A CURE FOR TWITCH: COMPULSORY LICENSE PROMOTING VIDEO GAME LIVE-STREAMING.

• Author: Qiu, Yang

ABSTRACT INTRODUCTION I. UNAUTHORIZED STREAMING AND DEFENSE AGAINST COPYRIGHT INFRINGEMENT IN CHINA AND U.S A. Practice of Video Game Live Streaming 1. Overview of Unauthorized Streaming 2. "SpectateFaker" Dispute Brings Copyright Concerns about the New Business B. The Legality of Unauthorized Streaming of Video Game Playing Is Uncertain 1. Is the Gamer's Online Streaming Infringement? a. U.S. Law b. Chinese Law 2. Is the Streaming Platform Protected by ISP Safe Harbor? a. DMCA Safe Harbor b. Chinese Safe Harbor 3. Can Streamers Get Copyright of Their Oral Commentary and Performance? II. A NEW COMPULSORY LICENSE IN CHINESE COPYRIGHT LAW TO HELP VIDEO GAME STREAMING OUT A. Proposal of Adopting a Compulsory License in Chinese Copyright Law 1. Draft of Video Game Streaming License Provision 2. Key Elements of the Proposal a. When the Compulsory License Applies b. Opting Out of the Compulsory License c. Right of Cancellation d. Remuneration B. Application of Proposal C. The Advantages of Adopting a Compulsory License 1. Harmonized with Chinese Legal System 2. Satisfy the Efficiency Requirement of Network Environment 3. Balancing the Interests Between Copyright Owners, Streamer(s), and Streaming Platforms III. RESPONDING TO CRITICISMS ON A COMPULSORY LICENSE WITH "RIGHT OF CANCELLATION" A. Why it is Unlikely that All Game Publishers Would Cancel the License? B. How the Proposal Satisfies the Three-Step Test of the TRIPs Article Thirteen CONCLUSION INTRODUCTION

Have you ever heard of "Arteezy"? He is a famous video game player who broadcasts his game playing live on the Twitch.tv website. Arteezy gains more than three-hundred thousand subscribers that pay $4.99 per person each month to stream his game playing. (1) At this rate, he could potentially earn at least $1.5 million per month from his fans. That is a substantial amount of money! All his success is based on the development of an emerging industry: the video game streaming industry.

The video game streaming industry is based on the technical development of online streaming platforms. Recently, one of the most famous video game streaming platform "Twitch.tv" was purchased by the company Amazon for $1.1 billion. (2) What type of venture commands this type of price? Basically, "Twitch.tv" provides video gamers with a website location to share and stream their video game experiences with others. Through the platform, streamers host their own channel and achieve interaction with audiences while playing the game. Specifically, "Twitch viewers typically see the screen of a [web]caster, featuring the game being played, along with a video feed of the player's face and a chat window so they can communicate with the player and others watching the action." (3) And the audiences are not a group of people sitting in a gymnasium or theater--in fact, they are millions of Twitch users sitting in front of their computer screens. "Twitch boasts 1.5 million broadcasters ... [a]nd its 100 million viewers per month spend an average of 106 minutes watching streamed content on the network per person per day." (4) The existence of such activities is not new, and there are lots of websites around the world that share this "big cake," like "Douyu.tv" in China and "afreeca.tv" in Korea, whom primarily focus on "video gaming, including playthroughs of video games by users, broadcasts of e-sports competitions, 5 and other gaming-related events. Content on the site can either be viewed live, or viewed on an on-demand basis. (6) However, lurking in the live game streaming industry are some copyright risks, which need to be mitigated to ensure the new industry flourishes in the future. Video game streaming consists of the platform who profits from the hits and ads, and streamers who share the profit with the platform. (7) Absent from this wealth distribution party are the copyright owners who own the copyright of the electronic games played by streamers. As large amounts of wealth are channeled to the new industry, disputes are unavoidable. What if the game developers argue that live streaming infringes their copyright? Another question is whether the live streaming content is copyrightable work. And what if someone rebroadcasts and transcribes the streaming content without permission? Those questions along with the development of a new technology that demands a prompt solution have not been answered effectively by the legal system in China, which always puts e-sports (8) on an equal footing with traditional sports. (9) Chinese copyright law lags when confronted with a new industry, like online streaming, (10) whereas the U.S. copyright law fails to provide perfect answers to these questions. To help this burgeoning industry grow, while ensuring protection of copyright and financial fairness, a new solution must be identified.

This Note proposes a compulsory license that absorbs the right of cancellation and elements of the implied license doctrine from the U.S. approach as a potential legislative solution in China. This proposal attempts to eliminate the high copyright infringement risk of the video game streaming industry, but it seeks to balance the interests of steamers, platforms and copyright owners. To prevent abuse from streamers (11) and prejudice on legitimate interests of copyright owners, a "right of cancellation" is the suggested solution.

Part I of this Note provides an overview of the unauthorized streaming problem. Part I also discusses whether elements in US copyright law, such as fair use and the DMCA safe harbor will be successful in China. Part II proposes an amendment to Chinese copyright law, which would create a compulsory license that allows video game players to participate in game streaming and pay remuneration to copyright owners. This proposal absorbs the right of cancellation and elements of the implied license doctrine as a potential legislative solution in China, which prevent abuse from streamers and helps copyright owners as they attempt to enforce their rights. A more compatible compulsory license will resolve the issue and make sure copyright owners receive their fair share of this new business while it continues to develop. Part III discusses the potential criticism to this proposal.

1. UNAUTHORIZED STREAMING AND DEFENSE AGAINST COPYRIGHT INFRINGEMENT IN CHINA AND U.S.

   As the market value of video game streaming increases, some potential copyright disputes are aggravated. Recently, a dispute occurred between famous streaming platform Twitch.tv, Azubu and the famous video game manufacturer Riot. (12) This dispute provides an insight into how this new industry works, how the parties are involved, and how the potential disputes occur. In the video game streaming industry, further copyright disputes are inevitable. However, the Chinese copyright law lags in this new industry, compared to U.S. copyright law on some issues. Under current Chinese law, those issues will be difficult to solve. Part I further analyzes the problem of unauthorized streaming of video game playing under copyright law of U.S and China.

   1. Practice of Video Game Live Streaming

      As explained later in this Note, video game streaming has grown in popularity and created more controversy under copyright law. The biggest problem currently is that most of the video game streaming is unauthorized. The streaming industry is at risk of high copyright infringement. And disputes like "Spectatefaker" might happen more frequently. That is not an ideal situation for a growing industry.

      1. Overview of Unauthorized Streaming

         When video game streaming occurs, it inevitably involves copyrightable parts of the game. For instance, when "Arteezy" plays the game DOTA 2, (13) "Arteezy" also makes comments, and communicates with audiences during the stream on Twitch.tv. Typically, his stream includes several discrete elements: the picture of DOTA 2, the sound and background music of DOTA 2, his oral commentary, and video showing his face. The streamed content contains the visual work and sounds of the game, which could infringe Valve Corporation's copyright if "Arteezy" lacks authorization.

         Under current U.S. copyright law, infringement occurs when someone publicly performs copyrighted work without a license. (14) The Copyright Act dictates that "public performances include not only displaying copyrighted content in public to a substantial number of individuals, but also disseminating electronic copies of the content." (15) Under the protections in U.S. copyright law, video game copyright holders have legal authority to prohibit public tournaments, like online streaming content that features their games.

         The question is how many streamers and platforms have licenses from a copyright holder for use of their video game. The answer is few. (16) That is, only "several [manufacturers] have enacted user agreements that explicitly allow for the live streaming of their titles. But such agreements often do not extend to commercial use...." (17)

      2. "SpectateFaker" Dispute Brings Copyright Concerns about the New Business.

         As the video game streaming industry has developed, copyright disputes involving unauthorized streaming has occurred frequently in China and the United States. In February 2015, streaming platform Azubu sent a DMCA takedown notice to Twitch. This dispute began when a Twitch channel "SpectateFaker" streamed the game playing content of professional player Lee "Faker" Sang-hyeok on Twitch.tv through LoL (18) spectator mode. According to a contract Azubu signed with "Faker" in September 2014, "Faker" can only stream his game playing exclusively on the Azubu platform. (19) However, the "SpectateFaker" streamer StarLordLucian countered that "according to the LoL terms of use, players sign away rights of ownership to the gameplay content they create within the game. Legally, Azubu does not own the streaming content that Faker was producing. Thus, their DMCA action was not based on a valid legal claim...