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Disrupting the state of video game play

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Published Date: May 31, 2024

I have recently been exposed to the exploits of Mikey Turtle in Minecraft and Roblox minigames and experiences, but my exposure has been enough to lead me down the video game rabbit hole.

Video game content plays a significant role in digital entertainment and is lauded, and sometimes criticised, for its social and economic impact. Notable examples of its impact, include the rise and broadcast of eSports on media networks, the inspiration of fashionable ensembles in the geek chic genre, and influence on silver screen productions, including the likes of Resident Evil and Mortal Kombat.

My own kids have a keen interest in video games and frequently become immersed in viewing game videos by gamer personalities on YouTube. By and large, therefore, I am a salty consumer of video game content.

While quite the noob, what did strike me as interesting was the relationship between copyright and User-Generated Content (UGC) in gaming. Simply put, UGC is content created by gamers or players of a game, as opposed to creators or developers of games. This content may include maps, characters, and stories amongst other items and can go so far as to extend or alter the plot of a game and even improve the game.

Plainly stated, copyright protects creations of the mind that are original and reduced to material form and, in South Africa, that protection exists automatically on certain requirements being met. Generally, only the owner of the copyright in “the work” is entitled to reproduce or adapt it and exploit it commercially.

Video games are creative works subject to copyright protection and may incorporate different types of works, as defined in copyright legislation, including software, sound recordings and underlying character drawings. UGC is facilitated by editing tools made available by developers of games but, at its core, UGC is based on an existing copyright work and may at least be described as derivative in nature. It is also characteristic of the exercise of a gamer’s skill, which ironically, tends to be a measure of originality – a bedrock requirement for copyright protection.

Many popular video games have embraced UGC and owe their commercial success to this phenomenon, which is also referred to in the industry as modding. UGC has been supported because it encourages player loyalty or retention, fosters a sense of community amongst players and promises the development of high-quality content. UCG is not a novel concept, but it is ever evolving and can be a lucrative concept.

The question that naturally arises is, who owns the copyright to the UGC? This question, although not answered by South African courts, has arisen in part in other jurisdictions and ownership, extending to copyright, in the game content typically resides with the creator or developer of the game. The short answer in that context is that UGC was preconceived by developers whilst gamers have simply played the game. This is a restrictive view, and the creative input of gamers may not always be considered sufficient to stake a claim in the copyright to the UGC. Even in circumstances where gamers own the copyright to their UGC, that content is at least licensed to game developers and gamers may forego rights to exploit their copyright. In the South African context, a Court may similarly come to the conclusion that UGC remains the property of a game creator, if it best fits into the definition of a computer-generated work, because our legal regime decisively states that the author of a computer-generated work is the person who undertakes arrangements necessary for the creation of the work. Our law also adopts the default principle that the author is the owner of the copyright in a work.

Despite the legal constraints and implications of copyright, PC gaming thrives and further incites a culture of modding, which is at odds with the exclusivity that copyright is intended to protect.

The industry status quo can be distilled from the scenarios already mentioned. However, it appears that the Artificial Intelligence (AI) boom could revolutionise the gaming landscape. AI has existed in the gaming industry for many years, but the advent of Generative AI, being technology that can generate new content in response to prompts, perhaps means a change in gameplay.

Generative AI in the gaming industry could make the creation process more accessible and could, in turn, affect the value ascribed to UGC.

With this surge in creativity, one can’t help wondering whether there could be a shift in copyright ownership in UGC created with Generative AI tools and AI-powered PCs, and whether gamers may come to expect other rewards for their UGC.

Recent cases suggest that AI may disrupt the prevailing position. In the USA, it was confirmed that copyright protection cannot extend to the creations of non-human entities. In the EU, a Court in Prague recently issued a decision confirming that an AI created image could not be the subject of copyright protection because it was not created by a “natural person”. However, the Court did not entirely dismiss the notion that a natural person could be the owner of the copyright in such a work if sufficient instruction had been given to the AI. This aligns with the position in China, where a Court confirmed that an image created using generative AI was copyrightable and that the copyright vested in the owner of the AI, because the work in question embodied the authors subjective expression and was made based on their intellectual input.

The results suggest that UGC created with Generative AI tools could be the subject of copyright protection, in some jurisdictions, at least. Conversely, one could be on the receiving end of infringement suits, in circumstances where a game facilitates copyright infringement through use by a gamer of a Generative AI tool trained on other copyright-protected works. However, Courts will need to consider the specific facts and, in some cases, the level of human input or curation in the content creation to reach a decision.

A gamer’s position in relation to ownership and exploitation of copyright in UGC may, however, remain at a stalemate. Gaming is historically a less regulated industry and legislation may not develop as quickly as trends in technology. It is foreseeable therefore that game creators will stick to protecting their proprietary rights, as they always have, by way of contract- the ultimate bullet sponge. End User License Agreements and UGC policies accepted by gamers will likely continue to regulate their rights in relation to UGC, although, changes to these agreements, including some monetary reward for gamers for UGC may also be seen in time.

Howsoever the position evolves, asserting rights to creative works, especially works created by or with the assistance of Generative AI, is unique and presents interesting legal complexities that are best debuffed with legal assistance.

Kim Rampersadh
Partner | Trade Mark Attorney

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