This article is written by OLUWABUKOLA BENEDICTA ONI, UNIVERSITY OF IBADAN, LAW, 500 LEVEL during her internship at LeDroit India
ABSTRACT
Technology has achieved a great feat in the entertainment industry, and one such is the creation of video games played on PCs, mobile devices, consoles (PlayStation, Xbox and Nintendo), and virtual reality (VR) systems. A video game is an electronic game played on a screen, involving user input (controller, keyboard, etc.) for interactive audiovisual feedback. Popular examples of video games are Call of Duty, Fortnite, Roblox & Minecraft, among others.
KEY WORDS: Video Game, Streaming, License, Twitch, YouTube, Digital Entertainment.
INTRODUCTION
Video game streaming is no more just a niche hobby but now a dominant segment of the global entertainment economy. According to game streaming market summary by Grand View Research, it says “the global game streaming market size was estimated at USD 10.85 billion in 2024 and is projected to reach USD 31.63 billion by 2033, growing at a CAGR of 12.9% from 2025 to 2033.
The market growth is primarily driven by the rising adoption of cloud gaming platforms, growing demand for low-latency interactive streaming, rapid expansion of esports and competitive gaming content, increasing monetization opportunities for creators and streamers, widespread penetration of high-speed internet and 5G networks, and growing investments in edge computing to support high-quality real-time gameplay streaming.”
The expansion of video game streaming has altered how games are consumed, monetised and regulated. Gaming now stands as one of the most profitable entertainment industries worldwide. Market research published by Newzoo places global video game revenue at over USD 184 billion in 2023, a figure that exceeds the combined revenues of the global film and recorded music industries. This growth has been driven not only by game sales, but also through secondary markets built around content creation and live broadcasting.
Streaming platforms sit at the centre of this shift. Twitch continues to dominate live gameplay broadcasting, reporting average concurrent viewership in the low millions across daily live sessions during 2024. YouTube Gaming, operating across both live and recorded formats, reported over 100 billion hours of gameplay watch time in 2023. These figures demonstrate that gameplay streams attract sustained mass audiences rather than isolated viewers, positioning them as a mainstream form of digital entertainment.
Furthermore, the economic nature of streaming distinguishes it from the conventional gaming. Popular streamers like Kai Cenat, Ibai, and Shroud, to name a few, make money from advertisements running on these platforms, subscriptions, sponsorships, and donations from their fans. Moreover, in several instances, the streamer complements or supports full-time occupation, including timings and audience analysis, alongside business transactions. In these respects, the streamer takes on a more prominent role, akin to a broadcaster or broadcaster-like entity, and less like an individual who consumes a game.
This creates a legal tension that intellectual property law must address. The video game remains as a work protected by copyright law. The act of live streaming or uploading gameplay involves the public communication of audiovisual material that belongs to publishers and other rights holders. While players receive access to games through licence agreements, those licences rarely grant express permission to broadcast gameplay commercially. The question arises whether widespread industry tolerance amounts to implied permission or whether streaming persists only at the discretion of rights holders.
Copyright law becomes central at this point. It operates as a mechanism for allocating control over commercial exploitation. Interestingly, right holders rely more often on the permission and restriction of streaming through platform rules and private licenses rather than, full reliance on litigation. Enforcement has shifted away from courts toward automated systems operated by Twitch and YouTube, marking a significant change in how copyright authority is exercised within digital entertainment markets.
This article seeks to clarify whether video game streaming on platforms such as Twitch and YouTube operates as a lawful use of copyrighted works or depends on the discretionary permission of rights holders. It discusses on how traditional copyright principles governing reproduction and communication to the public apply to gameplay broadcasts that attract mass audiences and generate commercial revenue. It also considers the growing reliance on platform rules and publisher policies in place of statutory guidance, and evaluates the implications of this shift for legal certainty and market control within the games industry.
COPYRIGHT PROTECTION IN VDEO GAMES UNDER UK AND INTERNATIONAL LAW
Video games, though exist within copyright law, are not protected as single, unified works. Under the Copyright, Designs and Patents Act 1988, protection arises through the individual elements that make up a game. The underlying source code qualifies as a literary work. Visual characters, environments and graphic interfaces attract protection as artistic works. The musical works and recordings synchronized in the gameplay qualify for protection, and the moving images perceived in the process of play qualify for the definition of a film under the law. This complex system reflects the creative work achieved in the modern development of games and enables the law of copyright to adapt to technological development.
International copyright treaties support this paradigm. Under the Berne Convention, copyrighting countries have the obligation to protect literary and artistic works and ensure that authors have the right to control the public communication of those works. Meanwhile, the TRIPS Agreement further strengthens this obligation regarding the enforcement and standards expected to ensure that the online use of protected works is regulated. This means that video games are protected adequately globally and even in the online distribution and gaming arena. This is especially important because live gameplay is streamed all over the world and at times to people outside the country from which the game is purchased. Consumer access is usually granted through end user licence agreements rather than outright sale. These licences consistently emphasise that ownership remains with the rights holder and that use is limited to personal gameplay. Restrictions on reproduction, public performance and commercial exploitation are common features, even where such terms are rarely read or negotiated.
Under the UK law, numerous exclusive rights exist in gameplay streaming. Examples of these are reproduction right in captured gameplay footage, including temporary copies created through streaming software and platform infrastructure. Both live broadcasts and recorded uploads are communication to the public, a right interpreted broadly in UK and European case law to include digital transmissions made available to large and indeterminate audiences. Where streamers add overlays, commentary, or edited video, issues may also arise regarding adaptation, depending on how transformative those added elements are.
This cumulative engagement of rights illustrates why the legal implications of gameplay streaming are raised even though this practice has been normalized. Each instance of gameplay streaming involves the continued utilization of the protected-expression rights that are subject to the control of copyright unless an exception applies. In the absence of an exception for gameplay streaming, the existing body of copyright applies to a practice that has outgrown the original intentions of the legislation.
IS VIDEO GAME STREAMING INFRINGEMENT OR LICENSED USE
The legal character of gameplay streaming turns on a simple but unsettled question. Does the act of broadcasting gameplay amount to copyright infringement, or does it fall within permission already granted to players through access to the game. Copyright doctrine offers no automatic accommodation for popularity or industry custom. Public dissemination of protected audiovisual material remains subject to authorisation unless an exception or licence applies.
Gameplay streaming differs sharply from private play. Streams transmit continuous audiovisual output to large and indeterminate audiences, often accompanied with commercial reward. Benefits such as advertising fee, paid subscriptions and sponsorship arrangements place streaming within the category of commercial exploitation rather than domestic use. UK copyright law treats communication to the public as a core exclusive right, interpreted broadly in judicial authority to include online transmissions accessible beyond a closed circle. Two reasons have been used to reinforce the classification of this activity as public rather than personal which are scale and revenue enjoyed by popular streamers.
Image Credit: EMEET
In practice, many streamers rely on an assumption of implied permission. This assumption draws support from the conduct of publishers who actively promote streaming culture through early access programmes, influencer partnerships and official community events. The argument suggests that purchasing a game carries with it permission to show gameplay to others. Copyright law, however, approaches implied licences with restraint. Permission must arise from clear conduct referable to the specific use in question. Access to play does not automatically grant the right to broadcast the work for profit, especially where licence agreements expressly reserve control over public performance and commercial use.
Publishers have responded by being more inclined to policy instruments rather than litigation. Hence, publicly available gameplay guidelines posted through official websites grant conditional permission to stream. Riot Games allows monetised streaming subject to content restrictions and brand integrity rules. Nintendo historically limited monetisation and required participation in a creator programme, later revising its position after sustained criticism from content creators. These policies grant unilateral licences rather than statutory rights. Also, they can be revoked and enforced through platform mechanisms rather than courts.
Due to the lacuna of legislative protection, reliance is placed on private ordering. For instance, UK copyright law contains no exception that legitimises entertainment focused gameplay broadcasts. In the aspect of fair dealing, its provisions cover criticism, review, reporting of current events and parody, yet most live gameplay streams do not satisfy those purposes. As a result, legality relies less on doctrine and more on tolerance practiced through publisher policy and platform enforcement practices.
This arrangement produces structural instability. This instability may cause a stream to remain available for years without challenge, only to face removal following a policy change or automated detection process. From an intellectual property perspective, this reveals a diversion from public adjudication to discretionary permission. Video game streaming persists not because infringement has been resolved doctrinally, but because rights holders perceive economic advantage in selective allowance such as promotion while retaining legal leverage.
PLATFORM GOVERNANCE, COPYRIGHT ENFORCEMENT, AND PRIVATE ORDERING
Video game or gameplay streaming exists within a regulatory environment shaped less through courts and more through digital platforms. Twitch and YouTube operate as private rule makers whose internal systems determine what remains visible, monetised or removed. Their terms of service incorporate copyright obligations while reserving wide discretion over enforcement outcomes. For streamers, these contractual rules exert greater influence over daily practice than statutory provisions within the Copyright, Designs and Patents Act 1988.
Both platforms fall back on the liability protections stemming from the E Commerce Directive, retained within UK law after withdrawal from the European Union. These limit platform liability for user-generated content where takedown action follows receipt of infringement notices. This legal incentive structure favoring rapid removal over measured legal assessment has meant that automated detection systems are central to enforcement. YouTube Content ID scans uploaded material against a database of registered works, and Twitch deploys audio recognition tools which mute or remove streams where protected sound recordings are detected. Transparency reports available publicly show that copyright-related complaints are among the major reasons why content gets taken down on both platforms annually.
Such a policy vests powers with those who enjoy the rights as well as the online platforms, leaving the streamers vulnerable. A complaint alone can cause a streamer to lose revenue sources associated with subscription payments, advertising, or sponsorship commitments. A repeated complaint can even invoke a penalty regarding suspension or termination despite the content being contested. There is no formality regarding judicial review at this level. The appeal procedures are time-pressured with minimal public disclosure.
Commercial imperatives further strengthen this dynamic. This is because content in games ensures prolonged viewing and engages viewers to the point of earning revenue for the platforms in advertising. At the same time, quick compliance with the requests of rights owners ensures that the platform is not subject to secondary liability. This is because of the potential risks of violating intellectual property rights.
From the intellectual property standpoint, the function of the authority with regard to copyrights changes with the introduction of platform governance. Judicial construction is replaced by filtering by algorithms and contractual control. Issues of communication of the public or the license become the subject of internal bodies with no precedent value or transparency. Such a privatization of authority poses potential risks of predictability or proportionality with regard to the control of copyrights. The essence of gameplay streaming becomes the function of a combination of statutory law that gives the authority formally, while the reality is imposed by platform management.
FAIR DEALING, TRANSFORMATIVE USE, AND THEIR LIMITS
There is little scope for the unauthorized use of copyrighted works under the exceptions provided by the law, although live game streaming is not easily categorizable under these exemptions. Fair dealings permitted by the law under the categories of critique, review, reporting actual events, parody, or pastiche are subject to being driver-defined rather than being result-driven. Popularity, creativity, or economic benefit do not convert unauthorised use into lawful use where the statutory purpose remains absent.
Majority of video game streams focus on entertainment. The broadcast centres on the experience of play rather than assessment of the work. Commentary often accompanies streams, though this rarely rises to sustained criticism or review of the underlying game. The courts in the UK have always treated the fair dealings defense as a narrow defense and not merely as incidental comments superimposed on substantial reproduction. It is hard to discern the continuous display of the audiovisual work in the course of a live transmission as being proportionate to a permitted use.
Parody and pastiche offer little shelter in this setting. While some streamers exaggerate or stylise gameplay, the core audiovisual content remains intact. The exception allows humouring of a work, and not broad transmission with light comments. Use of this exception has been further limited by the statutory requirement that it has to be a fair deal, especially when it involves financial profit for the broadcast. Monetization affects the nature of the act and tips it against fairness under UK law.
Comparative reference to United States law provides a striking contrast. American courts utilize a flexible fair use doctrine that stresses transformation, while the commentary layered onto video game may qualify as transformative within that system. UK law rejects such an approach: Parliament has declined to adopt a general transformative defence, instead favouring certainty over elasticity. As such, live streamers on international streaming sites enjoy irregular levels of protection in terms of their jurisdiction.
However, the inflexibility of the doctrine has some implications for the streamers. “There is no provision in the law that a statutory exemption must necessarily include a provision concerning the exemption’s duration.” Enforcement decisions rest instead on publisher tolerance and platform discretion. Automated detection tools do not assess purpose or fairness. They respond to presence of protected material. The absence of a clear statutory route leaves gameplay streaming liable to unpredictable removal, even where cultural norms show acceptance.
Fair dealing remains not suited to modern video game broadcasting. The exception protects commentary on works, not their sustained public exhibition. Until legislative reform addresses this mismatch, video game streaming continues to exist outside formal statutory permission, sustained through economic convenience rather than legal recognition.
CASE LAW, ENFORCEMENT PATTERNS, AND INDUSTRY PRACTICE
Judicial authority addressing video game streaming remains limited within the United Kingdom. No reported decision has squarely resolved whether broadcasting video game without express permission constitutes infringement. This absence has not created neutrality. Instead, it has allowed enforcement practices to develop outside formal adjudication, shaped through industry behaviour and platform systems rather than judicial reasoning.
Existing copyright case law nevertheless provides guidance. The UK courts have a broad interpretation of communication to the public, especially when protected content is published in an indefinite manner with profit-making as a motive. In Football Association Premier League Ltd v QC Leisure, the Court of Justice has affirmed that online communication of protected audiovisual content to a large number of people constitutes exclusive right activity regardless of technological creativity. While this precedent was set regarding sport communications, this argument applies a fortiori to online video games communicating protected content continuously before a large audience.
Enforcement trends confirm this doctrinal alignment. Platform transparency reports indicate that copyright complaints form a dominant category of content removals. Google’s copyright transparency data shows that millions of takedown notices are processed annually across YouTube services, with gaming related content forming a visible share of claims linked to audiovisual works and embedded sound recordings. Twitch reports a similar pattern, with copyright complaints accounting for a substantial proportion of channel suspensions and content muting actions. Music contained within video game streams remains a frequent trigger for enforcement, even where publishers tolerate visual display of game content.
The industry standards are indicative of strategic acceptance rather than a legal waiver. Large publishers do not frequently resort to legal action against online streamers. This is because legal action may have negative publicity implications for the party filing the lawsuit, including degradation of the marketing environment established through grassroots promotion. This regulates the degree of freedom the streaming service enjoys with recommendations from the publisher. This approach preserves control while avoiding judicial scrutiny.
The absence of case law has practical consequences. Streamers operate without authoritative guidance on licence scope or permissible use. Platforms act conservatively to preserve safe harbour protection, favouring removal over adjudication. Rights-holders have flexibility to change policy according to commercial agendas. There is a lack of legal certainty, not because the law is unclear, but because it is enforced outside of courts.
In intellectual property terms, this trend represents displacement, and not resolution. The legal system provides legal right, even as the ensuing implementation is in untroubled administrative bodies, and certainly free from precedent and means nothing by way of merit in relations to rigidity in policy. In other words, until the judiciary comes to a determination regarding streaming in video games, the trend in most cases continues to establish by silence the parameters within which the legal activity takes place.
CONCLUSION
Video game streaming has settled into everyday digital life, yet courts have remained distant from it. In the United Kingdom, no reported decision has confronted gameplay streaming as a discrete legal issue. This absence does not signal approval. It reflects judicial caution. UK courts have instead developed a firm approach to digital communication of protected works, treating online transmission to large audiences as falling within copyright control. There is an implication from the reasoning in broadcast and signal cases that the Gameplay Steam streams would not get any favorable consideration in court. Silence, rather than any comfort from the law, presently exists.
The Nigerian judiciary is in a comparable situation. The Copyright Act of 2022 widened the ambit of audiovisual works, and the remedies available improved, but nothing in the Act touched on gameplay stream broadcasting and user-created broadcasting. Current Nigerian cases revolve around the typical infringement action regarding film, music, and broadcasting signals. The definition within the Nigerian legislation regarding communication to the public nearly exactly replicates UK doctrine. In a UK court case regarding video game streaming, there would be no adaptations to existing precepts. Enforcement practice, however, remains shaped more through platform systems and economic realities than judicial interpretation.
Indian courts have shown a greater willingness to accommodate public interest arguments within copyright disputes. Section 52 of the Copyright Act 1957 has received flexible interpretation in certain settings, particularly where rigid enforcement would hinder access or expression. That flexibility has limits. Indian courts have not recognised entertainment driven broadcasting as protected use. Fair dealing, meanwhile, is still considered in relation to statutory purpose, and live streaming of video games is seldom likely to fall within this category. There is therefore no reliable basis in Indian case law supporting unauthorized streaming, no matter how well it is received culturally and regardless of the size of the platforms involved.
In all these countries, there has been an emerging trend. The courts have never legitimized streaming for playing without authorization. Rights holders retain control. Platforms manage risk. Streamers operate within permission that can be withdrawn without warning. The system functions, yet it lacks stability.
Legislative reform remains an open question. Limited statutory recognition, revenue based thresholds, or collective licensing models could introduce certainty without eroding creative investment. Until such intervention occurs, gameplay streaming survives through tolerance rather than entitlement. Copyright law has not failed. It continues to allocate control with precision. The uncertainty arises from judicial restraint rather than doctrinal weakness. Courts in the United Kingdom, Nigeria, and India have chosen distance. Whether that distance remains sustainable grows harder to defend as gameplay broadcasting continues to expand in scale and permanence. Thus, streamers do not need license agreement to stream on Twitch or YouTube.
