This article examines the issue of copyright exhaustion for digitally distributed video games in the EU. In light of the case law of the CJEU and national courts, it applies to video games two relevant dichotomies – sale/licence and goods/services. Diving into the modern Games-as-a-Service (GaaS) trend, it argues that treating all transactions as sales and all games as goods poorly reflects the complexity of today's video game industry. The many uncertainties of the current legal framework and the impractical consequences of digital exhaustion could force the industry to change its distribution models in ways not necessarily beneficial to consumers. Thus, the applicability of exhaustion to digitally distributed games should be ruled out once and for all. Nonetheless, where copyright is unable to offer satisfactory solutions, consumer law may protect players vis-à-vis digital distribution platforms, while at the same time providing legal certainty to the industry.
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Alina Trapova and Emanuele Fava
In the last decade, significant review and change have been done regarding the taxation of profits from multinational companies. The OECD BEPS Action 1 is focused on granting additional taxing rights to jurisdictions where the customers of the service are located. This is because consumers add to the value creation process (prosumers), together with the company itself.
Many enterprises do not have a physical presence at market jurisdictions because of the worldwide digitalization of the business process. With distant sales, they avoid sufficient taxation at the source countries.
Multiple jurisdictions, businesses, and individuals provided various taxing rights allocation proposals. OECD considered some of them as possible ways to address the issue of under-taxation at market jurisdiction.
This article evaluates the applicability of the OECD analysis of the value creation to the video games industry under the angle of differences and similarities between single-player and multi-player video games with social networks. This work is focused on the differences related to user participation and network effects for the value creation process. It explores the importance of the user participation and network effects for the value creation process of single-player and multi-player video games, to find if that respective taxing rights allocation should be different for these types of video game. It also analyses main proposals on taxing rights allocation, their applicability to the industry, and if these proposals acknowledge the differences in value creation based on the network effects of the video game.
It was found that the existing proposals are not always consistent with the preparatory work on value creation analysis performed by the OECD and do not consider the named differences. The results of this work support the position that the proposals, including the most recent one, meet the existing urge for the taxing rights reallocation, but are mainly politically-driven and not always in line with the existing principles of international tax law.
Video game content has grown increasingly popular on internet service providers such as YouTube and Twitch. This genre of uploaded material includes the gameplay of internet users, in the form of pre-recorded ‘Let's Play’ videos, as well as livestreamed playthroughs. However, the application of current copyright law principles to these kinds of content is still a grey area. This legal uncertainty can be attributed to the absence of binding judicial precedent on whether video game Let's Plays and livestreams constitute copyright infringement or fair use. More recent legislative provisions intended to update copyright law for current digital technology provide little assistance, as their implementation by internet platforms has perpetuated a practice of favouring the interests of game developers over users who produce Let's Plays and livestreams. This article discusses the problems of applying existing copyright law to video game playthroughs uploaded online, as well as the drawbacks of the automated tools YouTube and Twitch have developed to manage these types of content in their systems. In order to address these issues, suggestions for copyright law reform will be explored. However, in the absence of imminent legislative amendments, I conclude that compulsory licensing arrangements, and making modifications to YouTube's and Twitch's content scanning tools are the most viable means of achieving a better balance between the interests of game developers, the internet platforms, and Let's Play creators and game streamers.
People's right to know, to hold opinions, right to access, to seek and receive information, as well as to disseminate and impart ideas, despite frontiers, are protected under all democratic nations' constitutional right of freedom of expression. This duty to inform and disseminate news is undoubtedly the responsibility vested with media as the fourth estate and as a watchdog thereby enabling it to exert due checks and monitors on the working of the nation. By this, it mandates a strong, independent and adequately resourced media to operate in order to serve the general public interest and to place and keep up high standards of journalism. With the changing notions of media and with the prevalence of social media and interactive entertainment platforms, where users write the content, edit the same and disseminate it to the public, the question arises if social media does indeed actually function as ‘media’ as envisioned by our constitutional drafters. Disseminating information accurately to the public is a sacrosanct duty and if such a duty gets affected, the edifice of democracy is devastated. From the traditional media having reliance on what had been circulated, it moved to a system where the ordinary citizen has the capability to manage media technologies and notify own stories creating trends more for a business purpose. This change as named as media-morphosis has also crushed the right to be informed accurately. Against this backdrop, this article addresses the rising frequency of disinformation ‒ occasionally indicated as ‘misinformation’ or ‘fake news’ in social media, inflamed by both states and non-state stakeholders, plus the diverse issues to which they perhaps are a causative part or key source. It also critically evaluates the obligation states have to enable a conducive environment for freedom of expression that comprise encouraging and defending diverse media however, simultaneously, to curtail any sort of misinformation being disseminated to its people. As is evident from the title of this article, the jurisprudential aspects of freedom of information vis-a-vis the freedom to disseminate are examined where the primary examination focus is on – if media that is used to keep a watchful eye on the dealings of government and act as a champion of the public's right to know, has departed from this constitutional duty with the emergence of social media. Moreover, the nexus between ‘contours of expression to disseminate the information’ and ‘extent of limitations as to such information dissemination’ will be analysed. To illustrate, Indian legal framework is used and applied. In its conclusion the author endeavours to question the unwarranted benefit social media enjoys as ‘intermediary’ and as ‘media’ thereby ponders if the current Indian legal framework is adequate to deal with the ramifications.
The UK's approach to copyright and its adoption of a closed list of categories of work has led to unforeseeable gaps in protection in video games and fails to recognize the intellectual creativity that has gone into various elements of a video game, such as in-game animation. However, the CJEU's decision in Cofemel (C-683/17) has sought to harmonize copyright in the EU and provides two simplified requirements for subsistence of copyright allowing for expansive protection and open ended categories of work. This decision broadens out copyright in a way which may fill in some of the gaps of protection for video games but at what cost? This article explores how Cofemel might impact the video games industry in practice, as well as the ways in which the UK courts might address Cofemel in light of its direct conflict with UK legislation at a critical political time where the UK is about to depart from the EU.
Danae Balcells Moline
The popular NBA 2K series include a facial recognition software that scans the user's face to generate a lookalike avatar. However, end user licence agreements provide for all intellectual property rights, including copyright, to be licensed or assigned to game publishers or developers. Consequently, the user may have no say whether an avatar with their facial features may be used, for instance in advertising for the game. In addition, the facial features stored in the game may be biometric data, and thus subject to strict data protection rules. This paper will analyse whether the avatar generated using a face scan is a copyrightable work of authorship. The analysis questions whether the face scan fits into different categories of works; photography, film and databases, including the sui generis photography and database rights. It concludes that copyright fails to protect the individual's facial features. Even so, the ownership clause in licence agreements on the one hand and the facial features as biometric data on the other further complicate the question of what the individual can assert as his own.