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Streaming 101: The Intellectual Property Side

[Booming Announcer Voice]: Are you interested in streaming games? Have you been streaming for a while and want to take it more professionally? Or do you simply want to learn more about the legalities of streaming? Well, you’ve come to the right place.

Streaming is one of the most widely-consumed forms of entertainment these days. On Twitch alone, there are on average 1.4 million viewers watching at any given time. In addition to Twitch, other platforms like Mixer and YouTube are growing their user base every day.

Streaming has become so ingrained as a media offering that many don’t even consider it to be an infringement of copyright. But technically, it is. Fortunately, there are reasons why this industry hasn’t been shut down by the copyright police. Regardless of your experience level or preferred platform, it’s always good to stream safely and legally. Many issues aren’t obvious until you’re hit with a Digital Millennium Copyright Act, or DMCA, takedown notice. So, here’s a quick primer on ways to avoid those and other infringement issues.

What is copyright, exactly?

In Canada, copyright protects an original expression of an idea, not the idea itself. The distinction between “idea” and “expression” is fundamental to copyright law. Ideas are universal, finite and shouldn’t be monopolized, whereas expressions are infinite, limited only by one’s creativity, and should be rewarded. Think of it this way: the idea of a boy with magic powers who goes to wizardry and witchcraft school and confronts his mortal enemy on a yearly basis does not attract copyright protection; but, how that idea is expressed in the Harry Potter novels is protected.

Copyright generally covers literary, dramatic, musical, and artistic works and exists as soon as the work is created (no registration required). The author of the work is by default the first owner. This author/owner relationship is particularly important for determining who owns copyright in works that are created in an employment context.

Interestingly, the US has a further statutory requirement that the work must be fixed in a tangible medium in order to attract copyright protection. Canada does not have the same requirement. The “fixation” requirement makes for an interesting debate when it comes to live streaming, but is also moot since we have VODs, YouTube uploads, and other ways to fixate a stream in the ether.

So, now that we know what copyright is, here are some places where copyright might exist in streams:[

The Game Itself

So many parts of a game are protected by copyright: the art and visuals, audio, story, scripting, underlying code, etc. The developers/studios own that copyright, but in most cases grant an implied license to content creators to play their games on the internet. (An “implied license” basically means that the developers know their games are being broadcast without their permission, but are allowing that behaviour to continue.)

There’s a quid pro quo here. Having streamers show off your game is an excellent marketing strategy. It fosters a fanbase because viewers are more likely to buy a game for themselves if they see their favourite streamer play and enjoy it. In exchange, streamers have something to play on their stream and produce content with. Everybody wins.

Music

There are two main sources of music in streams, both of which are (you guessed it) protected by copyright. First, there’s in-game music. There’s not much you can do to avoid that (although some games kindly offer “streamer modes” that disable copyrighted in-game music – be sure to check for that option). Then, there’s music that streamers will have playing in the background.

Unfortunately, having any kind of music in your stream exposes you to copyright troubles. On Twitch, it ruins your VOD (the video-on-demand that is archived when your stream ends) because Twitch will automatically mute videos in 30-minute chunks if it detects unauthorized music. And on YouTube, it may prevent you from monetizing your video. Happily, there are libraries of royalty-free music at your disposable if you want to dungeon crawl to some sweet tunes.

Streamer’s Content

This covers pretty much everything else you see on a stream: the overlays, alerts, streamer-specific emotes, and any commentary made by the streamer. All of these parts form a complete package of copyright owned by the streamer or their affiliates. However, it’s important to remember that the underlying game and music are still owned by someone else.

What happens if you accidentally infringe?

It depends on the platform, and in some cases, on the developer/publisher. Most publishers understand that streaming is a part of the gaming ecosystem and have embraced the symbiotic relationship with streamers. But if they take legal action and send a DMCA takedown notice, here’s what you can expect (FYI – even though the DMCA is a US law, it affects all content on Twitch, Mixer and YouTube, as they are US companies).

Generally, the process is as follows: the copyright owner sends the streamer a DMCA notice, the streaming service immediately takes down the offending video and issues a copyright infringement notice. The streamer either accepts the takedown or sends a counter notice explaining why the video is not infringing (usually by providing proof of a valid license or giving a fair use/fair dealing defence), and if that explanation is accepted, the video is restored. There are also ContentID takedowns on YouTube, but they aren’t as severe.

A single DMCA notice is not fatal, but multiple offences may land you a suspension, or even a perma-ban, of your account. A suspension prevents you from picking up new subs and receiving ad revenue and donations, but a ban will cause you to lose your archive and all your subscribers (yikes!). The scary part is that multiple offences can be happenstance: let’s say you have a four-part series about the same game and the game itself is what triggers the DMCA notice. All four videos will count as a separate offence and instantly designate you a multiple offender. Thankfully, this doesn’t happen very often because as I said, game companies don’t usually issue takedowns of their games.

Hopefully you never have to experience a DMCA takedown, channel ban, or copyright infringement lawsuit. But stuff happens. Good news is that your friendly neighbourhood gamer is here to help. If you have a copyright issue, as an owner or a user, or want more information, feel free to drop a line.





Alexandria Chun

Alex is a Lawyer at Spark LLP. Having joined the firm as its first articling student, Alex spearheads the firm’s video game and esports practice. 

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