How can we enable actors in the digital gaming space to trustfully create digital content? 

Digital creation, co-creation and ownership rights

Compared to physical goods, digital items can be easily and rapidly shared, modified, multiplied and disseminated. And throughout these interactions, digital property increasingly becomes the result of a collaborative process, where players make use of virtual elements created by game developers, by other players or by commercial third parties. These collaborative processes can also be found in various other creative digital environments, from metaverse platforms to social media and digital collaboration platforms (including in financial contexts, as well as more obvious ones like NFTs) and training processes for generative AI models. 

Much of the creation and sharing takes place on online platforms that provide the framework, resources, tools and accessibility to other creators and users for multi-faceted digital content. Due to the fact that digital content can have significant value, and because the spread of illegal digital content has a massive potential for harm, it is critical that online platforms provide an ecosystem that is technically, commercially and legally trustworthy and, in which digital creators and their creations can maximize their full potential and enjoy creative freedom within safe boundaries, and where collaborative interactions can thrive. Integral to a safe framework are clear and transparent processes for attributing and protecting intellectual property rights.

Legal background

Within the European Union, the DSM Directive, together with its national transpositions, has been aimed at adopting copyright law to today’s digital realities. But the digital age tends to move faster than the legislators: Creations within gaming environments were clearly not on the legislators’ mind, and the provisions are still very much written for the more traditional creations – books, news publications, works of art, music, films and photography. Meanwhile, games present a complex composition of graphics, music, text, film sequences, characters and gameplay, with a plethora of (potential) right holders of copyright, design rights, trademarks and patents.

For online content-sharing platforms focused on user-generated content, the directive clarifies that such platforms must, in principle, obtain licenses for all copyright protected works uploaded by their users. While this provision seeks to strengthen the position of right holders in negotiating the terms under which their works are exploited online, it creates uncertainty for all involved parties in an environment in which – as with gaming UGC – it is often very much unclear whether or not a creation enjoys copyright protection in the first place. Platforms rich in UGC, such as Roblox, are publishing guidelines to aid their creators in determining the boundaries of copyright protection for UGC, and such a collaborative and open approach is well suited for the creative environment gaming platforms are fostering.  

The transparency obligations under Art 19 DSM Directive, obligating content sharing platforms and other licensees to inform authors about the modes of exploitation, revenues generated and remuneration due, is particularly ill fitting for UGC-heavy gaming and metaverse environments – even if it does come with some flexible limitations that take into account the nature of the sector in question and the revenue relevance of the licensed works.

All eyes on the terms of service

The uncertainties arising from the divide between copyright protected UGC and lesser forms of digital content, the lack of a universal legal framework for digital creations, and the complexity of video game environments all place a laser focus on the terms of service and policies of gaming platforms, as the most flexible and appropriate framework for regulating the creation, dissemination, transfer and deletion of digital creations. While terms and conditions have been around for a long time, they have historically often been overly tilted in favor of the platform operator, as well as being written from a US-centric perspective. This has been changing fast in recent times, with terms becoming more user‑centric and permissive, allowing users to freely share and commercially exploit gameplay streaming, Let's Plays (a video (or screenshots accompanied by text) documenting the playthrough of a video game, often including commentary and/or a camera view of the gamer's face), and walkthroughs, and sometimes even to take their digital creations off platform to use and exploit them in other digital environments.

Such a permissive attitude becomes more complex the more different creators come together in a digital environment: Should a gaming platform be able to exploit user-generated content to promote the game? Should users be able to create Let's Plays like they are used to, even if these may well depict the – potentially copyright protected – UGC of others? How should an infringement notice be actioned if it relates only to a part of a complex piece of UGC that was the result of co-creation by several users, or that contains proprietary IP of the game publisher? These examples pinpoint some of the complexities arising in a multi-stakeholder digital creation environment. Content-sharing platforms profit from prolific creation of user-generated content, so it lies in their own best interest, and that of their users, to put in place robust and fairly balanced terms of service that govern the interactions of creators and the ownership and transfer of their creations. 

Among others, the following questions should be considered and addressed:

• What licenses must be given by users and by the platform operator in turn, so that the co‑creation ecosystem can flourish in an environment of trust? Should platform operators be able to use user-generated content in other contexts, such as across games, or to sublicense it? Should users be able to commercially exploit UGC and gameplay for which they have used the platform’s resources? 
• How can users be protected when they transfer and trade UGC? 
• Should, or must, users receive remuneration for their UGC from the platform in certain circumstances? Is it possible to measure which content generates which portion of revenue? What is “appropriate and proportionate remuneration” in an environment with hundreds of thousands, sometimes even millions, of creators?
• Should there be room for individual contracts with certain super-users or should all be treated equally under the terms of use? Does the platform want to leverage the option of ordering specific content from select users?
• How can platforms and users most effectively identify and combat infringements within the parameters of the newly emerging regulation, including the EU Digital Services Act, which is set to establish a new gold standard for content moderation and transparency requirements? Which voluntary content moderation measures and upload filters should a platform put in place?
• How will the fast-growing use of AI, and corresponding emerging new layers of regulation, impact content creation, content moderation, and questions of ownership?
• To what extent is it desirable and legally practicable for users to build on existing content of other stakeholders within the digital environment when they create UGC? Can terms and policies address all repercussions of such co-creations appropriately?
• And the ultimate question it all boils down to: How does a balanced, fair, safe and transparent environment of rights and obligations between the platform operator and its users look like?