This chapter considers the balance of interests in the live game streaming context. It first offers a brief introduction to the evolution and classification of live game streaming, and then examines the specific copyright infringement issues posed by this activity. As such streaming usually involves the unauthorized use of original game images, it may infringe the right of performance or the derivative right of game developers. Facing this challenge, most streamers seek to apply the fair use doctrine as a defense, especially from the transformative use perspective. The chapter explores this doctrine in depth and examines its application in the live game streaming context, finding a number of loopholes in the doctrine despite the fact that live game streaming slightly passes the “dual-standard” test to be considered “transformative use”. Given the concerns of public interest, transaction costs and the significant potential profits of the live game streaming market, a proposal is made for a new statutory licensing mechanism for live game streaming. Implementing this new statutory licensing mechanism would not only protect the live game streaming industry, transforming it from an infringing business into a legitimate market, but also respect the rights of game developers and protect their economic interests, thereby achieving a dynamic balance between stakeholders.

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Control or Promote? Legalizing Live Game Streaming Through Statutory License

  • Zhaoxia Deng

摘要

This chapter considers the balance of interests in the live game streaming context. It first offers a brief introduction to the evolution and classification of live game streaming, and then examines the specific copyright infringement issues posed by this activity. As such streaming usually involves the unauthorized use of original game images, it may infringe the right of performance or the derivative right of game developers. Facing this challenge, most streamers seek to apply the fair use doctrine as a defense, especially from the transformative use perspective. The chapter explores this doctrine in depth and examines its application in the live game streaming context, finding a number of loopholes in the doctrine despite the fact that live game streaming slightly passes the “dual-standard” test to be considered “transformative use”. Given the concerns of public interest, transaction costs and the significant potential profits of the live game streaming market, a proposal is made for a new statutory licensing mechanism for live game streaming. Implementing this new statutory licensing mechanism would not only protect the live game streaming industry, transforming it from an infringing business into a legitimate market, but also respect the rights of game developers and protect their economic interests, thereby achieving a dynamic balance between stakeholders.