Trends, analysis and insights in IP Law
In Part I of this blog post, I explained what a reaction video is, how it could constitute copyright infringement under the Copyright Act, and how the possible legal exception for “criticism” or “review” might apply to a reaction video. In Part II of this blog post, I further analyze this exception through both a Canadian and U.S. legal lens (no pun intended).
Continue reading A few months ago, my colleague Jay Kerr-Wilson published this blog post on the intellectual property issues surrounding the phenomenon of “Let’s Play” videos, a genre of online videos where an individual records and broadcasts themselves playing a video game. The individual might film themselves or just provide audio commentary, but in either scenario their own content is layered on top of the game that they are playing. The blog post discusses how this video genre could be considered copyright infringement with respect to the video game being played, as well as why generally we are not seeing infringement cases in this area because of the symbiotic relationship between content creators and video game publishers.
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Internet Service Providers (ISPs) have seen an increase in litigation related to Canada’s notice-and-notice regime since it was added to the Copyright Act in 2012. Plaintiffs, generally the owners of copyright in films, have brought claims in Federal Court using various procedures. The Court recently released a decision offering guidance on the proper way to do so although there is still some uncertainty on this point.
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Just before New Year, a controversial piece of US legislation tucked into a COVID-19 relief package had people who stream video gameplay online concerned that their livelihood was about to be criminalized. While a careful reading of the legislation reveals that the initial reaction was unwarranted and perhaps overblown, it does raise some interesting questions about the legal status of “streamers” and the interplay between game publishers and online video content creators.
Streamers use internet platforms such as Twitch and YouTube to broadcast videos of themselves to their fans and followers. Some of the most popular streamers will play videos games on camera during the streams. These gameplay videos are sometimes referred to a “Let’s Play” videos (as in, “Let’s Play Animal Crossing” or “Let’s Play Assassin’s Creed”). They earn revenue by offering subscriptions, accepting donations from fans, promoting products and services, and selling merchandise. The videos are live streamed so viewers can interact in real time with the streamer using a chat function. Many of the videos are also stored and can be viewed on-demand later.
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Many people have a great deal of digital content stored “in the cloud”, often through email, social media platforms, file storage and other related services. Whether it is the storage of user-created content, such as photos, videos or documents, or content that users pay to access, such as music and e-books, the use of such services is governed by the Terms of Service (“ToS”)[1] of the relevant company (“online service provider”).
Despite the often monetary or emotional value of such user-created content, ToS tend to be contracts of adhesion; if a person wants to use an online service provider, they generally have no option but to agree to that online service provider’s ToS. As ToS are almost always unilaterally-generated contracts where the individual has no negotiating power vis-à-vis the online service provider, the reality is that most people usually accept ToS without actually reading them. As a result, many are unaware of how the ToS affect their rights to the accounts with these service providers and the content stored in association with them, or the rights their heirs might have in this regard after they die.[2] This is particularly the case for an individual’s copyright with respect to the content that they create through or store with the online service provider.
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