What is the copyright status in eSports casts?

Some eSports producers have started clamping down on unlicensed casts, and this could have an interesting effect on the profitable business, but it could also give us a hint about the copyright questions surrounding game broadcasting.

For those unfamiliar with the subject, eSports are competitive encounters in which gamers team up (or play solo depending on the game) and play games in tournaments that are streamed to the world. Before you dismiss this as a silly fad, this is a huge market, with winners making sometimes millions of dollars; for example, at the 2017 The International tournament in Seattle, Team Liquid won a mind-boggling prize of $10,862,683 USD. Some of the most popular games include League of Legends, Dota2, Overwatch, Hearthstone, Counterstrike and Starcraft II.

An interesting copyright development has been taking place with Dota2 casts. PGL is one of the major eSports organisers in the world, and they have been issuing copyright complaints to YouTube to try to remove the growing side-market of digest and highlight casts. Tournaments are often streamed live in several places, including official YouTube channels, as well as casting app Twitch, and often the organiser’s own website. Most of the revenue comes from these streams, tournaments are often sponsored by tech companies, particularly hardware, but also energy drinks and similar items directed at the gamer audience. The streams often have adverts as well in between games. There is also a market in video-on-demand (VoDs) of the casts. But an interesting development has taken place recently, some YouTube channels have been editing the VoDs into highlight reels. Some games can take quite a long time, sometimes over an hour, so these editors put together a cast of the highlights, just like Match of the Day.

PGL and other organisers have now been clamping down on these unauthorised casts. For example, Dota2 caster NoobFromUA had his channel taken down due to three copyright strikes:

When they contacted PGL, they got an explanation that they were copying their content.

How is this possible? Aren’t streams public? Well, it’s complicated. The copyright of the game itself is owned by the companies that make the games (Blizzard, Valve, etc). Broadcasting the playing of a game could be an act restricted by copyright, but most game companies know that this is an important part of their markwting and success, so they do not enforce their copyright on broadcasting the playing of the game for non-commercial purposes, or come up with licensing arrangements with the large commercial players.

But the streams are much more than the raw game, they involve the skill of those playing, and they are often narrated by talented casters. The case law is clear, in Nova Productions v Mazooma Games the playing of a computer game was not considered a dramatic work, and therefore not protected by copyright. Similarly, in the CJEU case of Football Association Premier League v QC Leisure concluded that football matches themselves are not protected by copyright; US law has a similar result in NBA v Motorola. So if the game images are not enforced by the game producer, and the playing of the game is not protected, then what is the copyright claim by companies such as PGL? Actually, it seems like the main copyright claim is in the narration. Games can be boring in their own right, and a good narrator (known as caster) can  make or break a stream, and personally I got into watching Dota2 on the back of some amazing casts during the 2013 The International tournament. The casting is a performance, and therefore it can be protected.

So what has been happening is that PGL has been taking down highlights claiming ownership of the casts, as they pay narrators and the performances are work for hire. So highlight providers have reacted and removed commentary from their highlights, which makes the experience less exciting.

The next step is that highlight channels will get independent casters to narrate the games, so we will wait and see what is the next move.

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