The Relationship between ADR and Videogames

THE RELATIONSHIP BETWEEN ADR AND VIDEOGAMES

Alternative Dispute Resolution has a close relationship with the videogaming industry when it comes to issues of Intellectual Property.[1] Specifically, disputes concerning IP rights within videogames have increased in recent years.[2] Moreover, litigation has become too expensive and potentially damaging for the image of gaming companies, for this reasons, the use of ADR has proved advantageous.[3] An example is an ADR Directive issued by Malta Gaming Authority which states that Business-To-Consumer (B2C) licensees must ensure the availability of procedures for players  to refer complaints to ADR entities.[4] According to art. 4 of the Directive, B2C licensees must refer their players’ dispute to the ADR entity directly and not to Malta Gaming Authority.[5]

The most popular choice of Alternative Dispute Resolution method is Arbitration.[6] In fact, parties agree on arbitration clauses, in order to establish how the dispute is going to be handled. Specifically, an arbitration clause includes the governing law, seat of arbitration, number of arbitrators, the language of the dispute, and the rules of procedure.[7] It is important for parties to agree on these elements as there is a high likelihood that the dispute holds an international, and potentially multilingual, characteristic.[8]

An instance where arbitration is widely used is the eSports industry.[9] The necessity arises from the issue of corruption and cheating in the industry.[10] For example, arbitral awards were issued to Riot Games, the publisher of “League of Legends”, because a company bypassed the “League of Legends” anti-cheating system. Consequently, there was a violation of the US Digital Millennium Copyright Act (“DMCA”).[11] For this reason, in 2016, the World eSports Association established the Arbitration Court for eSports (“ACES”)[12], which aims to enforce the tournament rules and regulations while considering the players’ best interests.[13] For this purpose, the ACES covers a wide range of issues, for example, contract disputes, prize money pay-out, financial misconduct and player representation.[14]

Nevertheless, since many disputes originate online, there is an increased need for less traditional ADR methods. For this purpose, Online Dispute Resolution can respond to this need.[15] In fact, ODR employs the technology available today in order to facilitate the settlement of the disputes.[16] An example is Online Arbitration, where hearings take place via videocalls or the upload of evidence.[17] The global forum for Intellectual Property, called World Intellectual Property Organization (“WIPO”), is responsible for the development of this legal field.[18] WIPO operates under the WIPO Convention, established in 1967, and aims to improve the Intellectual Property system for enabling innovation and creativity for all.[19] Thanks to this organization’s efforts, Online Arbitration has gained time and cost efficiency, therefore this ODR method can be a suitable option for the videogame industry when settling Intellectual Property disputes.[20]

[1] Kalle Sebastian Nummelin, ADR and The Rising Tide of Copyright Litigation in the Videogame Industry (Tillburg University, 2020) 4 para 1.1

[2] Kalle Sebastian Nummelin, ADR and The Rising Tide of Copyright Litigation in the Videogame Industry (Tillburg University, 2020) 5 para 1.2

[3] Ibid

[4] Christopher Formosa, “MGA Publishes Alternative Dispute Resolution (ADR) Directive” (2018) Malta Gaming Authority (MGA) < https://www.mga.org.mt/mga-publishes-alternative-dispute-resolution-adr-directive/ > accessed on 20 April 2021

[5] Ibid

[6] Subodh Asthana, “Essentials of a Video Game Licensing Agreement” (2020) Pleaders Intelligent Legal Solutions < https://blog.ipleaders.in/video-game-agremeent/ > accessed on 24 April 2021

[7] Michael Mcilwrath and John Savage, International Arbitration and Mediation: A Practical Guide (2010,Kluwer Law International BV) Appendix 4 413

[8] Subodh Asthana, “Essentials of a Video Game Licensing Agreement” (2020) Pleaders Intelligent Legal Solutions < https://blog.ipleaders.in/video-game-agremeent/ > accessed on 24 April 2021

[9] Ryan Boonstra, Player 3 Has Entered the Game: Arbitration Comes to the eSports Industry (Volume 10 Issue 1, Arbitration Law Review, 2018)

[10] Ryan Boonstra, Player 3 Has Entered the Game: Arbitration Comes to the eSports Industry (Volume 10 Issue 1, Arbitration Law Review, 2018) 105

[11] Ibid

[12] Ryan Boonstra, Player 3 Has Entered the Game: Arbitration Comes to the eSports Industry (Volume 10 Issue 1, Arbitration Law Review, 2018) 104

[13] Ryan Boonstra, Player 3 Has Entered the Game: Arbitration Comes to the eSports Industry (Volume 10 Issue 1, Arbitration Law Review, 2018) 107

[14] Ryan Boonstra, Player 3 Has Entered the Game: Arbitration Comes to the eSports Industry (Volume 10 Issue 1, Arbitration Law Review, 2018) 108

[15] Kalle Sebastian Nummelin, ADR and The Rising Tide of Copyright Litigation in the Videogame Industry (Tillburg University, 2020) 29 para 3.3.1

[16] Ibid

[17] Kalle Sebastian Nummelin, ADR and The Rising Tide of Copyright Litigation in the Videogame Industry (Tillburg University, 2020) 35 para 4.1.4

[18] Ibid

[19] World Intellectual Property Organization, “Inside WIPO” WIPO < https://www.wipo.int/about-wipo/en/ > accessed on 27 April 2021

[20] World Intellectual Property Organization, “On-line Arbitration” WIPO < https://www.wipo.int/amc/en/arbitration/online/index.html > accessed on 27 April 2021