Growth of eSport Raises Issues and Opportunities for IP

In a world of fierce competition between different industries, companies often race to seek different kinds of intellectual property (“IP”) protections to capitalize on consumer attention. In the world of sport, companies have been increasingly tapping into the novel arena of videogame-based sports (i.e., “eSport”). Recently, the International Olympic Committee (“IOC”) declared that eSport could be considered an official sporting activity. The rise of eSport could offer a tremendous opportunity for different business entities to engage with a new market.

According to BI Intelligence, the proportion of millennials who watch eSport is higher than those who watch traditional major US leagues. For instance, in 2016, 31 million people watched the NBA final between the Warriors and the Cavaliers, while 36 million unique viewers watched the League of Legends final. To put this into perspective, that number – 31 million – was the highest viewership for an NBA final on the ABC Network in two decades.

The current estimated eSport audience of 385 million people is expected to generate USD $1.5 billion two years from now.

eSport and VR

With the rise of Virtual Reality (“VR”) technology, eSport can offer fans a new and unique experience that traditional sports viewing cannot not – that is, viewers can become truly immersed in eSport through the use of VR. Many companies have begun to capitalize on different uses of VR technology in this space. Intel, for example, announced its plans to create a competitive VR eSport league with the VR giants ESL and Oculus.

Although the potential for use of VR in eSport is both exciting and possibly lucrative, those involved in creating the IP for eSport/VR platforms may face challenges when it comes to protecting the contents of the games and the underlying technologies. Three potential IP challenges include:

1. general disputes over ownership;
2. disputes over protecting events and performances; and,
3. disputes over ownership of the underlying technology in both eSport and VR.

General disputes over ownership

eSport could give rise to challenges over the use and broadcasting of games. For instance, who owns the IP underlying the programming codes? What about the IP underlying the style of play during competitive performances? Who should have the rights of recording and broadcasting performances? How do IP laws protect the use of a player’s own element, or “skin”?

IP protection for events and performances

Traditional sports matches are not typically recognized as copyrightable works, and, even where a party succeeds in securing copyright protection, barriers to illegal reproduction are extremely low.

In 2015, the EU Court of Justice held that “football matches cannot be regarded as intellectual creations”, and, by extension, do not amount to a “work” for the purposes of copyright law. That said, certain sporting performances that require a higher degree of original intellectual creation could possibly be classified as “works”.

By contrast, eSport has the potential to be more readily subject to copyright protection. Each eSport performance or event has underlying intellectual creations and works that could be copyrighted in ways unique to video-based sports. For instance, the games themselves may be worthy of IP protection since different eSport events, games, or leagues could replicate an existing game or event, whereas, in a football game, no particular performance can be replicated in a manner precise enough to warrant IP protection.

Disputes over ownership of technology

The combination of eSport and VR, too, will likely give rise to novel IP considerations. Last year, over 30,000 patent applications were filed for VR technologies alone, which are estimated to create a $2.8 billion market by 2020. While game developers could legitimately own the content of their games, VR creates the potential for unique interactions between end users and content. In copyright cases, courts often look to whether the impugned work is “substantially similar to” or “based upon” the original work. If VR allows for a “new” expression of the game, it will be more difficult to determine where the developer’s rights to the software end and where the VR provider’s rights begin.

Author: Hassan Rasmi, 2018/2019 Articling Student-at-law