Use of excerpts of videogames and eSports competitions without the right holder’s consent: is it fair use (or the Princess is in another castle)?

Publications sharing tips on how to complete videogames and maximise bonuses might increase with the expansion of the eSport competitions. The same applies to platforms streaming videogames alone or together with eSport actions of the various players. Yet are these activities possible without the right holders’ consent?

Under Italian law, videogames are protected as a whole as copyright works like movies, whilst their frames could be protected as simple photographies (with protection lasting 20 years from their publication). Following a different opinion, videogame frames could be excluded from protection, as they may considered similar to documents, as provided by Art. 87, last sentence of the Italian Copyright Law (ICL).

Assuming that videogames excerpts are protectable subject matter, Article 70, Paragraph 1 ICL provides a “free use” exception for the use of part of a copyrighted work for the purpose of criticism, comment, news reporting, teaching or research, within the limits justified by such purpose and provided that such an use does not interfere with the economic exploitation of the work.

Article 70, Paragraph 2, ICL provides for the possibility of making available images or music free of charge over the Internet, provided they are in “low resolution” and only if use of these works is not for profit. Also in this case, use is subject to certain conditions: the didactic or scientific purpose, the degradation of published works and the absence of profit in sharing such contents.

In interpreting Article 70, Paragraph 1, ICL the Italian Supreme Court observed that the quotation of a work can be considered lawful only when it is directed to the making of a second autonomous work that embeds the original one. Further, the quotation must be limited to the extent justified by the relevant purposes and not be in competition with all the possible markets of exploitation of the original work.

It is questionable whether this last principle would also apply to the concept of “use made for profit” relevant for the application of Article 70, Paragraph 2 ICL. Italian case-law is divided on the definition of “use made for profit”. Traditionally, the execution of works within a profit-making activity is considered as an economic use reserved to the author in the off-line world, regardless of the actual profit achieved. Yet, if we apply this principle to the online context, the ubiquitous advertising business model would always determine the existence of commercial activity, even if the actual profit is limited.

Bearing the above principles in mind and in the absence of a an established definition of “use made for profit”, a first obstacle to the application of the above mentioned fair use exceptions to videogame publications might be the fact that videogame single frames could be considered as autonomous copyright works, therefore, it would not be possible to limit reproduction to “parts of a copyrighted works”, as requested by Article 70, Paragraph 1, ICL.

Secondly, it could be argued that the making of a book including videogame frames and literary parts explaining how to earn bonuses and complete the most difficult levels amounts to an autonomous copyright work. The same could be held regarding most broadcasters that are streaming the game play with commentaries and in most cases they interact with their viewers. In addition, in both instances, the purpose to compare the best strategies of play might well amount to a “discussion purpose”.

However, the aim of a publisher is clearly commercial and might ultimately interfere with a possible secondary market that videogame producers could be willing to enter. Similarly, the broadcaster’s use is to gain a viewership over streaming platforms and in many cases earn money based on his popularity and through the exercise of a continuous and organized activity.

It is still to be observed that the effect of the broadcast or the book on the potential market is unlikely to diminish the demand for the videogame. On the contrary, the broadcast gives the viewer a taste of the game, increase exposure, and is likely to drive up demand for the game. But what if videogame producers decide to control the secondary market of their own products and set up an official book on how to complete the game or create a branded entertainment platform of tournaments over their own games? There might be room to argue copyright infringement, at least on the ground that the contested use is in competition with all the possible markets of exploitation of the original work and that such an use is made for profit, given that certain players are considered now as videogame stars and sector professionals, who make more than a living over their “gaming” activities. However, the issue shall be considered more broadly from an antitrust perspective, at least as far as the copyright holder, who wishes to control the secondary market, is in a dominant position.

Conclusively, publishers and platforms who want to rely on fair use exceptions over videogames under current Italian law are likely to hear from courts “Thank You Mario! But our Princess is in another castle!”.