Legal Opinion: A fair go for games, or “why you can go to jail for making gameplay videos”


By on June 19, 2014 at 11:34 am

Here’s a thing: Australia does not allow fair use of copyrighted materials. Sure, we have “fair dealing”, but it’s not the same. Not at all. Fair dealing is extremely restricted, and many activities you might think are OK, are actually illegal — such as creating gameplay movies and sharing screenshots, for example.

This year the Australian Law Reform Commission recommended that we switch to allowing fair use of copyrighted material. This would simply be a test asking if the use is fair, and whether it has any material impact on the copyright holder. However, Attorney-General George Brandis isn’t convinced, saying that it would possibly take income away from content creators (…like Fox News). This adds to his already questionable stance on piracy.

As with all piracy matters, it’s important to be informed on copyright, so today we’ll look at how fair use differs from fair dealing, and why gamers need fair use.


What are our current laws of fair dealing?

Australia uses a restrictive approach to determine what is fair dealing. Your use must fall into one of several narrow categories. These categories are:

  • Research and study
  • Review and criticism
  • News reporting
  • Legal advice
  • Parody and satire
  • Personal use of audio visual material (timeshifting and format shifting—like recording a TV show, or changing a format from .wav to .MP3)
  • A few other things, mostly irrelevant (like special exemptions for schools)

Unfortunately, these are as restrictive as they sound. Many common gaming activities will not fit into a category. Just say you want to video a boss fight in your favourite MMO so fellow players can learn the mechanics. Under Australian copyright law, what you just did is illegal… unless, halfway through, you launched into an expletive-ridden tirade against the developer’s decision to not have Australian servers. Then it would fall under criticism and be fine.

The example is more than a joke. Publishers do make a bit of money from releasing official strategy guides. The growth of Youtube has—possibly—reduced the profits from these written guides. But at the same time, user-created guides enhance the community aspect of MMOs, which is what also keeps people playing (and paying). No publisher in their right mind is going to claim community-created resources are infringements.

Copyright Symbol

Sensible categories promote respect for law

Naturally, there’s a difference between you publishing a gameplay video, and a company making money off eSport competitions without paying the publisher of the game used. In Korea, where eSport broadcasting is actually A Thing, this is a real issue. Blizzard has licensing agreements for the broadcasting of StarCraft 2. But by far the majority of copyright infringement is benign. This creates two problems.

First, there is a danger that any proposed “three strikes” rule, such as the one our Attorney-General wants, could trip up innocent bystanders, like those who create gameplay videos. There are currently no safeguards in place to ensure this will not happen. Copyright infringement is copyright infringement, making the three strikes proposals extremely far reaching when combined with our limited fair dealing.

Second, laws that don’t keep up with technology are at risk for being disrespected and ignored. If people are trained to laugh at copyright infringement because what they do (like creating gameplay videos) does not have any impact on the original rights holder, this tends to dull the laws when they should actually count. If you want someone to stop downloading pirated games, you need them to respect copyright law, and not have the view that it is OK to strike back because it’s too far reaching in the first place. This can only happen by treating people with respect and recognising that not everyone is out to rip off creators.


Arguments against fair use are scaremongering

Of course, not everyone agrees with me. The opposing views usually take the form of worries that it would hurt content creators and create legal uncertainty. The argument goes that because it takes about a million dollars to even respond to copyright litigation, replacing the defined categories with fair use would hurt those who want to enforce their rights.

However, defined categories hardly help certainty or reduce legal costs. With technology rapidly evolving, courts and legislators have to constantly ask themselves whether new uses are covered by the existing categories, or whether they need to create yet another new category. Legal costs will never be low however you go—litigating most piracy is extremely unprofitable for content creators. That’s why DRM is so widespread—prevention is better than cure.

The direction of our copyright laws is a worry. Not only are they dragging behind most of the world, but our legislators seem focused on red herrings and use weak excuses to avoid rectifying the situation. Most fair use of content would not make publishers any money—that’s why we don’t see most publishers monetize YouTube gameplay videos. They would if it were profitable, but they don’t. It’s perhaps the best illustration that our copyright laws, which have the sole objective of allowing monetisation of content, are too narrow. Where no monetisation exists, copyright use should be fair.

As a final note, this will be my last Legal Opinion here, at least for the foreseeable future. Market forces have me focusing on other business. It’s been fun, and I’ll be sure to rant on the forums should BioWare write out Leliana from Dragon Age: Inquisition.

10 comments (Leave your own)

Am I the only one finding out AG to be not only lacklustre but basically the opposite of what his job title is MEANT to be? Seems like he’s pushing his own agenda (see Community Legal Centres) whereas he should be a fair representation…

Why we don’t have fair use like the US is beyond me.


Couldn’t your game play video come under review/criticism?


The Liberals have already announced who they serve and it’s Big Business. They don’t give a rats ass otherwise. The amount of times Abbott has said this as well as Hockey, highlights their priorities pretty starkly.

This change of legislation is logical and the previous limited view should never have been implemented (is it legal to limit peoples right to show others what they have done or how to do something?). Going through Australian legislation there are numerous examples of the nature of the Police State rather then the freedoms of the people. This biggest issue is that the government feels the NEED to legislate on more and more things instead of refine and remove pointless or downright abhorrent legislation introduced for the benefit of no-one other than business.

At the end of the day business won’t exist if there aren’t people to feed it.

Patrick Vuleta

Many gameplay videos aren’t really reviews though. There needs to be evidence of making a judgment on the material. Doing stunts in a Battlefield chopper isn’t. ;-P

Now I acknowledge that what I wrote here is the worst case scenario, but I think that it’s worth thinking about these edge cases just to highlight that our laws sort of depend on people going on “the vibe” of them and trusting no one will issue takedown notices or send them a fine. That’s pretty bad, and is open to future abuse, or at the least makes people disrespect them.


When you are reviewing a game though you don’t necessarily need to be critically judging it. A review can be a look at the game and how it plays, couldn’t this be done with a gameplay video?


Attorney-General George Brandis isn’t convinced

Remember that beautiful period of French history we were all taught in high school where the French rounded up the idiots in power and beheaded them can we do that please ? And if we do this guy gets my first pick for beheading… Every time something colossally stupid is said it comes from either him or Abbott

Back on topic. What about streaming ? do the same rules apply or is it different ?


Another classic news post.

Nobody gives a shit what you put on youtube besides youtube and anyone claiming rights to the video.

Australian government doesn’t track down people posting videogames on youtube.

These are just scare tactics to keep people from expanding their lifestyle, after all, the government cant make tax off you if you’re not earning a significant amount of money from your 9-5 job.

If i had the connection for it, i would stream to twitch every day, because i would find that fun, id like to see the government stop me.


stryker3216: Australian government doesn’t track down people posting videogames on youtube.

Sure and the NSA doesn’t listen to every conversation every person in the world has over the phone. It’s the potential for abuse that is disturbing.

Patrick Vuleta

I would regard companies using three strikes-style rules to make profits within the realm of possibility.

Last year, Nintendo forced uploaders of YouTube Let’s Play videos to put ads on their gameplay videos in an attempt to monetise them. Basically take them out of the realm of what many would regard as fair use, and into commercial dealings. Of course there was a pretty big backlash against it, but hey, didn’t stop them trying.

It becomes much easier to do something like that if fair use isn’t recognised.


I’m a recruiter for a large YouTube game only network and if you have anything slightly illegal on your channel you won’t get partnered. YouTube has its own system where content owners can report a video so its taken down for review which in its current state is complete bullshit as any idiot can claim “I’m EA” and take down a video. Only temporarily until it gets sorted but that can still happen.

But yeah people posting videos that publishers don’t want them to post don’t get partnered so they don’t make money themselves. Most publishers are quite lenient nowadays. Nintendo is still nazi about it. But if you want to monetize content either get partnered or just ask. Most publishers have means of getting a sorta deal that you can monetize their content. If you are with a registered gaming network you can do it without asking.

Nintendo are so damn weird when it comes to this sort of thing. No tend actually have their own network which they force you to join if you want to upload videos of their games. Sorta like press gangs. Join them or enjoy a copyright strike with all your Nintendo vids taken down.

The network pays off the publishers a small amount of money. But Nintendo are greedy bastards and want a larger share so they cut out the 3rd party network and make their own.

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