CREATe is happy to present the sixth entry in our series of working papers released in 2023: “Copyright and the Player” by Amy Thomas, Lecturer in Intellectual Property and Information Law, CREATe, University of Glasgow. It is a pre-peer reviewed draft of an upcoming chapter in the Research Handbook of Interactive Entertainment Law (Elgar).
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It’s a playful week ahead for CREATe, as we look forward to hosting the fourth edition of Icepops: the International Copyright-Literacy Event with Playful Opportunities for Practitioners and Scholars, at the University of Glasgow Advanced Research Centre. I have the honour of giving the opening keynote for this event, where I’ll be discussing (Dungeons & Dragons-style) ‘what copyright can learn from games’. In that same (playful) spirit, it’s an apt time to release my newest working paper, which gives a deeper dive into ‘Copyright and the player’.
This paper is a new extension of my existing work for the ‘You Can Play’ project, initially conceived as an impact project and now branching into a more academic focus (following on also from my recent publication in IPR). To date, that existing work has mostly focussed on player-made creations that use game content, and content creation policies set by game owners. The connecting thread throughout this work is ultimately about understanding the nature of the player, and by extension, play itself in copyright law. This paper begins this exploratory research through a doctrinal, normative analysis of case law in the UK, EU, and US.*
*As an aside, writing this paper also allowed me to re-visit one of my favourite pastimes of video game law research: reading about how judges understand games in the most clinical and detached manner possible. For example, the ultimate goal of Duke Nukem being described as to ‘zap them before they zap you’ (MicroStar, 1109), or that Pac-Man has more sinister undertones than previously understood, whereby ‘four ghost monsters, named Inky, Blinky, Pinky and Clyde, chase after the Pac-Man attempting to capture and destroy him’ (Midway, 1003).
This working paper is a pre-peer reviewed draft of an upcoming chapter in the Research Handbook of Interactive Entertainment Law (Elgar). Comments and feedback to the author are very welcome (amy.thomas@glasgow.ac.uk).
Abstract
This paper explores the ontological construction of the player in copyright law. The player has a central role in interactive entertainment; their presence is both invited, and necessary – one must play a game to experience it. Yet, play is transformed into an engagement with copyright law through the many underlying copyrights of the primary game creators. The player is now a user of a proprietary work.
This is assumed self-evident, by design, but the user is both recreational and re-creational. Does the player make decisions in a game which are original creative expressions, or are they merely following the rules of a system to its logical conclusion (playing a game)? It reviews existing copyright doctrine which construct the player as either an author (or performer) or a user. The paper focusses on the value playing a game itself, rather than any ancillary or spin-off game products.
The paper forwards a normative argument which emphasises understanding play as existing outwith this reductive production consumption binary: rather, we should try to understand play, and by extension the player, on their own terms. Those terms may exist outwith the boundaries of copyright. Debate has undercurrents of a strive towards legitimation – the award of a proprietary right or the endorsement by the law of the excepted activities. Play is not necessarily either of these things – but we should also resist the argument that everything worthwhile is productive.
Full paper can be downloaded here.