=Paper=
{{Paper
|id=Vol-3126/paper45
|storemode=property
|title=Copyright issues in digital society: sports video games
|pdfUrl=https://ceur-ws.org/Vol-3126/paper45.pdf
|volume=Vol-3126
|authors=Daniil Shmatkov
}}
==Copyright issues in digital society: sports video games==
https://ceur-ws.org/Vol-3126/paper45.pdf
Copyright Issues in Digital Society: Sports Video Games
Daniil Shmatkov 1
1
Scientific and Research Institute of Providing Legal Framework for the Innovative Development of the National
Academy of Legal Sciences of Ukraine, Chernyshevskaya st., 80, Kharkiv, 61002, Ukraine.
Abstract
This article addresses application of copyright protection to sports video games, discusses
relevant important issues, and is aimed at disclosing intellectual property approaches applicable
to the various elements of that entertainment and sports technology. The main focus is put on
issues such as copyrightable subject matter in sports, proprietary rights in sports video games,
national approaches to copyright laws, complex issues of vesting copyright, and relationships
between creators and users of video games. Particular attention is paid to protecting the athletes
moves that appear in video games and elaboration of the copyright issues in Ukraine. It is
suggested that categorized copyright protection is an adequate and flexible approach to sports
video games as an independent and significant genre containing various copyrightable objects.
Keywords 1
Copyright, video games, digital society, intellectual property, e-sports, streaming video games.
1. Introduction large number of questions on law enforcement.
Creating and using video games is an intellectual
property challenge [8]. Therefore, these questions
The video game market has been developing
are interesting for science.
for over sixty years and according to various
Video games can be grouped into several
statistics its size is valued at more than USD 150
different genres (massively multiplayer online
billion. There is a lot of evidence for its further
role-playing games, action adventure, first-person
growth. The video game industry has already
shooter, sports, rhythm, driving, strategies,
eclipsed the music and film industries [1]. Even
puzzle, board and card games, gambling, etc.) [9]
the COVID-19 pandemic did not slow down this
and may have distinctive goals (entertainment
dynamic; on the contrary, pandemic has
games, serious games or educational games,
accelerated it, as has the growth in the number of
applied games, and social games) [3]. Different
gamers around the world [2].
games have a large number of game elements,
Legal issues cannot ignore such a thriving
game rules standards and special expression in
digital industry. Discussions about intellectual
gameplay, and therefore they may have different
property in video games are not uncommon and
legal protection [10].
have taken place since the advent of video games
Among the described genres, sports video
[3]. In most cases that digital systems are covered
games are of interest in several ways. First, sports
by copyright law, patent law, trademark law, and
video games market represents one of the highest
competition law [3], the right of publicity, the
selling types of video game in the industry [11].
freedom of speech, expression, and creativity [4],
And given such success, it is prone to spread
and the right to privacy. But it is copyright law
copying, cloning, imitation, re-engineering of
that penetrates the most the video game
other developers’ ideas [12]. Second, in 2019, the
production industry [5; 6]. Modern developments
celebration of Intellectual Property Day was held
contain many creative and expressive elements
under the slogan “Reach for Gold” where World
[7] that are covered by copyright, which creates a
Intellectual Property Organization emphasized
ISIT 2021: II International Scientific and Practical Conference
«Intellectual Systems and Information Technologies», September
13–19, 2021, Odesa, Ukraine
EMAIL:
shmatkov.d@ndipzig.org.ua.
ORCID: 0000-0003-2952-4070.
©️ 2021 Copyright for this paper by its authors. Use permitted under Creative
Commons License Attribution 4.0 International (CC BY 4.0).
CEUR Workshop Proceedings (CEUR-WS.org)
the value of copyright among other intellectual Premier League, which states that competitions
property in the world of sport business, although limited by the rules of the game leave no room for
it is not the only feature of the sport [13]. Sports creative freedom in the sense of copyright.
video games are complex and complicated, which Scientists note that scripted sports, adversarial
comprises different copyrightable objects [10]. and routine-oriented sports, don’t deserve
Comparative analysis of sports and sports video copyright protection [16; 18], while
games is interesting for science. choreographies of routine-oriented/aesthetic
Copyright in sports is still causing debate sports [19] as well as sports celebration moves
among the scientific community, and the [19; 20] are copyrightable subject matter. It
digitalization of sports has begun to generate even follows from studies and judicial practice that
more debate. establishing the existence of copyright requires a
This article addresses application of copyright number of procedures, including an identification
protection to sports video games, discusses of moves compliance to the strict rules, the
relevant important issues, and is aimed at number of moves performed in choreography, the
disclosing intellectual property approaches presence of competition, the ability to move in a
applicable to the various elements of that different way or simpler, peculiarity of moves,
entertainment and sports technology. compliance of moves with the public morality,
etc.
2. Copyrightable Subject Matter in A video game, like a sports game, does not
necessarily lead to a copyrighted work, which is
Sports determined by the level of originality of the work
and the dichotomy of functionality and
In 2019, during the celebration of Intellectual expressiveness, but the scope of the copyrightable
Property Day, the copyright was only covered as subject matter in sports video games is much
a matter of broadcasting sports events. The larger.
portrayal of the sports performance through a
picture or media coverage has good prospects for
attracting intellectual property in different
3. Proprietary Rights in Sports Video
jurisdictions [14]. But there are also other Games
copyrightable objects.
Sometimes courts had taken the position that Video games include different technological
sports performances meet the threshold for aspects. In these IT products, in general copyright
copyrightable subject matter [1]. A sports event covers the following objects [7; 10]:
per se cannot be considered as copyright [15]. Musical compositions.
Sports are divided between the following different Sound recordings.
groups, into which sports might fall, and these Voices.
categories are arranged in order from the least to Imported sound effects.
the most possibly copyrightable ones [16]: 1) Internal sound effects.
sports events; 2) scripted sports plays; 3) routine- Photographic images.
oriented competitive sports; and 4) routine-
Digitally captured moving images.
oriented non-competitive sports. Although this
Animations.
classification is not a panacea for obtaining
Texts.
copyright – for example, in the recent decision of
the Spanish Supreme Court from October 18, Storylines.
2020 regarding the claim of a professional Characters.
bullfighter to obtain copyright protection, court Primary game engine or engines.
sentenced that the bullfighter cannot register his Ancillary codes.
choreography as an object of intellectual property Plug-ins.
since it cannot be expressed objectively [17]. The Comments.
question of whether bullfight is a sport, perhaps, a In sports video games, the storyline and
debatable one, but the most important thing in this characters as copyrightable objects raise
case is that in relation to expressive bullfight, the controversial issues. While, in some cases,
court referred to the decision of The Court of copyright holders of various management games
Justice of the European Union from October 4, (e.g. Fantasy Football) can claim such rights,
2011 with reference to Football Association copyright holders of realistic simulations of sports
are unlikely to get copyright protection for their In Ukraine, video games are not mentioned in
storyline. By analogy with the legal issues in the legislation (in the Civil Code of Ukraine, in
sports discussed in the second paragraph, rules, the Law of Ukraine “On Copyright and Related
placement of athletes on the field, etc., are not Rights”, and in the Law of Ukraine “On the
copyrightable subject matter even in the digital Distribution of Copies of Audiovisual Works,
space. Phonograms, Videograms, Computer Programs,
In addition, the list above lacks choreography, and Databases”) despite the fact that the Supreme
pantomime or parody that an athlete can display, Court back in 2006 pointed out the need to
for example, during a score celebration that is a describe a video game as an object of copyright
recognizable attribute of a real athlete. Such law in the Law of Ukraine "On Copyright and
animation elements are widely used in sports Related Rights" and in the Law of Ukraine “On
video games to enhance their believability and the Distribution of Copies of Audiovisual Works,
entertainment. In this case, the digital version of Phonograms, Videograms, Computer Programs,
such movements can be considered, for example, and Databases”. It means that the laws mention
as derivative work. But as the lawsuits against copyrightable objects such as computer programs,
Epic Games [21] show, not every set of moves can databases, audiovisual works, etc., which,
be qualified as copyright, which means that it is probably, could be applied to video games, but do
necessary to take into account all the most not directly mention video games (and, of course,
common and relevant requirements for obtaining do not distinguish their genres). In Ukrainian legal
the rights of this intellectual property – the proceedings, there is a lack of theory and practice
fixation requirement, the human authorship applicable to that digital system, but some
requirement, copyrightable subject matter, and the comments [23] indicate that in Ukraine it is more
originality requirement. likely that the approach of separate protection of
each creative element of video game according to
4. National Approaches to Copyright its specifics is applied.
The more legislators and courts will recognize
Laws the legal versatility of IT, the easier it will be for
the creators to assess in advance the potential legal
Each of the EU member states, as well as the risks and opportunities and create original works,
USA, Canada, China, Ukraine and other countries the more interesting the game will be for gamers,
have their own national copyright laws, which are and the easier it will be to build a thriving national
based on the framework of international laws and sector of the economy.
agreements such as the Berne Convention (1886),
the TRIPS Agreement (1994), and the WIPO
Copyright Treaty (1996). National approaches to
5. Complex Issues of Vesting
video games can be divided into the following Copyright
areas:
Video games are classified as functional Both e-sports and streaming sports video
software with a graphical interface. games are modern trends. At first glance, the use
Separate or categorized protection of each of neighboring rights is appropriate in these
creative element according to its specifics is activities, but research and practice indicate the
provided. need for a more detailed analysis of the
Video games are classified as audiovisual approaches to these issues.
works.
Video games are not classified and not 5.1. E-sports
clearly defined in the legislation.
The first approach is used in countries such as Born in Asia and spread to Europe and
Canada, China, Israel, Russian Federation, Spain, Americas, e-sports has already eclipsed some of
and other countries; separate or categorized the biggest sporting events in the world [1]. It
protection for creative elements is provided in became difficult to ignore the commercial
Brazil, Denmark, Germany, Japan, USA, and potential of e-sports, and in 2017, the
other countries; video games are regarded as International Sports Committee (IOC) began to
audiovisual works in Kenya and the Republic of consider “competitive e-sports” as a sporting
Korea [22]. event. In 2018, Lausanne hosted the first e-sports
forum organized in cooperation between the IOC copyrights to gain a share of streamers income and
and the Global Association of International Sports to control the context in which their game is
Federations. shown [27]. There is a perception that freedom of
E-sports is defined as “an area of sport expression can and should be used in this context,
activities in which people develop and train as game streaming is already beneficial for IT
mental or physical abilities in the use of developers (or other copyright holders) as it
information and communication technologies” increases the demand for their game [27].
[24]. In addition, scientists note that escapism, Today, in this type of relationship, the laws of
acquiring knowledge about the games being countries justifiably give preference to the rights
played, novelty and e-sports athlete of copyright holders. According to all factors from
aggressiveness positively predict e-sports the fair use checklist (the purpose and character of
spectating frequency [25], i.e., even those aspects the use; the nature of the copyrighted work; the
make e-sports popular and open up new market amount or substantiality of the portion used; and
niches. the effect of the use on the potential market or
Taking into account the arguments from the value of the work) the streamers' positions are
previous paragraphs, e-sports is characterized by weak.
more ways of copyright protection than sports.
Another difference between sports and e-sports is 5.3. User-Generated Content
that copyright exists when an e-sports game is
created, whereas it does not apply to sport as such
The situation with user-generated content
[14]. There is a perception that the sports
performance of e-sports can be considered as remains insufficiently clarified. Many video
original expressions under copyright law, just like games encourage players to create and share so-
music, dance or theater [26]. At the same time, it called user-generated content, which can be a
legal minefield for all parties [8].
is doubtful that “law may recognize intellectual
Modern interactive online video games include
property in a virtual eSport” [14] when it comes
to scripted sport simulators. But certain tools for creating and developing new game
elements such as characters, levels and other
opportunities still remain – since e-sports can
protect the game format with copyright, and creative elements, in fact, they develop an entirely
regulation of the rules of the game may be less new category of creators whose legal status
important or even irrelevant [14]. At the same remains largely unclear [7]. Players must follow
time, the widespread use of the image of an athlete the rules of use of the game specified in the "end
as a leader of public opinion can place certain user license agreement" which in most cases
restrictions on the commercial aspects of leaves room for doubt, and IT developers should
take into account various situations in order to
copyright. This issue remains controversial.
prevent the distribution of illegal or inappropriate
Thus, copyright in e-sports generally primarily
includes the corresponding rights of IT developers content on their platforms [8].
(or other copyright holders) to sound recordings, All games are interactive processes, and
voices, sound effects, photographic images, players perceive the game as a creative process,
moving images, animations and texts, and which undermines the copyright of the IT creator,
comments. In the second place, the rights of while laws may not sufficiently protect both the
organizers and participants of a digital sports copyrights of creative players and authors of
event to the same objects and to broadcasting as video games [28].
well as to possible new creative works appear. The fact that only a specific expression of a
Otherwise, the relationship between e-sports computer program is copyrighted can be a
players and organizers will probably develop disadvantage, because even similar visual effects
similarly to well-known practices in real sports. by themselves sometimes cannot be proof of
copying [3]. The copyright holder retains the
rights to only one of the many ways of expression
5.2. Streaming and its derivatives. Some confusion arises here,
which includes concepts such as original work,
Streaming video games is live broadcasting fair use, derivative work, etc.
playing video games on the internet [27]. On the one hand, the resolution of this issue
Research shows that in recent years, game requires relevant courts decisions and
developers have been aggressively using their explanations. Although tools for protecting the
copyright of players and authors of interactive Lawsuits involving sports video games, for
games (or other copyright holders) are still example, have addressed issues such as the game's
developing, it is important to understand that here, compliance with copyright vesting requirements
as in most cases of streaming video games [28], and categorizing video game streams within the
the value of works is low. The same cannot be said context of copyright law [30]. Most of the
for e-sports, where the financial prospects are disputes between the creators of sports video
much higher. games are about violations of other laws (public
rights, false advertising, etc.). Although video
6. Relationships between Copyright games have already become part of the 21st
century media landscape, their protection under
Holders and Users of Video Games copyright law still raises difficult doctrinal issues
6.1. Copyright Infringement [28], some of which were described in the
previous paragraphs.
A thriving sector of the economy is bound to Intellectual property law, especially copyright
be faced with various types of law infringements. law, is an ever-expanding doctrine [27]. But such
In addition, game developers are increasingly a complex copyright system means that courts
using a complex mixture of legal and illegal tools have to conduct more detailed analysis, which in
to regulate creative activities [1]. Among the most turn leads to higher costs for litigating parties [7].
common infringements, the following should be The revenue that independent developers make
noted [8; 10; 12]: is limited [29], but in the fast-growing mobile
One-for-one code copying. games market, such IT developers have weight.
Imitation of game mechanics or remixture The mobile games market is full of small and
of multiple games’ mechanics. medium-sized companies that use video games
for commercial purposes without obtaining all the
Changing the graphics of an existing
relevant copyright and related rights [7]. An
game (reskinning), while retaining the original
illustrative example is the removal of Flappy Bird
expression and actual gameplay.
from the Apple App Store, after which sixty
Modifying other elements of an existing
Flappy Bird clone applications were sent every
game, while preserving certain original
day for approval in the App Store [29].
elements.
Although some countries are implementing
Hiding secret content (Easter eggs) in a projects to simplify the handling of copyright
video game by its developers which is taken infringement claims, in general, the high costs of
from another copyrighted work. litigation processes are not always within the
These tendencies are taking place at the reach of SMEs. Legislation should distinguish
present stage of development of IT. Among a legitimate inspiration and plagiarism [9] in order
digital society, infringements are more to serve all stakeholders. Although potential
widespread and more profitable for clone copyright infringement implies certain legal
developers, but proportionately more detrimental remedies, the following extralegal norms of
to original developers [29]. fairness, which minimize the need for strong legal
interventions, underlie content creation in the
6.2. Copyright Protection gaming context [1]:
Norms of competitive integrity prevalent
Lawsuit cases regarding copyright in video among video game players.
games are widely reported in the scientific Norms of wealth sharing arising out of
literature, but there is a lack of information communities of loyal consumers.
regarding lawsuit cases which consider Labor-based norms that allow gameplay
infringements in sports video games. streamers to claim ownership over their
The main implications of most common recorded stream.
lawsuits in video games are identifying significant Internal copyright management systems [31],
similarities between works, balancing between which could include legal, educational, and
freedom of speech, expression, creativity and specific aspects (such as IT applications in
copyright, testing genre standards (which are not licenses distribution or in monetization of
protected by copyright), and publicly available copyright assets, etc.), are useful to SMEs
noncopyrightable subject matter in a particular especially at the stage of development of
work.
technological elements of digital systems that are and may be considered as a complex of other
essentially copyrightable subject matter. An copyrights.
effective legal instrument for the protection of Jurisdictions of countries in whose legislation
intellectual property rights is Directive the video games are not defined as an object of
2004/48/EC of the European Parliament and of copyright and where there are no relevant court
the Council from April 29, 2004 on the cases run the risk of facing a chaos of
enforcement of intellectual property rights, which unpredictable court decisions. At the same time, it
provides effective means of presenting, obtaining is important to note that nowadays information on
and preserving evidence that is of prime generalized approaches in court cases regarding
importance in intellectual property lawsuits, sports video games is scarce, as well as on court
which allows plaintiffs to claim the physical cases regarding e-sports, streaming sports video
withdrawal of infringing goods and/or materials games, and user-generated content. These
and tools used in the production and/or questions are a prospect for further research.
distribution of those goods and/or materials, an
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