(Let's) playing by the rules: A choice of law rule for communication of copyright material from video games to the public,through Let's Plays

Several proposals have been made regarding a choice of law rule for ‘ubiquitous infringements’ (the unauthorised dissemination of copyright material online) but none have been implemented by national courts, which continue to struggle with the issue of what law determines whether ubiquitous infringements have occurred. This article explores fresh solutions to that issue, focusing on the scenario where copyright material from video games is communicated to the public, through its inclusion in Let's Plays (playthroughs of video games streamed from platforms like YouTube), or where such use of that material, under the terms of a license, is contemplated. In this scenario, the issue of infringement should be governed by the law of the place of the video game developer's incorporation, as a proxy for laws qualifying as the lex loci protectionis (law of the country where protection is sought (Fawcett & Torremans (2011)), abbreviated as the LLP). Where any party can prove specific differences between the law of the place of the developer's incorporation and a law qualifying as the LLP (called State A's law for ease of reference), in aspects essential for deciding whether infringement has occurred, the forum court must issue separate rulings as to whether (i) the claimant's copyrights under State A's laws have been infringed; and (ii) the claimant's copyrights under laws besides those of State A have been infringed. Courts should also adopt, as a mandatory rule of their domestic law, a rule precluding de facto infringements of copyrights in video games and/or their constituent elements from giving rise to liability for infringement.