Before seen only as recreational and amateur, the world of games currently experiences the phenomenon of professionalization, while observing the growth of an entire ecosystem around it. From the use of cutting-edge technology in live streaming (competitions) or new possibilities for developing software and gaming hardware (cloud gaming combined with 5G), passing through homeric constructions of game arenas specially designed for eSports until reaching sports betting platforms sponsoring athletes and sports teams, it is possible to say that “games are not played as they used to be.” The market, suddenly and today, is much larger than we were used to.
From this scenario, growth opportunities emerge as great as their legal challenges. The debates in the doctrine have been fueled by the negotiation practice and by the judicialization of controversies, so that the jurisprudence will certainly contribute to the construction of the theoretical field of this theme. Faced with this scenario, of course, the Law is triggered, and the games industry starts to create its own face, with specific demands related to its development.
In the labor sphere, for example, the existence of a labor relationship between clubs or managers of teams and athletes is discussed; in the sports sphere, the framing of eSports as a sports practice subject to sports regulation under the terms of the Pelé Law, which would provide greater legal protection to athletes, teams and professionals involved; in the civil area, the limits for the exploitation of image rights and the arena of athletes, as well as negotiation of sponsorship contracts for major events; intellectual property, in turn, can be assessed in the context of the commercialization of electronic games, software ownership and other issues related to technology of information. Finally, in the consumer sphere, attention must be paid to the considerable increase in demand for electronic games and frustrations in the provision of services and delivery of products.
In this sense, establishing the bases and foundations of this industry is one of the first steps towards immersion in its context - and, of course, to understand its legal aspects in order to think of the best solutions. Given this scenario, it is perfectly possible to state that the gaming environment, from the perspective of Law, can be understood in three large groups: games in general, games of chance (or gambling) and eSports. Each of them, therefore, has specific legal issues, sometimes completely different from each other.
In general, videogames can be understood as the amateur and recreational modality of games. With consoles or laptops, software based or not in the cloud, present in our pockets every day with mobile games, recreational games have had their legal issues mapped for some time. Just to exemplify, we can mention the development of a video game from beginning to end: along this journey, we discuss the rights of creators for the work (illustrators, designers, musicians), registrations before government agencies (INPI and ECAD , for example), ways of raising funds for small and medium projects, organization and definition of the corporate structure of the business, production and protection of derivatives of characters from games for the real world (for example dolls), among other issues.
In addition to the routine demands, it is important to say that the games market also involves a logistics chain, often international, to supply the high demand for components used in the manufacture of consoles, accessories, and other games, for example. In addition, when products are in fact released for sale, consumer challenges arise. In scarcity scenarios, when the transaction is made by marketplaces, they are almost instantly purchased by purchase bots (for resale). These are just a few examples of how the industry, by itself, already has plenty of legal debates.
However, there is much more to discuss. Starting with eSports, we are facing a new game modality linked to competition and the professionalization of athletes. It is, literally, the junction of the games industry with the sports and entertainment industries. From this combination appear transactions of billionaire values (sponsorships, image rights, broadcasts, etc.) and even new professions, such as presenters of eSports events, athletes, coaches of these athletes and even specialized press relations. The multidisciplinary nature of the challenges requires extensive legal knowledge for the various situations described: whether in labor, civil, or intellectual property law, among others.
Finally, we still have games of chance, which are expanding significantly, especially in lottery modalities, as with the enactment of Law No. 13,756 / 2018, which legalized the so-called “fixed-odd bets related to real events sports theme.” The text limits the exploitation of the economic activity of sports betting to private initiative in a competitive environment, imposing the need for regulation by Decree that, until now, has not been published. Thus, the exploration of this activity still requires care that can have civil and even criminal consequences if they are not addressed correctly in time.
It is well known, therefore, that the market for games is gigantic in Brazil, and in the world, and is still growing fast. Understanding the legal challenges and preparing to face them is an important part of the development of any industry, and that is why it is necessary to understand how the Law in fact relates to these specific demands. We then have the task of unlocking this growth potential and keeping it up, also considering its legal issues.
Carla do Couto Hellu Battilana
Claudio Coelho de Souza Timm
Patrícia Helena Marta Martins
Partners in Gaming & eSports area at TozziniFreire
Source: Showmetech
