Sports are the integral part of social being. Sport Industry has created communities of players and it has an economic engine that has provided jobs to millions of people. The sports industry being a massive sector has helped to bring out various cultures and economies together in the past century. Sport is truly a global phenomenon. As a social security whether it is regarding participating as a recreational pastime, competitive playing at amateur levels, the elite and many professional levels or in terms of spectating, sport assumes immense cultural significance. Intellectual Property Rights vests rights in almost every component of the sports industry. Sports are showing Intellectual Property in action and the Intellectual Property in return powers the business of sports. This article focuses on the need to have regulation in E-Sports so as to mitigate IPR Conflicts.
Keywords: E-Sports, Intellectual Property Rights
Introduction: Sports And Intellectual Property Rights
“Sports is where an entire life can be compressed into few hours where the emotions of a lifetime can be felt on an acre of two of ground, where a person can suffer and die and rise again on six miles of trail. Sport is a theatre where a sinner can turn saint and a common man become an uncommon hero, where the past and the future can fuse with the present. Sport is singularly able to give us a peak experience where we feel completely one with the world and transcend all conflicts as we finally become our potential.”- George A. Sheehan
Sports are the integral part of social being. They are so ingrained in our life that they have become an essential part of our lives. Right from the barbaric era through the glorious days of Caesar to the twenty first century everyone loves sport. People are drawn into sports activities since time immemorial and from passion it has evolved into global industry with unlimited trade opportunities. Sport Industry has created communities of players and it has economic engine that has provided jobs to millions of people. The sport industry being a massive sector has helped to bring out various cultures and economies together in the past century. Sport is truly a global phenomenon. As a social security whether it is regarding participating as a recreational pastime, competitive playing at amateur levels, the elite and many professional levels or in terms of spectating, sport assumes immense cultural significance. Today, sport has achieved so much essence that it is a multi- million dollar industry. Both men and women have to perform under astounding circumstances to sacrifice other areas of life. Sports have become significant part of life and society which go beyond religion, caste, creed, colour and sex. On the other hand the scope of Intellectual Property Rights is of immense importance in the sporting arena. Intellectual Property Rights stimulates creativity in virtually all aspects of human activity and behaviour and sport is no exception too. Every field of sport is well equipped with innovation. Yet sports could not become a commercially productive asset without the Intellectual Property Rights, the incentives are attached thereto. Sports activities in today’s scenario have undergone rapid changes and have evolved very much development since its inception. To a very large extent Intellectual Property Rights, have provided the right incentive to continuously inspire advancement in sports.Intellectual Property Rights vests rights in almost every component of the sport industry. Sports are showing Intellectual Property in action and the Intellectual Property in return power the business of sports. This article focuses on the need to have regulation in E-Sports so as to mitigate IPR Conflicts.
E- Sports And Underlying Intellectual Property
Starting hunting as a sport in the primitive era to develop different kind of popular sports such as Cricket, football and various other sports, human beings have progressed so far and have come long away to develop sports which suits the modern generation too. With the advancement of human civilisation with modern science and technology, human beings too have advanced themselves to develop E- Sports. E- Sport is perhaps the most revolutionary introduction to sport in the recent time. The E Sports stands at an interesting and crucial juncture between Intellectual Property Rights and Competition Laws which share a common vision for promoting innovation and fair competition to ultimately serve the consumer interests but both of these laws are find in conflict with themselves. At some point of time, every one of us has been admonished by our parents for playing video games. However the trend is changing. With the advancement of E- Sports all around the world a career in just playing video games is now positively discussed across various platforms as a career for an individual to pursue wholeheartedly. The concept of E- Sports has existed since decades and was recently included in the Oxford Dictionary and various other lexicons. As per Oxford Dictionary an E- Sport is a multiplayer video game competitively for spectators, typically for professional gamers. According to the latest statistical data, the market revenue of the E- Sport industry is set to surpass the 1.1 Billion Dollar mark a year on year growth of about 27% and this is only going to rise. As far as viewership is concerned, E- Sport is set to reach the 450 Million Mark in 2019 consisting of both occasional viewers as well as the sport enthusiasts. The number of gamers in the world is estimated to cross the 2.5 billion mark which is absolutely striking and is a clear proof of how the world of e- sports is witnessing a revolution. The E- Sports industry has done exceedingly well without any regulation being imposed but the need of hour is to frame rules as when one looks at the broader challenges to the industry and the concern that its stakeholders have voiced in the recent times with the issues like gambling and match fixing has adversely affected the reputation of E- Sports enterprises which makes the need of passing of laws to govern the activity a necessary exercise. Although excessive regulation is always frowned upon many certain activities need government intervention in the form of legislation to ensure the rights of the interested and effected parties. The more any activity attracts people the more and more are chances of conflicts and disputes. If the activity of any kind involves the human intellectual possess rights over such creation than it is inevitable. The International Olympic Committee has recently announced that E- Sports can also be recognised as sports activity.
Why E- Sport Is An Unconventional Sport?
There are some proponents of Intellectual Property Regime for E-Sports who want protection after drawing comparisons between normal sports with e sports. Since there are protection available for sports that could be enough of a reason to award such protection to E- Sports. The creators of Video game do not design a scripted system but an interactive system. Copyright law provides protection to those video games whose authorship does not resemble non interactive works. But in spite of all such laws, E- Sports disturbs the complex equation between sport and intellectual property in the two following ways.
1. There is huge gap between the legal protections which is available to other sports in comparison to E- Sports. There are the laws which identify the Intellectual Property Rights framework in E- Sports era. E- Sports are the creative creation and if such creation is not covered by the generic rights there is nothing that can stop the E- Sport makers from replicating the same. This situation of recognition of creator’s right has caused lot of confusion between recognising E- Sport under Intellectual Property Rights.
2. E- Sports has involved in the practices of causing reputational hazard for sports. Real sportsperson are always looked upon for the inspiration and are the role models for millions across the world. But comparing both these formats one would be in vain as they differ in many aspects. Thus, the already complex application of Intellectual Property Rights would have made E- Sports more complex.
The intersection between Intellectual Property Rights and E- Sports can be analysed on the basis of two levels. The first level requires the need for the legislative intervention and second level requires game developers to protect their IP’s.
Concern Of E- Sports In The Intersection With Intellectual Property Right
The following are the concern of E- Sports in the intersection with the intellectual property rights
1. Doping: is real problem in E-Sports which has challenged many aspects of Intellectual Property Rights. A survey among survey league of legends players in 2017revealed that 27% of the players know about the players who take amphetamines to stay sharp for the competition. In the year 2015 a professional Counter Strike player Kory Semphis admitted that his team had abused adder all to enhance their performance during competition.
2. Match Fixing: is another problem that has plagued E Sports. According to E-Sports integrity Coalition’s Integrity Commissioner Ian Smith match fixing may either be in the form of low tier incidents wherein teams or players enjoy a kickback from deliberately losing games and high tier incident wherein gambling syndicates bribe players. One of the most high profile cases of match fixing came to light when Lee Seung Hyun a professional starcraft player was prosecuted for deliberately throwing two matches and was sentenced to 18 months imprisonment suspended for 3 years and fined 70,000,000 KRW. He was banned for life from South Korean E- Sports.
3. Game Modding And Cheat Bots: The gaming industry has gained a significant traction in the decentralised form of content creation which gives leverage to the creativity of players. The players are increasing involved not only in playing games but also in the creation and production of content. This practice of creating content for games has been referred as game modding which in general parlance derived from computer game modification ‘game mods’. The question that arises is to what extent player made games mods constitute as original expression in which copyright may subsist in accordance with law. Also whether it should be considered the right in game mods may be independent of the copyright in the original computer games.To answer these questions of such practices of acquiring rights in player made creation can lead to unfair contractual terms. Apart from the contractual obligations this kind of practices also raises issues of Intellectual Property concern. On the other hand, cheat bots have created lot of debate in the field of competition law and Intellectual Property Rights. Cheat bots may be defined as the software that are used in order to improve the skill of certain games characters while wasting time and indulging in activities that require very less energy.In the case of World of War craft I, the German Federal Court of Justice extensively debated about the legal permissibility of the cheat bots. The defendant in this case has downloaded the client software of the petitioner and used the same to run the games developed by the plaintiff on their computers. The German Federal Court was of the opinion that the question of cheat bots for sole purpose of sale and using it in games is held to be illegal. Thus both game mods and cheat bots have certain concern and consequence in the use of IP which is not uniform and it depends upon the third party exercising the right of protection or not. Another important concern is the question of ownership of copyright over the modification which is still undefined in the present scenario.
How We Can Mitigate IPR Conflicts In E- Sports
1. Combating Challenges Of Legitimacy: E –sports faces serious challenge in the current climate and these are primarily issues of integrity such as gambling, doping and match fixing that threaten the legitimacy of the industry. This was witnessed most prominently in 2015 when twelve people were arrested in South Korea for fixing the outcome of Five Starcraft II Game an incident which shook the industry because of the scale of crime. A similar incident took place in the year 2016 when prominent gamer life was prosecuted for agreeing to throw two matches which resulted in him being banned for life from E- Sports and sentenced him to 18 months imprisonment.  The spectre of match fixing also affects other games and in particular the prominent title DOTA 2where one of the tournaments the Pro Data Cup attracts around 150 gamers on an average in which almost were the gamblers. Gambling has become a major part of E- Sports enterprise which has witnessed by the popularity of the ‘Skin Gambling industry that has developed around Vale ‘s popular Counter Strike : Global Offences which arouse as a result of the Company Arms deal update. This deal has allowed the user to obtain crates that could only be unlocked by purchasing a key from a compulsory operated store inside which there were weapon kits that could be sold, traded and gambled by players who obtain them. Such has been its popularity that it has become a phenomenon on its own being valued at a staggering of 7.4 Billion Dollars in the year 2016.
On the other had doping is yet another issue that challenges the legitimacy of the industry which began after professional CS: GO player Kory Friesen which was quoted in the year 2015 as, “We are all Adder all”. The most commonly used drugs are those that are commonly prescribed to treat ADHD which give users higher levels of concentration, alertness and energy. It can also keep a person from developing an appetite during the time the drug is in effect which helps the gamer to sustain them through drawn out strategy games. In response to these concerns prominent tournament organiser ESL (Electronic Sports League) began implementing random drugs screening of competitors across variety of events and doping has since begun to be equated with more prominent offence such as hacking and match fixing.
2. Stakeholder Concern: the major challenge that is being faced by the E- Sports is its failure to address the concern of stakeholders who make up the whole ecosystem of E- Sports games. These participants comprise of players, game developers and tournament organisers each of whom have varied but equally significant concerns. The major issue which has gripped E- Sports Industry is its concern towards the contractual obligations that professional players are made to sign in with riot’s game which in particularly causes major controversy in this regard. This is because of the heavy bias that the contracts exhibits a favour from the company with restrictions on live streaming  and complete handover of the image right attracting much of the criticism on the part of teams and players. From the viewpoint of organisers and game developers any regulation that is passed must preserve the freedoms that they enjoyed so far as it is the ability to innovate that has been most significant in getting the industry to the position as it now today. As developers look for the ways to make better use of their title the freedom to innovate and take risk is an indispensable requirement making free from rein for such organisation a priority for any regulatory regime looking to impose rules on the industry. But on the other hand tournament organisers are worried about the potential risks and conflict that may arise with the game developers over Intellectual property Right concern which is certain to become a major topic in E- Sports over the coming years. E Sports need to preserve the legitimacy of the industry and address the concern of stakeholders by uniform laws that will ensure that the enterprise clamps down on activities that threaten its claim of being the legitimate sporting activity.
3. Incorporation Of IGB (Illegal Gambling Board): the most important factor that will be ensured by IGB is divided in three important aspects
(A) Firstly it will include professional E- Sports organisation and National E- Sports federation.
(B) Secondly it should make an effort to include the publisher of games in their decision making process. Including the publisher would allow the Illegal Gambling Board to lay down a uniform set of guidelines regarding several aspects common to different games such as cheating, doping etc.
(C) Thirdly the players must have voice in order to raise their concern regarding various issues which would have great emphasis on the player’s welfare.
Regulatory Regime Of E Sports In Different Countries
It is need of hour that the E-Sport Industry must be regulated but another point sets out how it must be done. This kind of uncertainty is reflected in the varying approached adopted by different countries such as South Korea, France and England.
South Korea is amongst the Country which has most developed infrastructure for E- Sports and in order to regulate the same the Korean Government has enacted Korean E- Sport Association as a part of ministry of Culture, Sport and Tourism in the year 2000. The body licences and regulates pro gamers and E- Sports team in addition to controlling the broadcasting right Korean E- Sport Association policies and actions have gone through a long way in enhancing the legitimacy of E- Sports. The government also maintains a tight control on online gambling, with E- Sports excluded from the purview of games on which gambling takes place. This body is also successful in negotiating with riot games for minimum wages which show that developers are amenable to negotiating with the government bodies. Korean E- Sport Association also regulates broadcast of E- Sports by determining which channels get to air live tournaments which has allowed the E- Sport industry organically rather than disrupt the growth of industry which is still very much in its infancy.
France has less developed system E-Sports infrastructure in comparison to South Korea. But France is moving towards classifying and regulation of sports by setting up a federation to oversee its growth. Rules promulgated by the French Government limit players contract to a minimum period of 12 months and maximum period of 5 years and prohibit players under the age of 12from competing in monetised tournament. These are very important regulation that has been set by French government keeping in mind the player’s interest as stakeholder in the industry and are reflective of the growing acceptance of E- Sport in the Western World.
England on the other hand is yet to emerge the true efforts to regulate the E- Sports Industry. The British E- Sports Association serves as the national body in this area and was set up in the year 2016 after receiving authority from the government to represent competitive gaming at all levels. However it does not seem to have any power to actually impose rules on the industry with the betting aspect of E- Sports falling within the domain of the England gambling commission.
Thus, overview of regulatory regimes in different countries provides that there is a line of thinking which postulates the need for a single overarching international organisation that would provide uniformity of standards across wider E- Sports Industry. Implementing this idea is not too easy as the lack of enforceability on the part of these international bodies results that there is a need to emphasis more focus on setting up regulatory entities in individual jurisdiction.
The unique nature of E- Sports makes it important that the rules must be implemented in bottom up manner. Indian authority must necessarily establish a statute so as to ensure its legitimacy and must have defined clear power and functions with respect to E- Sports authority in India. Following the model of South Korea in this regard Indian E- Sports authority needs to have the power to licence professional players and sports team throughout the country which can be achieved by imposing a rule that all players have to acquire a licence to compete in gaming tournaments with financial rewards. This will enable the government to maintain a traceable link between a real person and in his game avatar so that the authority will be able to clamp down on offences like doping, match fixing, cheat bots etc which always have threaten the industry. At present no Indian laws exits to govern the concern regarding the doping, match fixing and online gambling in India. Though a bill was introduced by Member of Parliament Shashi Tharoor with a view to regulate the E Sports enterprise. Thus it is a right time that the Indian authorities to focus on implementing the licence system along with the statutory framework to redress the issues arising from E- Sports enterprise.
The presence of E- Sport is quite widespread but the discourse on their protection under Intellectual Property Rights is still very complex. E- Sports have so far enjoyed immense success by following the policy of self regulation but the industry is approaching towards an inflection that makes it necessary to impose laws to direct its future growth. We therefore need to be prepared for litigations surrounding the E- Sport and the persisting IPR. Taking into account the governance model of South Korea, India should also follow the same system of E-Sports governance which would help it to accomplish its goal.
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About Author –
Pranav Kumar Kaushal – Student of Law at School of Law, Bahra University, Shimla, HP