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DISCLAIMER: The article below isn’t “legal advice” and is provided for entertainment, educational, and informational purposes only.
This caused much concern that the Japanese game publisher would use the new rules to come down on either their own videos or on those of their favourite content creators. Such worries are entirely legitimate, though they also may be at least slightly misplaced.
Why? In order to understand that, we first need to dive a bit deeper into the nature of that most bizarre of consumer-facing legal structures: copyright law.
So, when a publisher creates a video game, they hold the “copyright” in that game. What does that mean, really? Well, “copyright” is best thought of as the name for a bunch (or a “bundle”) of different rights that the copyright holder alone possesses. Among these rights are the right to reproduce the “work” in question (hence “copy” right), to “perform” and “display” the work, and to make new things (like videos) that are based on the original work (“derivative” works).
Now, you may have heard this before, but when you “buy” a piece of software like a video game, you are not buying the underlying code, but are instead licensing it on the specific rules that the copyright holder puts forth. Those rules are contained in a specific agreement often referred to as a EULA (‘yoo-la’) which stands for End User License Agreement, and will most often limit the purchaser of the game to using one copy of the game on a single platform.
While this might seem offensive at first glance, it is pretty intuitively correct. No one would think that they can purchase a copy of God of War (or The Lion King), put it up in a movie theatre, and then charge people to play or watch it, after all. That’s effectively what copyright prevents.
Now, it’s worth noting that it gets a bit more complicated when we consider physical media, where a purchaser has the legal right to transfer the embodiment of the material (as you know if you’ve ever sold a pre-owned disc back to GameStop), but for purposes of this discussion, it’s sufficient to understand that, in general, any use of a game will be limited by EULA.
So getting back to the video question, the biggest issue facing creators (and their fans) is “Does the EULA actually give me the right to make a video at all?”
And oftentimes the answer to that question is, unfortunately, no. Looking at the Monster Hunter World EULA on Steam, for example, it states that the license granted is “only for the purpose of playing the game”, and that infringement of Capcom’s intellectual property (such as would occur in the case of the unauthorized creation of “derivative” works like videos) is “prohibited”.
So, if they didn’t actually receive the right to make a video, what is a creator to do?
Well, at the outset (and rightly or wrongly), many simply choose to believe that their use of the protected material falls under what US law calls “fair use”. Fair use is widely cited, but much less widely understood, and expressly permits the use of copyright-protected material (i.e., there is no infringement) if the use meets certain factors such as offering additional commentary, being limited in amount, not hurting the market, etc.
Honestly, a complete discussion of “fair use” could take up its own article (and might yet one day), but suffice it to say, the problem with relying upon it, is that it’s extremely dependent on the individual facts of the potential infringement in question. Did you comment enough? Was too much of the underlying work used? Was it monetized? How much?
“Creators make content that will often be infringing by the letter of the law, which is permitted by the copyright holder so long as it is financially useful, but which permission can be taken away at any time”
In other words, anyone depending on the “fair use” framework would likely find themselves in a long (and expensive) legal battle, which means that, for the most part, if the copyright holder sends a cease and desist letter (or DMCA takedown notice) even a creator that believes they are fully in the right is going to have to listen.
So, you might now be asking “If many publishers don’t license out the right to make videos, and if most could kill “fair use” arguments with a single letter, why then are there *so* many streams and videos?” And you’d be right to do so.
The answer is that, for the most part, copyright holders of all kinds find videos and fan content in general (including things like fan art and films) to be enormously beneficial to their brands. In other words, marketing.
But that leaves creators (and their fans) in an unfortunate position. They make content that will often be infringing by the letter of the law, which is permitted by the copyright holder so long as it is financially useful, but which permission can be taken away at any time (and for any reason) with the hammer dropped on the creator’s channel.
It is in this environment that many publishers, like Capcom, have started making posts like the one we saw last month, evidencing (or formally adopting) guidelines for when the company will choose *not* to take action against creators.
Despite the rumblings on the Internet, then, this is, overall, a good thing. More information is better, and knowing where a copyright holder thinks the line is, will allow creators to better be able to tune their own creations. And that’s true regardless of whether one thinks a given proposed guideline cuts too narrowly.
However, as you can likely tell from all of this talk of copyright law and EULAs, such a policy, whether in the form of a blog, forum post, or E3 speech, doesn’t actually change the rights given (or more specifically, not given) in the legal documents themselves. Such a post, whether coming from Capcom, EA, Activision, or anyone else, is best thought of as advisory.
“Despite the rumblings on the Internet, then, this is, overall, a good thing. More information is better, and knowing where a copyright holder thinks the line is, will allow creators to better be able to tune their own creations.”
“We didn’t grant you the right to make videos”, it says, “but here are the areas in which we are choosing not to bring an infringement claim.” Which should be taken as some comfort (these contours were not specified at all prior to the adoption of the policy), but at the end of the day, very little has changed.
So, the Internet, game players, and video creators are right to be concerned with all of this, but maybe not in the original way they were thinking.
Regardless of the contents of the Capcom policy, without a change to the underlying EULA, a creator is still relying on the “leave” (or largesse) of the copyright holder, or on the nebulous world of fair use. Worse, the contours that such a policy may provide can be ended by the copyright holder just as easily as their “leave”.
Or as Capcom says clear as day and in black and white, its new policy is not “exhaustive” and it “reserves the right to object to any use of Capcom materials”.
What then can creators actually rely upon? What, indeed.