). 6 See generally JT Holden, A Kaburakis and R Rodenberg, ‘The Future is Now: eSports Policy Considerations and Potential Litigation’ (2017) 27 Journal of Legal Aspects of Sport 46–78. 7 D Burk, ‘Owning eSports: Proprietary Rights in Professional Computer Gaming’ (2013) 161 University of Pennsylvania Law Review 1535–78. 8 JE Rothman, ‘E-Sports As a Prism for the Role of Evolving Technology in Intellectual Property ‘(2013) 318 University of Pennsylvania. Law Review 317–29. 9 M Arin, ‘Competing Competitions: Anticompetitive Conduct by Publisher-Controlled eSports Leagues’ (2020) 104(3) Minnesota Law Review 1585–646. 10 M Miroff, ‘Tiebreaker: An Antitrust Analysis of Esports’ (2019) 52(2) Columbia Journal of Law and Social Problems 177–223. 11 VM Karhulahti, ‘Reconsidering eSport: Economics and Executive Ownership’ (2017) 74(1) Physical Culture and Sport, Studies and Research 43–53. 12 UKIE, ‘UK Video Games Market’ (date unknown) <https://ukiepedia.ukie.org.uk/index.php/UK_Video_Games_Market> accessed 27 September 2020. 13 Detailed in RE de los Monteros, ‘Crónica del primer evento de los esports en el seno del Parlamento Europeo: Un primer paso esperanzador’ eSports Bureau (6 September 2017) <https://www.esportsbureau.com/cronica-del-primer-evento-de-los-esports-en-el-seno-del-parlamento-europeo-un-primer-paso-esperanzador/> accessed 27 September 2020. 14 With notable exceptions being Rocket League (a hybrid between vehicular racing and football), the FIFA series (football) and the NBA 2K series (basketball). 15 Detailed in T Kari and VM Karhulahti, ‘Do e-Athletes Move?: A Study on Training and Physical Exercise in eSports’ (2016) 8(4) International Journal of Gaming and Computer-Mediated Simulations 53–66. 16 D Lee, ‘The Real Scars of Korean Gaming’ (BBC, 5 June 2015) <https://www.bbc.co.uk/news/technology-32996009> accessed 27 September 2020. 17 The prize pool in eSports league The International 2019 amounted to over $34 million USD (over 21 million euros) (see eSports Earnings ‘Largest Overall Prize Pools in eSports’ (date unknown) <https://www.esportsearnings.com/tournaments> accessed 27 September 2020. 18 To the extent that we can be confident in crowdsourced databases (such as eSports Earnings <https://www.esportsearnings.com/> (date unknown) accessed 27 September 2020), the average salary for eSports players in a team are approx. USD 3000–5000 per month. 19 At the time of writing, the highest earning eSports player is Johan Sundstein, earning almost 7 million USD in their capacity as an eSports player (see eSports Earnings ‘Top 100 Highest Overall Earnings’ (date unknown) <https://www.esportsearnings.com/players> accessed 27 September 2020). 20 Newzoo, ‘Global 2018 Global eSports Market Report – Light’ (2018) <https://newzoo.com/insights/trend-reports/global-esports-market-report-2018-light/> accessed 27 September 2020. 21 See P Dorsey, ‘“League of Legends’ ratings top NBA Finals, World Series clinchers’ (ESPN, 2 December 2014) <https://www.espn.co.uk/espn/story/_/page/instantawesome-leagueoflegends-141201/league-legends-championships-watched-more-people-nba-finals-world-series-clinchers> accessed 27 September 2020. 22 The Economist, ‘Legends in Lockdown: The Pandemic has Accelerated the Growth of e-sports’ The Economist <https://www.economist.com/international/2020/06/27/the-pandemic-has-accelerated-the-growth-of-e-sports> accessed 27 September 2020. 23 eg rFactor2 was specifically designed for Formula 1 athletes and fans whilst the sport was otherwise suspended. 24 J Speight, ‘Germany to Recognise eSports as an Official Sport’ (DW, 8 January 2018) <https://www.dw.com/en/germany-to-recognize-esports-as-an-official-sport/a-42509285> accessed 27 September 2020. 25 S Paik, ‘eSports Recognized as a Regular Sport in Russia and Italy’ (TalkeSport, 16 June 2016) <https://www.talkesport.com/news/world/esports-recognized-russia-italy-sport/> accessed 27 September 2020. 26 The Digital Republic Bill 2016–2017 of 7 October 2016. 27 According to British eSports Association ‘British eSports Association’ (date unknown) <https://britishesports.org/> accessed 27 September 2020. The Bazalgette Review also calls for the ‘national recognition of eSports’ (P Bazalgette, ‘Independent Review of the Creative Industries, a Report for the Department for Digital, Culture, Media, and Sport’ (2017) at, p 71). 28 eg both Blizzard, following a takeover of Major League gaming, and Riot Games in respect of League of Legends, have vertically integrated to regulate eSports production completely internally (more restrictive). This has invited increasing regulations of, eg professionalism, by compelling players to be positive role models for their communities. In contrast, Valve in respect of its popular eSports title Counter-Strike: Global Offensive has historically not organized any eSports tournaments in respect of this title, instead leaving this exclusively to third-party organizers (more permissive). Similarly, their approach to micro-managing player behaviours is much more permissive. More details on both in D Hope, ‘Addressing the Issue of Professionalism in eSports’ (8 August 2018) <https://gammalaw.com/addressing_the_issue_of_professionalism_in_esports/> accessed 27 September 2020. 29 With the exception of gambling and consumer protection laws, detailed in DLA Piper ‘eSports Laws of the World’ (21 November 2019) <https://www.dlapiper.com/en/us/insights/publications/2019/11/esports-laws-of-the-world/> accessed 27 September 2020. 30 This exclusion is not intended to mitigate the important role played by team owners and the role they play in negotiating contracts between players and tournament organizers/rightholders or sponsors. Teams may also generate much intellectual property, mostly by treating players as valuable media assets in themselves, thus generating interest in ownership of branding and image rights. Content creation by contrast makes up a much smaller proportion of overall value to the team (mainly ad revenue from streams on platforms). Labour law may also provide an additional, complicating layer here—see: HA Bayliss, ‘Not Just a Game: the Employment Status and Collective Bargaining Rights of Professional eSports Players’ (2016) 22(2) Washington and Lee Journal of Civil Rights and Social Justice 5, 359–409. 31 As a general rule, the game’s developer would typically be construed as the ‘author’ under copyright, but the game’s publisher tends to be the rightholder who exploits it (increasingly, the developer may be a wholly owned subsidiary of the publisher). 32 A Ramos and others, ‘The Legal Status of Video Games: Comparative Analysis in National Approaches’ (2013) <https://www.wipo.int/publications/en/details.jsp?id=4130&plang=EN> accessed 27 September 2020. 33 Nintendo v PC Box, C-355/12, EU:C:2014:25. 34 ibid para 23. 35 ibid. 36 YH Lee, ‘Play again? Revisiting the Case for Copyright Protection of Gameplay in Video Games’ (2012) 34 EIPR 865, 865–74. 37 C Katzenbach, S Herweg and L van Roessel, ‘Copies, Clones and Genre Building: Discourses on Imitation and Innovation in Digital Games’ (2016) 10 International Journal of Communication 838–59 and L van Roessel and C Katzenbach, ‘Navigating the Grey Area: Game Production between Inspiration and Imitation’ (2018) 26(2) Convergence: The International Journal of Research into New Media Technologies 402–20. 38 CDPA s 5(b). 39 However, see T Aplin, Copyright Law in the Digital Society: The Challenges of Multimedia (Hart Publishing 2005) who concludes that there is no reason that the running of video games cannot be classified as a ‘film’ as CDPA s 5(b) suggests that frames do not need to be linear or predictable to be categorized as such, but merely related. 40 Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA 29 Civ 219. 41 ibid para 12. 42 ibid para 16. 43 ibid para 17. 44 In this case referring to the ‘in-time’ movement of cue and meter (ibid para 13). 45 See further discussion of multimedia products and the problems of a closed-list system in Aplin (n 39) and IA Stamatoudi, Copyright and Multimedia Products: A Comparative Analysis (CUP 2009). 46 CDPA s 20. 47 As literary works, see CDPA s 3. 48 Blizzard, eg requires the completion of a separate eSports licence in order for third-parties to organize tournaments. See: Blizzard ‘Organize your own community eSports competition’ (date unknown) <https://communitytournaments.blizzardesports.com/en-gb/> accessed 27 September 2020. 49 S Stewart, ‘Valve Releases Statement on DotaTV Broadcasts Following ESL One Controversy’ IGN (2018) <https://www.ign.com/articles/2018/01/26/valve-releases-statement-on-dotatv-broadcasts-following-esl-one-controversy> accessed 27 September 2020. 50 See for example OECD, ‘Participative Web and User-Created Content: Web 2.0, Wikis and Social Networking’ (2007) <https://www.oecd.org/sti/ieconomy/participativewebanduser-createdcontentweb20wikisandsocialnetworking.htm> accessed 27 September 2020, which defines user-generated content as ‘freely provided amateur-created content’. 51 We might speculate, eg that a discussion of, eg trade mark protection for ‘gamertags’ is imminent, given the close tie a player has with this which tends to encapsulate their eSports identity. 52 Surprisingly, in the eSports context there is less emphasis on control of in-game image rights such as, eg a player avatar, as many eSports games use pre-set characters rather than a tailor-made avatar customised by a specific player. Instead, many eSports players may have competencies, or be renowned for playing, a particular character from a pre-created set of characters in games such as Overwatch—these characters are not custom-designed by the player, so there is rarely a question of intellectual property ownership. However, there may be some interesting questions about ownership of customisable player ‘skins’ (see M Iljadica, ‘User Generated Content and its Authors’ in T Aplin (ed), Research Handbook on Intellectual Property and Digital Technologies (Edward Elgar 2020) 163–85. 53 Discussed in Burk (n 7) and SM Kelly and KA Sigmon, ‘The Key to Key Presses: eSports Game Input Streaming and Copyright Protection’ (2018) 1(1) Interactive entertainment Law Review 2–16. 54 Nova Productions v Mazooma Games [2007] EWCA Civ. 219, para 116. 55 ibid. 56 The Nova court’s interpretation of ‘sufficient unity’ was based on Green v Broadcasting Corporation of New Zealand [1989] 2 All ER 1056, which suggested that dramatic formats must contain a degree of repeatability from performance to performance. Subsequent developments in Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd [2017] EWHC 2600 (Ch) instead defined unity as requiring more of a baseline framework from which something may be repeated in a recognisable, rather than uniform, fashion. See also Ukulele Orchestra of Great Britain v Clausen [2015] EWCH 1772. 57 Noting that this is potentially in conflict with the decision in Levola Hengelo BV v Smilde Foods BV, C-310/17, EU:C:2018:899, which defined the notion of ‘work’ as an autonomous concept to be given uniform interpretation throughout the EU. 58 Nova Productions v Mazooma Games [2007] EWCA Civ. 219, para 106. 59 ibid. 60 T Margoni, ‘The Protection of Sports Events in the EU: Property, Intellectual Property, Unfair Competition and Special Forms of Protection’ (2016) 47(4) IIC 386–417. 61 American Osteopathic Association, ‘Elite-level Video Gaming Requires New Protocols in Sports Medicine: eSport Athletes at Risk for Physical, Psychological and Metabolic Disorders’ (Science News, 4 November 2019) <https://www.sciencedaily.com/releases/2019/11/191104121617.htm> accessed 27 September 2020. 62 This quality is not typically associated with the UK standard of originality—artistry as an independent criterion is typically only considered for works of artistic craftsmanship (CDPA s 4(1)(c)). 63 To name but a few see, eg D Hemphill, ‘Cybersport’ in CR Torres (ed), The Bloomsbury Companion to the Philosophy of Sport (Bloomsbury Publishing 2005), SE Jenny and others, ‘Virtual(ly) Athletes: Where esports Fit within the Definition of Sport’ (2016) 69(1) Quest 1–18 and J Parry, ‘eSports are Not Sports’ (2019) 13(1) Sport, Ethics and Philosophy 3–18. 64 C Abanazir, ‘E-sport and the EU: The View from the English Bridge Union’ (2019) 18(3) The International Sports Law Journal 102–13. 65 B Boyden, ‘Games and Other Uncopyrightable Systems’ (2011) 18(2) George Mason Law Review 439–80. 66 Football Association Premier League and Others v QC Leisure and Others (C-403/08) and Karen Murphy v Media Protection Services Ltd (C-429/08) EU:C:2011:613. 67 ibid para 98. 68 See O Andriychuk, ‘The Legal Nature of Premium Sports Events: “IP or Not IP – That is the Question”’ (2008) 7(3–4) International Sports Law Journal 52–71 and Margoni (n 60). 69 For a full discussion, see Margoni (n 60). 70 CDPA s 6. 71 Detailed further in Margoni (n 60). 72 art 165 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (TFEU) [2016] OJ C202/1. 73 The negotiation mandate for the Copyright in the Digital Single Market Directive approved by the European Parliament in September 2018 included provisions for a new art 12a, being a new exclusive right for sport event organizers to record events and make them available through publication or broadcast. 74 MR Llorens, ‘eSport Gaming The Rise of a New Sports Practice’ (2017) 11(1) Sport Ethics and Philosophy 1–13, see sec ‘Specific Features’. 75 See TFEU n 72. 76 Many games on which eSports are based depict violence, involving weapons, fighting, blood, and gore (eg Call of Duty). While both shooting and fencing are recognized Olympic sports, the depiction of blood or gore represented a ‘red line’ for eSports (in contrast to the ‘civilised expressions of violence’ in traditional sports) (see BBC, ‘eSports “too violent” to be Included in Olympics’ (4 September 2018) <https://www.bbc.co.uk/news/newsbeat-45407667> accessed 27 September 2020. 77 See eg the Fortnite World Cup 2019 where 40 million players applied to participate in the tournament. 78 See LL Chao, ‘“You Must Construct Additional Pylons”: Building a Better Framework for eSports Governance’ (2017) 86(2) Fordham Law Review 737–65 and J Rogers, ‘Crafting an Industry: An Analysis of Korean Starcraft and Intellectual Properties’ (24 August 2012) <https://jolt.law.harvard.edu/digest/crafting-an-industry-an-analysis-of-korean-starcraft-and-intellectual-properties-law> accessed 27 September 2020. 79 Rogers, ibid. 80 S Evans, ‘Video Gaming: South Korea’s New National Sport?’ (BBC 9 December 2015) accessed 27 July 2020. 81 See full analysis by J Joo, ‘Public Video Gaming as Copyright Infringement’ (2011) 39 AIPLA Quarterly Journal 563–601. 82 See Rogers (n 78). 83 English transcription of KeSPA statement provided by Waxangel, ‘[Update] KeSPA Speaks Out on Intellectual Property Rights’ (Team Liquid 3 May 2010) <https://tl.net/forum/brood-war/123275-update-kespa-speaks-out-on-intellectual-property-rights> accessed 27 September 2020. 84 See statement by Blizzard in K Tong-hyung, ‘Blizzard Vows to take MBC to Court’ (Korea Times, 12 February 2010) <http://www.koreatimes.co.kr/www/news/tech/2010/12/133_77381.html> accessed 27 September 2020: ‘StarCraft is not a public domain offering, as Blizzard has invested significant money and resources to create the StarCraft game and the overall StarCraft universe (…) Classifying StarCraft and other e-sports as part of the public domain deprives developers such as Blizzard of their IP rights. There will be no incentive to do what Blizzard had done to balance the games for competition, which is a more difficult task than creating a normal game.’ 85 Noting that a competition/antitrust angle was not discussed but may nonetheless be appropriate (eg refusal to deal or essential facility doctrine, or ‘copyright misuse’ as proposed by Miroff (n 10). 86 Computer Programs Protection Act (Act No 3920 of December 31, 1986, as amended up to Act No 5605 of 30 December 1998). 87 Copyright Act of 1957 (Act No 432 of 28 January 1957, as amended up to Act No 5015 of 6 December 1995) art 2. 88 ibid art 29(2). 89 Noting that this may open the ambit for a defence of communicating protected content to a ‘new public’ (see Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA, C-306/05, EU:C:2006:764). 90 Copyright Act of 1957 (n 87), art 28 (‘Quotations from Works Made Public’) and more general fair use preamble in article 1 (‘ … to promote fair exploitation of works in order to contribute to the improvement and development of culture’). 91 ibid, art 29(2). 92 ibid, art 2. 93 DaVinci Editrice S.R.L. v ZiKo Games, LLC, 183 F Supp 3d 820, 828-30 (SD Tex 2016)—instead, video games create an ‘environment for expression’ (at 13). 94 As a disclaimer, levels of tolerance vary greatly between publishers, and whilst some are very permissive (see eg Valve), other’s like Nintendo have developed a notorious reputation for preventing streaming of game footage for eg not being ‘fun’. See B Crecente ’Nintendo, ‘Wii U won’t get Twitch Gameplay Streaming because it’s not Fun to Watch’ (Polygon, 12 June 2014) <https://www.polygon.com/2014/6/12/5802560/nintendos-fils-aime-wii-u-wont-get-twitch-gameplay-streaming-because> accessed 10 August 2020. 95 Correspondingly, and for the same reason, the commercial nature and interests of third party eSports actors would likely be fatal to any claim to ‘fairness’ under a fair dealing exception, such as quotation (CDPA s 30). 96 As a side effect, this may also provide ongoing justification for rightholder restrictions on streaming of ‘spoilers’—see, eg Atlus’s restrictions on streaming Persona 5 past a certain (relatively early) point in the game: Atlus, ‘An Update on Persona 5 and Streaming’ (date unknown) <https://atlus.com/update-persona-5-streaming/> accessed 10 August 2020. © The Author(s) 2020. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - A question of (e)Sports: an answer from copyright
JF - Journal of Intellectual Property Law & Practice
DO - 10.1093/jiplp/jpaa157
DA - 2021-02-02
UR - https://www.deepdyve.com/lp/oxford-university-press/a-question-of-e-sports-an-answer-from-copyright-TC8smdLF6R
SP - 960
EP - 975
VL - 15
IS - 12
DP - DeepDyve
ER -