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ByteDance’s Douyin and Tencent tussle in court over game livestreaming rights

Written by Song Jingli Published on     3 mins read

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If a gamer livestreams her gameplay, who owns the media rights?

Chinese short video and livestreaming app Douyin is appealing in a lawsuit with Tencent over a copyright dispute related to game livestreaming, its parent ByteDance confirmed with KrASIA this week. The Guangzhou Intellectual Property Court ruled late April that Douyin violated Tencent’s copyright of the “continuous images” generated in Honor of Kings and was ordered to pay RMB 8 million (USD 1.2 million) in compensation.

The lawsuit dates back to 2018 when Tencent, which operates its own game livestreaming platform eGame, found that rival Huoshan, run by Douyin, was openly recruiting players to livestream Honor of Kings, providing the recording software, and promising a cut of the revenue from viewer tips. Terms and conditions of the game prohibit livestreaming, among other commercial usage.

Douyin argued that Tencent has been encouraging gamers to broadcast or distribute videos of their gameplay on various platforms since 2016, offering cash rewards or traffic support, and that the clause that bans users from livestreaming was buried deep in the 37-page user agreement. The defendant further stated that livestreaming without the publisher’s authorization is a common practice and that players should own the rights of broadcasts that showcase their own strategies and skills in the game.

To support its argument, Douyin cited an announcement Tencent made in June 2018. Tencent asked contestants to submit videos where gamers speak about their gameplay, saying that it “only had the right for usage” of the videos. That would indicate that Tencent agreed that players contribute “creative efforts” and thus own the copyright as a new form of production independent from the game itself, Douyin said.

There is no certain answer to whether all livestreams can be viewed as “new productions,” as there are various forms, said the court. Regarding the recordings provided by Tencent as evidence, the court remarked that these materials could not be viewed as new productions as the players’ additions, such as their narration, were “rather simple and lacked creativity.” Douyin did not submit sufficient evidence to support the contrary, and even if it could, the usage cannot infringe upon the plaintiff’s copyright of the original game product, the court added.

Although livestreaming, as a new form of communication, is not part of any category listed in Chinese copyright law, the court ruled that Tencent has the right to control livestreaming that involve its games, citing the WIPO Copyright Treaty that China joined in 2006.

The court also ruled that Douyin was at fault for “inducing, encouraging, and organizing” internet users to livestream the plaintiff’s game, even after Tencent contacted Huoshan to demand cessation of the practice. These livestreams were not solely planned and executed by the players, and Douyin did profit from them, the court added.

“Viewing the current legal framework, it’s no problem for the court to rule against Douyin, confirming the infringement in its role as an instigator,” commented Zhao Baodong, a lawyer with Beijing DHH Law Firm. However, the court did not rule on the copyright ownership of gameplay livestreaming in general, Zhao added, expecting the problem to be addressed in future legislation.

A streamer who goes by the name of Wu told KrASIA that if a platform permits users to livestream gameplay, then it should have acquired the relevant rights to host the streams. But who owns the final product? “If I create the effects, then I should have the copyright,” Wu said.

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