The Gaming Theatre Company: players, gameplay, performance and the law

Abstract

This article proposes arguments proving that the act of playing a video game may attract copyright protection in the context of European intellectual property law. This article explores this from a multidisciplinary perspective including performance studies and EU copyright law. The increasingly popular practice and industry of ‘public gaming’ is suggesting that playing video games is now enriched with elements belonging more to musical and recitative performances. However, while actors and musicians’ performances constitute undeniable bricks of the creative process in presentations to the public, there is no such thing called ‘video game performance’ or ‘gaming performance’. The article suggests that, under certain conditions, players’ agency is able to generate a multi-layered meaning among players, audiences and the game.1 Therefore, after building a theoretical framework where gameplays are featured by theatrical performance qualities, the article proposes a definition of ‘public gaming performance’. After that, it uses such a definition to suggest that certain public gameplays, as well as being public performances under the performative studies umbrella, have everything they need to enjoy copyright protection under EU copyright law. On the one hand, then, this article uses theatrical models to shape gaming as a performative activity. On the other hand, it analyses the legal structures and mechanisms preventing game stream from attracting copyright protection while providing the reader with observations on the main obstacles to the full empowerment of players as performers.