“Technology evolves faster than legislation” is a statement that has become particularly relevant in the present Digital Age. The gaming industry now offers a highly interactive, collaborative, and competitive virtual community, providing a platform for several flourishing opportunities, including “Live Streaming”. This emergence has given rise to innovative applications and web platforms for streaming or broadcasting content, targeting a wide range of traditional broadcast audiences.

On June 25, 2022, a Spanish streamer, Ibai, along with other content creators, hosted an event called “La Velada Del Año II” on his Twitch stream, which became the most concurrently viewed live video game stream ever, with over 3.3 million viewers . This new form of entertainment, where viewers from across the globe join streaming platforms to watch others play games and hear their conversations, is gaining momentum day by day. The rise of Internet Protocol Television (IPTV) technology has further stimulated the growth of this culture. Twitch TV currently dominates the marketplace with over 140 million active monthly users. Video games such as League of Legends, Valorant, Clash of Clans, and Fortnite are among the top 10 most-watched games on Twitch as of December 2022 . This industry has been generating billions of dollars annually, with revenues predicted to reach $300 billion by 2025.

Live streaming of video games generally refers to “using PCs, smartphones, tablet computers, and other terminals as carriers, relying on webpage or client technology to build a virtual network live broadcast room, providing real-time performance creation for game anchors and supporting interactive rewards between anchors and users”.

The ultimate goal of professional gamers doing live streams is to gain popularity among their audience, but the current copyright regime has a lot of loopholes from a legal point of view. Copyright law all over the world has not been developed to cater to the needs of present questions related to copyright. Presently, the whole of the laws and rights relating to copyrights depend upon the developers of the video games, despite the streamer’s creative and unique works it fails to protect them. The audience chooses to see a particular stream because of the unique expression of the streamer and not because of the gameplay, that is why it is necessary to protect these unique expressions of the streamers to facilitate the growth of this industry.

This article thus analyses this current conundrum of whether streamers or reaction channels merely reproduce existing copyrighted materials or they through their own unique expression or intellectual labor produce new unique work.

Streamers’ Game Operation: Creation of Original Work Based on “Interactivity” of Video Games

Video games include diverse creative elements such as audio, videos, animations, and game plots. The essence of video game operation is a series of procedural responses generated by pre-edited and fixed computer-coded instruction sequences, responding automatically or in real-time to the player's requests. The core content of electronic games can be divided into two parts: the Game Engine and the Game Resource Library. The game engine is a computer program, while the game resource library is a collection of video, audio, text, pictures, and other materials pre-designed by the game developer and integrated into the program. The running screen generated during the game is a different arrangement and combination of these game materials driven by the game engine.

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If the game running screen constitutes corresponding written works, musical works, artworks, and audio-visual works, it should be undeniably copyrightable. However, video games differ from traditional audio-visual works due to their inherent “interactive” features. The live game screen presented on the terminal is not always a simple reproduction of game materials but must consider the external factor of “player operation” intervention. The pre-set audio-visual materials in the program cannot be played automatically and must be processed by players to form the corresponding dynamic running screen.

The player's operation of the game is a continuous process of working with game materials, presenting a picture by sending the game engine an operation command recognized by the program. This shows that, except for the “cutscenes” beyond the player’s control, the formation of any game running screen is inseparable from the player’s operation. The game operation screen and the running screen of the game itself are not naturally the same in the online game live stream.

If the “running screen of the game itself” is defined as the collective presentation of music, animation, text, pictures, and other materials designed and fixed by the game developer, it remains almost unchanged for every player. Players may have no original contribution to the final screen or their contribution is insignificant compared to the developer. In some online game live broadcasts, the game operation screen of the streamer is equivalent to the running screen of the game itself, and the copyright of the final live broadcast screen belongs to the game developer without dispute.

However, video games are highly complex, with various playing techniques. In a specific stream, the game operation screen of the streamer may be completely different from the running screen of the online game itself. The operation skills, strategy selection, resource utilization, role dressing, and other content displayed by the game anchor in the live broadcast may reflect strong personalization and unique views on the game rules, exceeding a simple arrangement of the game’s materials. This creates a new work different from the game running screen, making the streamer no longer a pure game consumer.

Copyright protects original expressions. The originality standard of copyright works requires that the work should be independently created by the author, not directly copying or plagiarizing existing works, and should retain a certain degree of originality. If the streamer’s game operation screen constitutes an original expression, it is not a direct repetition of the game material.

The premise that the game streamer’s operation screen meets the “originality” standard is that the video game reserves enough creative space for players to visualize their own game ideas. Only then can the game operation behavior be seen as “creation”, and the dynamic picture formed by the operation can reflect the players or game streamers rather than game developers.

Analysis of the Legal Identity of Anchors: Performers or Deductive Authors

Denial of the Identity of the Streamer as a “Performer”

Some scholars believe that the operation of the streamer during the game does not meet the originality standard required by the Copyright Law and is not an act of creating a work. However, the streamer has invested intellectual labor in the game’s dissemination, forming a picture incorporating personal expression. Therefore, although not an author, the streamer can be protected as a neighboring right holder.

In online game live broadcasts, streamers use their skills to display the game’s essence to the audience, constituting a “performance”. This process can define the host as a “performer” who enjoys the performer’s right to the game live streaming screen. Judicial practice has also defined players’ game operations as performance behavior.

However, the author believes that the streamer should not be considered a “performer” in online game live streaming. “Performance” in the Indian Copyright regime includes live performances or broadcasting rights, referring to the reproduction of work to the public through voice, movement, language, or props. Broadcasting refers to the public dissemination of live performances.

Determining whether live streaming of a video game is a live performance involves considering the location of the “performing act” or “public communication of the performance” and the audience. In live broadcasting, streamers broadcast their game operations live to a large number of viewers through the Internet, creating a spatial mismatch between the live game broadcast and the online audience.

The process of watching online game live broadcasts differs from concert audiences appreciating live performances. Streamers send network signals to audiences in real-time through the Internet, and audiences receive signals at their respective equipment terminals. From the perspective of the live broadcast’s nature, it should not belong to live or mechanical performance and cannot be included in performance rights.

The live broadcasting of online games does not come under the category of wireless or cable rebroadcasting and neither it is interactive, even if it is regulated by the Copyright law, it will come under the ambit of broadcasting through technical equipment.

The Copyright Act in its section 2(qq) defines a ‘Performer’, the provision states that a performer includes any dancer, actor, musician, acrobat, singer, and others who put up a performance.

In the Indian Context, the interpretation of “live” in section Section 2(q) is also ambiguous with pending litigation. In the case of Sushila v. Hungama Digital Media Private Ltd. , the Delhi District Court restricted the meaning of the word “live” to only performances in concerted atmosphere infront of an audience, on similar lines the online live streamers where excluded from performers protection in the case of IPRS v. Aditya Pandey . Thus, further emphasizing on the fact that the current copyright regime does not protect the rights of the streamers.

Analyzing the Possibility of the Streamer Being a Derivative Author

The work of a streamer can be considered a “derivative work author” separate from the gameplay if the streamer broadcast does not come under the category of performance.

The Copyright Law makes a distinction between “unique and original works” and ‘derivative works”, and protects the later work to preserve the author’s creativity, if the streamer’s work is considered under this type of work, the fundamental rights of the streamer will be protected. But for it to be considered as derivate work, the operation of the game should be considered in the context of interactive video games, keeping in mind their creativity and their contribution.

Conclusion

After a thorough analysis of the article it can very well be concluded that, with the evolution of technology, development of video games, and platforms where people express themselves playing these games, the need for the protection of the works of the streamers needs immediate and urgent attention. These video game streamers through their creative engagement produce original and unique work that needs to be protected under the Copyright laws. This analysis suggests that streamers' operations can be seen as creating new, original work deserving of protection. Future legislative and judicial developments should consider the dynamic nature of video game streaming and ensure that the rights of streamers are adequately recognized and protected.

Author : Abdul Ahad, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

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