THE CRITICAL ANALYSIS OF DISCOURSE ON PROTECTION OF ESPORTS UNDER THE COPYRIGHT LAW - RAGHAV SEHGAL

INTRODUCTION

One of the most astounding and astonishing developments associated with the recent proliferation and production of mass-market computer technology has been the rise of video gaming.[1] The result of this development is the growth of a new entertainment sector, with revenues that have the potential to exceed that of the established movie and music industry.[2] The share of revenues generated by e-sports in overall revenues generated by video gaming is formidable. e-sport is a competition between people through a computer or video games of different genres such as sports stimulation, real-time strategy games, etc.[3] The revenues generated by esports has been growing continuously because of the boom in the number of e-sports players and the incentives to promote its spread such as e-sports tournaments, increased amount on R&D of e-sports platforms, sponsorships, etc. The global revenue amounted to a total of approximately $324 million in 2016, it expanded to around $696 million in 2017 and is expected to grow to $2.174 billion by 2023 indicating the jackpot hit by the e-sports gaming industry, i.e., growth due to increased internet access and incentives to its growth and development.[4] E-sports have their own set of issues as well. The most prominent issue among these issues is the issue of intellectual property rights. The main reasons behind this issue are the widespread popularity of e-sports and the involvement of human intellect in the creation of e-sports leading to claims of possessory rights over e-sports

ESPORTS AND INTELLECTUAL PROPERTY RIGHTS

Online and video games involve long hours of programming, source code development, graphic designing, etc. during their creation. As the creation of e-sports involves both human efforts and human intellect, legal rights are raised over the possession of these original works. In this regard, Copyright is believed to be the most important protection available for online

and video games.[1] Copyright refers to the exclusive and special legal right granted to the creator of original work and provides for the exclusive right to produce, publish or perform an original artistic, musical, or dramatic work. In the case of e-sports, some aspects such as actual artwork of the game and the audiovisual work for which creator/author can register for copyright. Apart from copyright, patent and trademarks also play an important role in protecting the legal rights of the creator, author of these works. Trademarks act as an identifier of the source of the origin of the game and protect the goodwill and the reputation associated with the game as a brand.[2] Patents, on the other hand, protect inventions from being copied such as a new and beneficial process, machines, composition of matter, etc. With the help of a Patent, the owner can negotiate the license terms with other competitors and can also sue for monetary damages or injunction in case of infringement.[3] In a nutshell, we can say that these Intellectual property rights help the right-holders sue infringers for unauthorized use such as illegal software downloading, unauthorized use of games by video streamers and tournament organizers.

The international intellectual property protection of technological works is a topic that has gained immense significance in modern times particularly because of the advent of cheap and widely accessible internet and broadband connections, the violation of copyright by foreign actors is a comparatively nascent problem, but still a rampant problem.[4] The game StarCraftII is indicative of this issue. StarCraftII is a South Korean online game. It would have been impossible for StarCraft II’s game files to be downloaded 2.23 Million times because of its huge file size, that is, 7.19 gigabytes.[5] This indicates illegal downloading of the gaming software in a comparatively smaller size through the means of file compression and copyright violation.

THE SCHEMES AND INITIATIVES TO PROTECT INTELLECTUAL PROPERTY AT GLOBAL LEVEL

Several sources of public international law make up the current world intellectual property protection scheme.[1] It is the United Nations (UN) that administers and manages the major chunk of existing international intellectual property treaties through its agency the World Intellectual Property Organization (WIPO). WIPO was established in 1967 in order to protect intellectual property at the global level and it administers more than twenty different treaties related to intellectual property.[2] The Berne Convention for protection of Literary and Artistic Works, created in 1886, is the primary treaty under WIPO administration and it basically deals with copyright issues.[3] The Berne Convention aims to protect a wide range of intellectual property. But Berne Convention was not successful. The main reason behind the failure of this convention is its outdated nature because it was last amended in 1979 and hence it does not extend to esports and this failure seems quite fatal in an era where personal computer use is widespread. Another important treaty is the WIPO Copyright Treaty (WCT), which was created in 1996 and came into force in 2002. This treaty supplements the Berne Convention and was basically created to introduce new international rules and clarify the interpretation of certain rules to make them more applicable and utilitarian in the contemporary world with new social, cultural, and technological advancements.[4] The WCT extends the term ‘literary work’ to apply to computer software and thus covers computer software used in esports.[5] Apart from these, there is the TRIPPS Agreement of 1994, KORUS-FTA of 2007, etc.

CONCLUSION AND SUGGESTIONS

From the above discussion, it is clear that the presence of esports in the 21st-century media landscape is quite widespread and there is complexity regarding the protection of esports under copyright law. The concept of esports is a recent development and thus, requires immediate attention. Even though organizations such as WIPO and conventions such as Berne Convention and WCT have been established with the aim of protecting the intellectual property rights of esports developers and various stakeholders, but still, there is an urgent need to take measures to resolve this issue. These measures include appropriate precautionary measures to be taken by esports tournament organizers, measures to ensure that the stakeholders obtain the necessary usage rights from the game publishers and registered eGamers and adhering to the licensing provisions, etc.[6] There is a need to protect this new subject matter and by corollary, new challenges as well.

[1] Dan L. Burk, Owning E-sports: Proprietary Rights In Professional Computer Gaming, 161 UNIV. OF PENNSYLVANIA L. REV. 1535, 1535-1578 (2013), https://www.jstor.org/stable/23527812.

[1] APHRA KERR, THE BUSINESS AND CULTURE OF DIGITAL GAME 47-52 (Sage Publications 2009).

[1] Karthik Venkataraman, E-sports and underlying Intellectual Property, BLOG.IPLEADERS (Feb. 13, 2021, 6:29 P.M.) https://blog.ipleaders.in/e-sports-underlying-intellectual-property/.

[1] EUROPEAN IP HELPDESK, https://www.iprhelpdesk.eu/blog/ip-and-esports (last visited).

[1] Essenese Obhan & Mehak Dhingra, India: Get Your Game On: Esports And IP In India, MONDAQ (Oct. 7, 2020), https://www.mondaq.com/india/trademark/992058/get-your-game-on-esports-and-ip-in-india#:~:text=Copyright%3A%20Copyright%20is%20believed%20to,for%20online%20and%20video%20games.&text=Some%20of%20the%20aspects%20of,code%20as%20a%20literary%20work.

[1] Id.

[1] Id.

[1] Sean Comerford, International Intellectual Property Rights and the Future of Global “E-Sports”, 37 BROOKLYN J. OF INT’L L. 623, 633-635 (2012), https://brooklynworks.brooklaw.edu/bjil/vol37/iss2/7.

[1] Phil Kollar, StarCraft Pirated 2.3 Million Times, GAMEINFORMER (Nov. 15, 2010), http://www.gameinformer.com/b/news/archive/2010/11/15/starcraft-ii-pirated-over-2-3-million-times.aspx. [1] COMEFORD, supra note 8, at 634. [2] What is WIPO?, WORLD INTELL PROP. ORG. (WIPO), https://www.wipo.int/about-wipo/en/ (last visited Feb. 14, 2021). [3] COMEFORD, supra note 8, at 635. [4] WIPO Copyright Treaty, 1996, pmbl. para. 2. [5] Id., art. 4. [6] OBHAN, supra note 5.