Whose “Court” is the (Virtual) Ball in?
The Indian Government, on 27th December 2022, recognised e-sports as a mainstream sport and as a part of a 'multisport' event. The Ministry of Sports and Youth Affairs has now taken e-sports under its wing. E-Sports is used in relation to organised and competitive video game events. The premise for its inclusion as a sport can be attributed to the athletes' extensive use of physical and mental faculties. However, ownership of mainstream sports like football and basketball cannot be conferred upon a single individual for various reasons, including, perhaps, a lack of attributability to a single origin. In video games, however, an entire host of natural or legal persons can be said to hold ownership rights to the game itself or its individual components. The role of intellectual property in e-sports pertains not merely to ownership claims but also to advertisements and licensing agreements that permit monetisation by stakeholders. It is important to note that any video game, regardless of the possibility that it is merely a virtual simulation of a traditional sporting activity, can be an e-sport. The following discourse explains the various types of IP in light of the same.
Imagine a video game to resemble a cake with multiple layers. There is an initial software or game code layer atop which sound, and graphic elements rest. These elements can include images, music, animations, and text. It is reasonable to conclude that each of these elements is protectable by IP. At first glance, copyright appears to be the largest category under which most game elements fall. However, upon closer examination, different forms of IP overlap to provide video games with the most appropriate protection strategy, such as trademarks, patents, celebrity and publicity rights, trade secrets, and design protection. There is almost a "web" of overlapping agreements between stakeholders to create a complex IP ecosystem.
To understand this web of agreements, we must remember that video game use agreements are based on inherent rules that reflect the game developer's design decisions. It is only logical that these rules cannot be altered without the authorisation of the game developer. However, exceptions have arisen in the form of “video game mods”, which refers to modification of certain aspects of a video game by players or fans. Mods can vastly influence the interest in and the replay value of games. This could mean that players can modify how a game looks or behaves, in the process, perhaps creating another game within the game that is being “modded”. For instance, a player can replicate the game “Mario Kart” using Minecraft. Would this not constitute a derivative work in the sense that “Minecraft Mario Kart” substantially draws from the Original Mario Kart game? The contours of ownership in such cases appear to be unclear.
Fortnite and Among Us, in a collaboration in June 2022, developed a mod that allows players to play Among Us within Fortnite. This was preceded by Fortnite’s inclusion of a mod that resembled Among Us without InnerSloth's permission, enough for regular players to point out similarities. Similarly, Fortnite added a “Battle Royale” mod in 2017 that allegedly resembled PUBG’s Battle Royale; however, the similarities between the two games could not be said to be replicas because “Battle Royale” itself was on the thin line that rendered it a genre rather than being exclusive to PUBG owing to an element of transformativeness, although it must be noted that PUBG heralded the concept of “Battle Royale” games.
Further, a licence agreement is typically employed in using a video game in a competitive context. The game publisher may grant such licences to permit their use by a tournament organiser. This organiser may be the publisher herself, or a third party, who may impose their own rules regarding the use of the game. There are, however, numerous other parties that hold different IP rights and comprise e-sports stakeholders. Like any other form of infringement, any contravention of the above-discussed stakeholders' rules is likely to result in punishment of varying degrees. The extent of the punishment may further depend on whether the tournament is an event by itself or a part of a "league", which adds another set of rules that players or users ought to be aware of.
Organisers monetise their rights (whether they are the owner's rights or rights that have been licensed) through brand sponsorships and the grant of broadcasting or streaming rights to content platforms like Discord or Twitch. These tie-ups are often exclusive. Ticket sales also generate revenue if the tournament is physical; coupled with the sale of physical and digital merchandise, profit generation is substantial. Note that sponsorship agreements, broadcasting agreements, and merchandising agreements are all IP relationships. Players, who could be individuals or a part of a team, may have their event or brand sponsors. They own or control rights over their pictures and the audience. Even the audience, if viewing the event through platforms like Discord, have their IP rights over certain content created by them, the ambit of which the organiser's licence agreements regulate.
In India, game developers fall under the definition of an "Author". Section 2(d)(vi) of the Indian Copyright Act, 1957 (the "Act") defines an author as any individual who causes to be created a computer-generated literary, dramatic, musical, or artistic work. Thus, the producer or the publisher will be vested with the title of the "Author" as long as they have caused the game to be created, even if the constituent creative contributions have come from employees or independent contractors (works-for-hire). Chapter IV of the Act, which deals with the rights arising from copyright ownership, has set down that in "certain cases", persons who arranged relevant elements to facilitate the creation of the work shall be its author and, thus, the first owner of the copyright in the work. "Certain cases" could mean, for example, employment by the proprietor of a newspaper, magazine, or any other publication under an apprenticeship or service contract.
It is a common phenomenon in the gaming world for famous players to come up with gaming moves that possess an element of individuality attributable solely to their “persona” to make the game more enjoyable (this could entail a special combination of punches, for example). This is similar to “signature moves” of famous wrestlers or cricketers. In sports like wrestling or cricket, trademark rights over the move is a ponderable protection mechanism; however the plausibility of protecting signature moves in video games remains uncharted territory.
In the absence of a contract of employment, the development team, who constitute the original creators, by creating the basic idea and transforming it into the game that has been published, would constitute "Authors" under the Act and, as a result, would be entitled to authorship rights (Section 17 of the Act). As discussed above, for any rights licensed, in the absence of having ascertained duration or territorial scope, the term of the assignment will be limited to five years in India. As globalisation pervades video games, due credit for players' contributions will continue getting more complex to delineate.
An additional consideration is “format rights” of the video game tournament or show (a subset of broadcasting rights). Formats refer to the look and feel of streamed content. It comprises the structures that persist in every episode of the content/ programme. An example of the same is observed in the “Big Brother” (Bigg Boss in India) series, whose format is licensed to networks in different countries to be adapted to national preferences. Video game tournaments are streamed in a similar way. Formatting rights include the right to create and exploit/ authorise the creation or exploitation of media based on themes, concepts or situations that resemble each other. While some amount of protection has been afforded to formats through neighbouring rights and precedents, Indian law is yet to set down concrete standards as to what constitutes substantial similarity between two allegedly similar formats.
Gaming law in India is in the process of innovation; its legal treatment derives its justifications from business practice and is loosely based on the technicalities of each case. Indian courts are yet to regulate the murkiness surrounding the regulation of IP in esports through precedents. If not courts, any statutory sporting authority will have to pave the way, considering that the Government has recently recognised e-sports under the definition of a sport. If left unregulated, developer or publisher discretion will result in a monopoly. If consumers' interests are to be concurrently prioritised against publisher interests, India's IP laws will have to undergo radical adaptation to the complex layers of agreements surrounding video games and, ultimately, e-sports.