By Joseph Lau

Where material from video games is used in ‘Let’s Plays’ (livestreamed or pre-recorded playthroughs of video games) without authorisation from those holding copyright in it (referred to herein as ‘developers’), the court presiding over the infringement claim is faced with complex questions relating to the conflict of laws. In my article ‘(Let’s) Playing by the Rules: A Choice of Law Rule for Communication of Copyright Material from Video Games to the Public, through Let’s Plays’ published in the Computer Law & Security Review, I flesh out the difficulties a court presiding over such claims may encounter when tackling that issue. I also propose a choice of law rule it can use to defuse those difficulties.

Whether indirectly (through conferring protection over their constituent elements, as opposed to directly protecting video games themselves, as the sum of their parts) or both directly and indirectly (depending on which jurisdiction’s laws are under consideration), video games enjoy copyright protection under various jurisdictions’ laws. Such protection is enjoyed automatically on satisfying the conditions for subsistence of copyright specified by a jurisdiction’s copyright legislation (Asensio, para 4.02). Should these be the same under the laws of different jurisdictions (e.g., they all specify that the party which reduces something to a material form enjoys copyright over it), then by a single act in relation to video game content (in this case, reducing it to a material form), a developer will acquire several different copyrights over it, each conferred by the laws of a different jurisdiction. This is qualified by the ‘territoriality principle’, that a jurisdiction’s copyright law only applies inside it (Matulionyte, 13). Where copyright material from a game is used without authorisation in State A, only the developer’s copyright over that material under State A’s laws can therefore be infringed, notwithstanding the fact that the developer may simultaneously hold copyright over that material under the laws of other jurisdictions.

But when copyright material from games is disseminated without authorisation over the internet (e.g., by being incorporated into Let’s Plays streamed from YouTube or Twitch.tv), which has a potentially global reach, the allegedly infringing conduct cannot be isolated to one jurisdiction. Instead, each of the separate national copyrights a developer holds over that material may have been infringed, in every jurisdiction with internet access. Should the developer seek to vindicate all its copyrights in a single action, the forum court must then contend with the following issues:

a) What law governs claims that local copyrights (i.e., those conferred by the law of the forum) are infringed outside it?

b) What law governs claims that foreign copyrights (i.e., those conferred by the law of jurisdictions besides the forum) are infringed in the forum? (whether the forum court is within a civil or common law jurisdiction, it is increasingly likely that it will have jurisdiction over such claims).

In (a), the territoriality principle precludes application of the lex fori (law of the jurisdiction where the request for protection is decided upon (Koumantos, ‘Private International Law and the Berne Convention’ (1988) 10 Copyright 415, 426), abbreviated herein as ‘LF’). In (b), that principle precludes the forum court from applying any of the laws under which the developer enjoys its foreign copyrights. This begs the question of what law(s) the forum court should use to decide the issue of infringement in either scenario, a question which is arguably not resolved by either article 5(2) of the Berne Convention, or any rule of the LF which treats the allegedly infringing conduct as having occurred within a particular jurisdiction.

For reasons discussed in my article, in this scenario the forum court should use the following choice of law rules:

a) Where the developer was incorporated in a Berne Union Member (or a member of the World Trade Organization, membership of which requires adherence to Berne minima (Ricketson and Ginsburg, para 20.32)), the issue of infringement should be governed by the law of the place of the developer’s incorporation, as a *proxy for laws qualifying as the lex loci protectionis (law of the country where protection is sought (Fawcett and Torremans, para 12.22), abbreviated herein as the ‘LLP’);

*This addresses the ‘multiplicity problem’ generated by choice of law rules pointing towards the LLP (see Trimble, 341).

b) However, where any party can prove specific differences between the law of the place of the developer’s incorporation and law(s) qualifying as the LLP (called State A’s law), in aspects essential for deciding whether infringement has occurred, **the forum court must issue separate rulings as to whether:

(i) copyrights under State A’s laws are infringed; and

(ii) copyrights under laws of States other than State A are infringed.

** This ensures that State A’s public policy choices regarding the availability of information within it are respected (see Austin, 580).

c) As a mandatory rule of the LF, regardless of what law(s) govern the issue of infringement under (a) and (b), liability for infringement will only be established if the allegedly infringing activities had a substantial impact upon the developer’s interests in the State(s) for which protection is sought.

As observed by Castel: ‘Modern conditions and technology have given tort liability in the conflict of laws a prominence which can only increase with the years to come. It is…of vital importance that old concepts be reexamined in…light of our new ways of life…to reflect contemporary society…to [blindly] adhere to precedent…in light of the ever increasing rate of change in our society is tantamount to legal suicide. If the law lags behind, unbearable social stresses will develop. In the field of foreign torts, the courts should strive to update outmoded common law conflicts rules.’ Hopefully the above proposal will enable courts presiding over infringement disputes based on Let’s Plays to do just that.

Keywords:  Copyright, Internet, Let’s Plays, Video Games, Private International Law

AUTHOR INFORMATION

Mr Joseph Lau is a Sheridan Fellow at NUS Law and Faculty Advisor for Alt+Law, a student interest group focused on legal-tech.

Email:  lawlcyj@nus.edu.sg

LinkedIn: www.linkedin.com/in/joseph-lau-276873145