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When Players Become Developers – A Study on Copyright in Game Modifications and the Practice of Acquiring Such Rights through an End User License Agreement

13.3.2017, Maisteritutkielma

In the gaming industry, a decentralized form of content creation leveraging the creativity of players has gained significant traction during recent years. Increasingly, players are involved in not only the consumption, but also the production of game content through various practices collectively referred to as “game modding.” In this study, the practice of creating computer game modifications (“game mods”) is examined from the viewpoint of Finnish copyright law and, complementarily, contract law.

The purpose of the study is, first of all, to analyze whether and to what extent player-made game mods may constitute original expression in which copyright subsists according to the law. In that regard, it is also considered whether the rights in game mods may be independent of the copyright in the original computer game. Secondly, this study examines the practice of acquiring rights in player-made creations through assignment or license clauses included in the standard terms associated with a computer game, i.e. the End User License Agreement (EULA). This contractual practice is, in particular, examined in light of the Finnish doctrine on standard form contracts as well as the doctrine on unfair contractual terms.

Under copyright law, the products of game modding are subject to the same requirements for protection as any other subject matter. Therefore, those player contributions are protected by copyright, provided that they are original in the sense that they constitute their author’s own intellectual creation. In this light, many kinds of modding related creations such as in-game avatars and gameplay levels can reach the threshold for copyright protection. Whether or not such player contributions are protected independently of the original game or as derivative creations is a matter that needs to be determined based on the particularities of each case. On the abstract level, neither alternative can be excluded. At the same time, many innovative or valuable features of game mods fall outside the scope of copyright protection. These features include inter alia gameplay mechanics and concepts for game modes.

Nonetheless, the fact that game mods are, at least to some extent, protected by copyright means that those rights need to be dealt with in the player–developer relationship. This is typically accomplished through the EULA. In that respect, Finnish law imposes both formal and material minimum requirements and limitations to how copyright can validly be transferred from players to the developer in such a context. From the viewpoint of the doctrine on standard form contracts, a standardized assignment or license clause included in a EULA is only likely to become binding on a player, if she is actually notified of the existence of the term and provided the opportunity to become acquainted with it prior to the conclusion of agreement. On the other hand, a player-to-developer copyright transfer is only unenforceable for material reasons if it is “unfair” in the meaning of Section 36 of the Contracts Act. In principle, such a transfer of copyright could be deemed unfair if it is significantly imbalanced. This might be the case in situations where the EULA sets out an exceptionally broad transfer of rights or where the player’s contributions turn out to have exceptional value.

In practice, it is probable that standard terms are accepted as enforceable as long as certain minimum requirements are observed. Further, Finnish courts of law have, in practice, demonstrated a reluctance to intervene in transfers of copyright based on unfairness. Thus, it is found that, while certain requirements and limitations need to be observed, transfers of copyright executed through a EULA are likely to be generally valid under Finnish law. Conversely, this means that it may be difficult for players to challenge the transfer of copyright executed under a EULA. It is, however, unclear whether this is in practice a significant inadequacy in a player’s legal position. For instance, it is likely that some of the most “unfair” situations are addressed and resolved through other means, such as by the developer subsequently recruiting a particularly accomplished modder.

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