eSports, a discipline -still- in legal limbo?

August 2021

eSports is a discipline that has grown by leaps and bounds in recent years. With the continuous advance of technology and the creation of new social networks in which, for some time now, algorithms have been rewarding the audiovisual format, eSports have taken off at a significant pace.

The Spanish Video Games Association (AEVI, by its Spanish acronym) defines eSports as the name by which video game competitions structured through players, teams, leagues, publishers, organizers, broadcasters, sponsors and spectators are popularly known. According to the Association itself, this discipline can be played both amateur and professionally. Other names for eSports are “competitive gaming”, “organized play”, “egaming” or “pro graming”.

eSports is a generic term that refers to competitions and leagues for specific games, not a single form of gaming. In the same way that we do not compete in “sport” but in football, basketball, etc., we do not compete in eSports but in League of Legends, Call of Duty, FIFA, Rainbow Six, Siege, Gran Turismo Sport, Gears of War or Hearthstone” – AEVI.

As it is an online discipline, its audiovisual nature means that one of the most important aspects of its regulation is Intellectual Property, as several partners and, consequently, their corresponding rights, come into play.

Where is eSports currently regulated?

As of today, there is no specific “eSports Law” as such, however, our intuition tells us that the reality of such a regulation could come sooner rather than later. In the meantime, everything related to this industry is regulated according to the provisions of Royal Legislative Decree 1/1996, of 12 April, approving the revised text of the Intellectual Property Law (hereinafter, also IPL)[1]; and, in some aspects, according to the provisions of Organic Law 1/1982, of 5 May, on the civil protection of the right to honour, personal and family privacy and self-image, as far as image rights are concerned.

Notwithstanding the above, it should be recalled that, according to European case law, sporting events cannot be considered “works” because the matches are delimited by rules of the game that do not leave room for the creative freedom required by the IPL. However, although the Court of Justice of the European Union has made it clear that sporting events are not “works” within the meaning of the law, it has stated that these events have a unique and, to a certain extent, original character that could make them an object worthy of protection comparable to that of works.

However, we must not lose sight of the fact that, in this case, the CJEU is talking about sporting events – in a generic sense – and not about eSports in particular.

Intellectual property: relevant aspects applicable to eSports

The software, the platform on which the games are played, the names of the games, the broadcasting rights, the exploitation of the image rights (names of the professional players, names of the teams, etc.), the brands that sponsor these teams or players, and many other aspects, are what characterize this discipline.

In this sense, it could be said that in the field of eSports we find practically all the figures that encompass Intellectual (and Industrial) Property. An example of this would be:

  • patents, through artificial intelligence systems to host games and create different environments, different scenarios, multiplayers and/or peripheral devices that include video cameras;
  • trademarks, which are present both in the names of the game itself and in the platforms on which the competition takes place or, for example, the sponsors;
  • copyrights, since video games that meet the originality requirement are eligible for legal protection – whether we are talking about software, multimedia works or audiovisual works;
  • industrial design, for example, if we go to the aesthetic design of the devices used;
  • and, one of the most important in eSports, licensing, i.e. the use of a video game by an eSports event organizer requires obtaining a licence to use it and make it available to players. The same applies to the inclusion of images of athletes, players or even spectators, as far as their image rights are concerned, they will also require the appropriate licences/permissions, as we will see below.

As we have just pointed out, eSports are based on an essential element: the licence to use the video game in question. Although article 10 of the IPL does not name video games as a protectable work, this precept has a list from which its inclusion can be deduced in a detailed manner.

This is so insofar as video games have the following characteristics that are protectable by copyright:

1- audiovisual elements (images and sounds), and

2- the software by means of which the audiovisual elements that allow users to interact with the video game are technically managed.

This is why the doctrinal positions categorize video games as: an audiovisual work, a computer program or a computer program with typical elements of an audiovisual work; denominated by the doctrine as: multimedia work.

We are therefore talking about a computer program understood in a broad sense as a set of audiovisual content and script digitised and integrated into the software, without prejudice to the individualised protection that may exist on the different elements that make up the video game.

Thus, it follows that video games are works protected by intellectual property law, provided that they are original and expressed on a medium. Specifically, they are complex works, since, as we have seen, they are made up of different kinds of contributions that we could classify into two groups: the technical part and the artistic part.

The technical part would basically consist of a computer programme, which provides the video game with structure and allows the movements made by the players on the controller to be faithfully represented in the game. On the other hand, the artistic part would be made up of a wide variety of creative contributions: characters, skins, scenarios, plot or script, music and even acting performances[2].

Turning to the need for licenses for use by the videogame developer, these play the most important role in the eSports discipline. These licences, covered by the IPL, are granted on the one hand to the players to allow them to enjoy the video game on an individual basis, and on the other hand to the promoters of the competitions so that they can organise them with their consent. It is therefore essential that these licences include the transfer of the right to make the video game available and communicate it to the public so that it is possible to broadcast the competition in question, as established in article 20 of the IPL.

This is logical given that the organization of a competition of this type implies the exploitation of an act of communication to the public, since the attendees, by viewing the competition, will have access to the video game without the prior distribution of copies. eSports competitions, therefore, cannot be organized without the developer company holding the rights to the videogame in question granting a licence for use.

Not to mention that these competitions can be and are on several occasions great opportunities for other brand sponsors, as a large source of eSports revenue comes from advertising, sponsorship contracts and tournament prizes.

Be that as it may, there is no doubt that eSports are already the present and, although for the moment they are under the legislative umbrella of Intellectual Property, a more specific regulation is needed that addresses all aspects relating to this type of competition in a single legal text.

Eduardo Zamora | Sara del Río

[1] Also take into account EU legislation: DIRECTIVE (EU) 2019/790 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC.

[2] Legal Guide to eSports. Present and future of eSports regulation in Spain. ONTIER, Professional Video Game League and José David Martínez Torres (June 2016).

Image: Florian Olivo on Unsplash