Paper Abstract (2014)


In the interest of sharing for future years (hope it helps!), here is an abstract for the key issue explored in my 2014 VGL paper, “A Canadian Legal Framework for Charity Video Game Marathons”.

Charity video game marathons (“marathons”) are events not well known outside the community of staunch gamers. Gamers play video games back-to-back relay style, streaming the event online, to raise money for charity donated by viewers around the world. This paper considers the legal analysis of such marathons in a Canadian context: an event with Canadian participants gathering at a Canadian location to play for a Canadian charity.

The primary issue in this paper is whether participants and organizers (“attendees”) at such events are in breach of copyright. Section 3(1)(f) of the Copyright Act defines copyright to include the sole right to communicate via telecommunication, to the public, a literary work (including a computer program like a video game). Because viewers of online marathons typically watch the stream live and make no recordings of it, such ephemeral streams are an example of telecommunication: ESA v SOCAN, 2012 SCC 34. As such, the attendees of marathons are prima facie in violation of copyright.

However, it may be possible to save the attendees from liability by considering s. 29.21 of the Copyright Act, which sets out a four-point test for whether a derivative work not in violation of copyright has been created:

Subsections (b) and (c) of the test are likely trivially met, provided that attendees mention the name of the game they are playing, and that they are playing a non-infringing copy of the game.

Subsection (d) requires no substantial adverse effect (e.g., financial) on the exploitation of the game. It is likely met because the performances of games at marathons are typically unique, glitchy, and have added commentary and antics. These unique performances likely drives increased interest in, and sales of, the games: see SOCAN v Bell Canada, 2012 SCC 36.

Subsection (a) requires that any purported infringement be non-commercial. This subsection may be met by considering Ben and Esther Dayson Charitable Foundation v British Columbia, (1996) 140 DLR (4th) 763 (BCSC). In Dayson, actions that further the goals of a charitable organization were found themselves to be charitable and thus non-commercial.

With all four points of the s. 29.21 test potentially met, which would demonstrate that performances of games at marathons are derivative works of the original copyright games, it may be possible to save marathon attendees from liability for copyright infringement.

However, we propose that a clarification to the legal framework of s. 29.21 is required. Currently, only non-commercial purported infringement is protected. It is not the expected legal outcome that non-charity video game streamers who earn only small amounts of money on a streaming service, e.g., on through infrequent streaming via the Twitch Partnership Program, should be considered in breach of copyright for broadcasting copyright game images and audio. Such small earnings, while not strictly non-commercial, are incidental for many streamers to the hobby of streaming. A modern approach that considers the growing hobby of streaming video games online, a built-in feature on the PlayStation 4, is required.

Best of luck to future years in VGL. Cheers!