Tolerated Use 2.0: User-Generated Content, No Action Policies, and Controlled Monetisation of Fan Works in the Video Game Industry

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    Fan-made derivative works, licensed and unlicensed, are common on the internet. As evidenced by the best seller and box office sensation, Fifty Shades of Grey, which began as Twilight fan fiction, fan fiction is growing in popularity. Fan art, ranging from gallery-quality paintings to small t-shirt companies, are ubiquitous. Remixes and sampled music are more popular than ever, especially in hip-hop, rap, and electronic dance music. Finally, in the videogames industry, fan works are often encouraged as a means of generating and maintaining interest in particular games. User-generated content (UGC) is a term often used to describe this broad category of amateur, pseudo-amateur, and occasionally professional body of creative works. Tim Wu described this evolving form of expression fifteen years ago as ?a giant grey zone in copyright, consisting of millions of usages that do not fall into a clear category but are often infringing.? Wu went on to note that ?the critical aspect of this phenomenon are uses of works that are of a mass quantity and low value per transaction.? The law on fair use in America and its relative counterparts elsewhere are, at best, ambiguous with respect to user-generated content and, at worst, criminalise these expressions. With the exorbitant costs associated with defending against a copyright infringement action, especially in the United States, coupled with the low economic value of each individual work, there is little incentive for litigation. Therefore, there are very few recent judicial opinions related to this body of works. However, in an attempt to bolster relationships with fans and users while retaining firm control over copyright works, corporate content owners have taken advantage of the current legal climate and sought to establish rules that function as pseudo-laws in the form of user-generated content policies. These ?no-action policies,? a term coined by Wu as he suggested their inception over 10 years ago, serve as public statements by content owners outlining to users the boundaries within which they may use copyrighted material to make new works. In other words, they outline potential uses of copyrighted content that will be tolerated. Whether these policies reflect the law as it would be interpreted by a judge is dubious at best, but they generally remain unchallenged. The video game industry has grown to be one of the most prolific users of no-action policies to establish boundaries for secondary uses of their copyrighted content. This is likely due to a perfect storm consisting of creative and active fanbases, the value added by this secondary creativity to its own business, and the efficient means of creating these policies via the licenses already required for the industry to operate. This chapter will analyse UGC in the video game industry, the relevant law and how it might be applied to such creativity, industry perceptions and actions to clarify legal positions on UGC, and how tolerated use of UGC is evolving. It consists of four sections. Section one will outline what tolerated use is and how Tim Wu envisioned it in 2007. Section two will outline the legal implications of tolerated use, how policies can potentially expand and constrict users? rights depending on jurisdiction, and generally the legal implications of using what Wu called ?no-action policies? to bridge gaps in copyright protection. Section three will outline how the video game industry currently implements tolerated use policies to shape users? rights in distinct categories of potential infringements. Section four argues that tolerated use has evolved beyond the goal of clarifying enforcement objectives into a method of creating new revenue streams through fan-cooperation and informal collaboration, a practice that I describe as ?controlled monetisation.? It will demonstrate first how this practice evolved outside of the videogame industry and then how videogame companies have adopted and modified its principles. Finally, this chapter will conclude with an argument that tolerated use and its evolution towards controlled monetisation tread lightly between collaboration and exploitation. Clarification and, in some cases, expansion of the law from legislatures is needed to solidify users? rights and avoid their dissolution.
    Original languageEnglish
    Title of host publicationResearch Handbook on Interactive Entertainment Law
    EditorsGaetano Dimita, Marc Mimler
    PublisherEdward Elgar Publishing
    Publication statusAccepted/In press (AAM) - 1 Aug 2023


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