A question of (e)Sports: an answer from copyright
by Amy Thomas
With a void in live sport events as a result of the COVID 19 pandemic, eSports (a.k.a. competitive video gaming) have been catapulted into the spotlight. The rapid growth and relative youth of the industry mean that regulatory discussions are imminent, but many questions remain about the nature of eSports: are they ‘just’ a video game? A sport? A mix of both? As an industry fundamentally underlain with a creative work, copyright has a high stake in answering this question.
This article uses copyright as an analytical tool to better conceptualise eSports, offering an overview of copyright subject-matter from a UK perspective, both in the statutory provisions of the CDPA and judicial decisions (particularly Nova Productions v Mazooma Games and FA Premiere League v QC Leisure). Through the prism of three of the main eSports actors – the game rightsholder, tournament organiser and professional player – the article reveals a system of unprecedented downstream control facilitated by copyright ownership. This is at odds with the generally accepted conclusion that sports as such cannot be protected by copyright.
This article provokes the conceptualisation of eSports as ‘more than just a game’; instead, it should be understood as a sport which is fundamentally owned. As a result, copyright can be used to legitimate the governance of a game that impacts people’s social, economic and legal realities. Such a conclusion is sub-optimal if it does not take a holistic appreciation of the other eSports actors who contribute their skill and creativity to this industry. But if copyright is part of the problem of downstream control, perhaps it may also hold a solution. To explore this further, the article makes comparative reference to South Korea as the genesis and mecca of eSports, offering an alternative response to the boundaries of rightsholder control in this new industry.
[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon]