Entertainment Law is the broad general term for a practice area that is widely varied and that comprises film, television, radio, music, publishing, commercial theatre, multimedia, interactive media, and the visual arts. Within each of these sectors, practitioners engage in contract negotiations, financing, production, co-production, distribution, and tax law matters. In addition, there are the complementary areas of copyright, trademark, broadcasting, and securities law (financings) that serve to widen the scope of the practice area.
Canada’s Booming Esports Industry
Esports are organized, competitive—and often professional—videogaming. The Canadian market saw evidence of the growing relevance of esports in the landmark merger between Aquilini GameCo Inc. and Luminosity Gaming Inc., which was followed by an amalgamation with J55 Capital Corp and an arrangement with Enthusiast Gaming Holdings Inc. The transaction results in an entity called Enthusiast Gaming Holdings Inc., which now owns eight esports teams, 40 esports influencers, more than 100 gaming media websites, and more than 900 YouTube and Twitch channels.
As reported in Canadian Lawyer, this deal signals a wider trend in what is fast becoming a significant new industry. Global revenue has tripled over the last few years, and the trend is similar in Canada.1
There are esports leagues being established in Canadian cities, such as Norton Rose Fulbright Canada partner Rob Mason’s deal involving the Vancouver Titans and a deal by Gowling WLG’s Jason Saltzman, a business law partner and member of the firm’s sports and entertainment group, in which he represented OverActive Media Group in securing the Toronto Defiant Franchise, also in the Overwatch League, with home games to be played at Roy Thomson Hall.
There are also major tournaments being hosted in Canada, with the opening of the first esports-specific arena in Richmond, BC, and educational institutions such as the University of British Columbia and the University of Toronto are offering esports scholarships.
Susan Abramovitch, a partner and the head of Gowling WLG’s entertainment and sports law group, says esports has become more prevalent in the last few years. What she loves about it is that it’s “really a crossover between entertainment and sports.”
“When was the last time the world came up with a new form of entertainment or a new form of sport, let alone a combination of the two?” she asks. “I can see it in the securities world—where investors gather to find out about it; they’re very excited about it.”
Since gaming is what the younger generation spends its time doing, lawyers are predicting that there will be new examples of how esports is going to play out in terms of public market sectors and the legal world. While the demographic that is most into gaming skews young, it is widening to include both younger and older gamers. As the largest cohort grows into teenagers and young adults with more disposable income, it’s expected new companies will pop up that cater to their needs. Parents are also playing these games with their children at higher rates than before, and they are more likely to spend money on esports-related products.
Are Video Games Protected under Canada’s Copyright Act?
Gowling WLG lawyers addressed various entertainment law issues in 2018, including video games under the Copyright Act.2
In Canada, copyright subsists in every original literary, dramatic, musical and artistic work, in a performer’s performance and in sound recordings. While the Canadian Copyright Act does not identify video games as a specific type of work and the courts have not directly stated what type of “work” video games fall under, the courts have recognized that video games are protected under copyright.
The Copyright Act provides that the “author” of the work is the first owner of the copyright. The Copyright Act does not define the term “author.” Determining who the author is will depend on the specific facts of each case; however, in general, an author will be a person who exercises skill and judgement in the creation of the work.
Being the author of a video game does not necessarily make that person the author of the copyright-protected components incorporated into the game. Potentially, any development team member who has contributed to a video game could be considered an author of a copyright-protected work that is incorporated into the video game, assuming they have exercised skill and judgement in the creation of the work.
- Hendry, Mallory. “For the love of the (video) game.” Canadian Lawyer. February 3, 2020. https://www.canadianlawyermag.com/practice-areas/corporate-commercial/for-the-love-of-the-video-game/325744.
- “Rules of the Game (Part 1): Copyright Protection of Video Games in Canada.” Gowling WLG, August 20, 2018. https://gowlingwlg.com/en/insights-resources/articles/2018/rules-of-the-game-part-1/.