New consoles, new games, old copyright

By Rob Vienet, Jack Keleher
Intellectual Property Patents & Trade Marks

User-generated content at risk of copyright infringement 3 min read

The release of new video game consoles (including the PlayStation 5, Xbox Series X and the improved Nintendo Switch) will likely increase user-generated content – in both in-game creations and the volume of gameplay that is streamed within the wider gaming community alike.

Despite these recent developments, copyright law remains the same in Australia with respect to video games. This means users of video games and operators of streaming platforms are at risk of copyright infringement whenever they stream gameplay or upload gameplay without the consent of game developers or the protection of another relevant defence to copyright infringement.

Key takeaways

  • In Australia, copyright in a video game is typically owned by the video game developer.
  • Video game developers should closely monitor the market for any infringing activities.
  • Operators of streaming platforms should consider whether it is necessary to obtain an express licence from developers to authorise the streaming or uploading of gameplay.

Who in your organisation needs to know about this?

Marketing teams; legal counsel.

Developers develop, gamers game and infringers infringe

Who owns copyright in a traditional video game?

Copyright in a video game (including gameplay footage) is typically owned by the game developer. The principle originates from Galaxy Electronics Pty Ltd & Gottlieb Enterprises Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8 (the Sega Case) which held that the final product that the user interacted with, being the images that were reflected to the user when playing the game, was protected as a cinematograph film under the s 90 of the Copyright Act 1968 (Cth) (the Act).

Who owns copyright in a modern video game?

The game which was the subject of the Sega Case was 'Virtua Cop' – a shooter game released in 1994 by Sega. Since then, video games have significantly evolved so that some video games are heavily dependent on the user's decisions and inputs throughout the game. In this way (and unlike in the Sega case), modern games do not always follow a linear storyline. This raises a question as to whether it is still appropriate to classify gameplay footage of a modern video game as a cinematograph film which has its copyright owned by the game developer.

The position is further complicated by the development of user-generated content (UGC) in gameplay. For example, modern games sometimes allow users to create environments, characters and moves which can be shared with other users throughout the world. The game of 'Minecraft' is an obvious example – this being a game that is premised upon the user building their own virtual environment. In these circumstances, it is conceivable that users may wish to assert ownership of their creations within a video game as against the original video game developers.

Ultimately though, the Sega Case remains the current law unless and until the court reconsiders the position. This means that video game developers will continue to own the copyright in modern video games (including gameplay footage as a cinematograph film), notwithstanding the fact that a user's actions might vary the images presented on the screen.

Perhaps not all infringements are equal

In commercial reality, some activities are less likely to attract infringement proceedings than others. Many developers publish end-user licence agreements (EULAs) which clarify that the user is not buying the game, but rather, they are buying a non-exclusive licence to use the game for their own personal (and non-commercial) use. Users who generate significant revenue from the streaming of gameplay have greater exposure, and as a result, game developers have historically only taken action against those who use the video game for commercial purposes. Entities who do not commercially profit from streaming or uploading gameplay are potentially less exposed to infringement proceedings because in practice, these non-commercial activities act as free advertising for the video game itself. Perhaps for this reason, some game developers now actively encourage their users to create and upload their own content.

Actions you can take now

Video game developers should closely monitor the market for any infringing activities and operators of streaming platforms should consider whether it has sufficient permissions (for example, in EULAs) which enable it to authorise the streaming of gameplay.