As previously mentioned, esports share many of the common elements found in traditional sports. There are professional leagues, teams, sponsorships, media deals, agents, and fans. However, unlike traditional sports, esports differ most significantly in the proprietary nature of the activity. Major League Baseball does not own baseball, the National Hockey League does not own hockey, the National Basketball Association does not own basketball, but in the Overwatch League (OWL), someone does own Overwatch. Overwatch is, therefore, eligible for copyright protection as an audiovisual work. In Canada, the does not identify video games as a specific category of work. However, the courts have recognized  video games to be protected by copyright, both as a whole and in its individual elements such as the soundtrack, voice acting, character design, and level design. For the most part, the owner of the copyright in a video game is the game’s producer.

Similarly to most copyright owners, game producers assert their exclusive rights by controlling reproductions, distributions, public performances, and creations of derivative works that involve or stem from their copyright-protected work. In esports, these exclusive rights provide game producers with significant power over the direction of the industry. Game producers possess the ability to dictate not only the use of their games in tournaments, but also the way the tournaments will function, and even who can participate in the tournaments. Game company Activision Blizzard’s recent decision to switch from a merit-based league to a franchised league for its game Call of Duty is one recent example of a producer exercising this control. This decision was ultimately met with criticism after the iconic Call of Duty World League (CWL) team backed out of the estimated $25 million franchise fee required to join the new franchise league. Their decision effectively concluded their participation in the game Call of Duty for the time being.

Given that tournament organizers, teams, players, broadcasters, spectators, and advertisers all rely on access to a publisher’s IP to participate in esports markets, there is a concern that a publisher’s behaviour could constitute anticompetitive IP exploitation. As one , a game publisher’s IP in a game effectively grants them a permissible monopoly, and publishers will rationally seek to minimize competitive pressure from other entities in the market through vertical integration of the downstream market. However, the issue of whether a single videogame could constitute a relevant market under competition law is unclear. Currently, there are many different esports leagues, numerous publishers, and countless current and emerging games, as opposed to just a single league with monopoly power. Moreover, it would be difficult for any would-be plaintiff to demonstrate that a publisher’s actions were anything not otherwise already afforded to them through federal IP protection. While it’s unlikely there would be any clear violations of competition law, those within the esports industry need to be cognizant of these issues, particularly in an era in which publishers are demanding franchise fees in the tens of millions of dollars for games yet to be released.

While publishers will often flex their IP muscle at the expense of tournament organizers, leagues, teams, advertisers, and broadcasters, there is one particular area where publishers typically turn a blind eye – streaming. When a user purchases a game, what they are buying, in addition to the physical copy, is a copyright licence to make use of the game subject to certain terms and conditions. Generally, streamers receive a “carte blanche” from publishers when it comes to streaming on services such as YouTube and Twitch because it makes commercial sense given the promotional value that streamers provide to the game.

The recent launch of the game Apex Legends is a testament to the influence that streamers have on the industry. Much of the game’s early success can be attributed to clever marketing on behalf of the publisher. s indicate that the game’s publisher, Electronic Arts Inc (EA), paid a number of streamers, including a reported $1 million to top streamer Tyler (Ninja) Blevins, to play the game for the week. The game was an instant success, the game generated over 25 million players, with nearly 64 million hours of live viewership on the streaming site Twitch. All this success occurred even though the game was not announced to the public until a day before it was actually released!

While the gaming community is certainly capable of giving a game life, it also possesses the power to take it away. In 2017, fans organized a of EA’s Star Wars Battlefront II to protest the game’s unfair use of “”. As a consequence of the boycott, EA failed to meet sales targets by roughly one million copies, their stock price fell, and their reputation was permanently damaged. Needless to say, the gaming community plays a significant role in this emerging industry, acting as a type of de-facto regulator in a mostly unregulated industry. 

From an outsider’s perspective, there often appears to be unbridled control on the part of game producers in the esports industry. Still, it should not be forgotten that a game’s real success depends on its reception in the gaming community. If a game producer chooses to deploy exploitative IP strategies, copystrike its players, or engage in manipulative profit-maximization, the community will be aware, and a game publisher will suffer.

Written by Alexandre Dumais, IPilogue Editor and JD Candidate at Osgoode Hall Law School. Alexandre is also the Director of Sports, Osgoode Entertainment and Sports Law Association.

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The Bureau recently that Phase 2 of the IPEGs update could address anti-competitive activity surrounding standard essential patents (SEPs). SEPs are patents that are considered essential to implement an industry standard and are common within the technology industry. The European Commission (EC) that competition concerns arise from SEP holders gaining market power once a standard has been adopted by competing rivals. This makes ensuring fair, reasonable and non-discriminatory (FRAND) licensing commitments particularly important. Google/Motorola and Apple’s recent SEP litigation coupled with the corresponding enforcement by the EC and the United States Federal Trade Commission (FTC) raises questions as to how the Bureau will position the pendulum toward SEP activity.

The Competition Bureau’s Current Approach to Anti-Competitive SEP Activity

While not directly addressed, the Bureau’s note one example in which the Bureau would target anti-competitive SEP activity through of the Competition Act. Section 32 allows the Federal Court, on the advice of the Attorney General, to issue an order that remedies an anti-competitive act occurring from the mere use of an IP right. The IPEGs imply that the Bureau must first establish that the SEP holder dominates the relevant market and that refusing to licence the SEP prevents other firms from effectively competing in the relevant market. Second, the Bureau must establish that invoking section 32 against the SEP holder would not adversely affect the incentives to invest in research and development.

Section 32’s procedurally cumbersome requirements partially explain why it hasn’t been used for decades. The section requires the Attorney General to apply to the Federal Court. The Commissioner is also required to meet the “undue lessening” standard that was from other Competition Act provisions due to its outdated language.

Potential New Approaches to Target Anti-Competitive SEP Activity

The Bureau might characterize anti-competitive SEP activity as an abuse of dominance. The EC recently that Motorola’s efforts to seek injunctive relief against Apple’s use of a smartphone SEP constituted an illegal abuse of dominance pursuant to . The Bureau could argue that similar conduct is an abuse of dominance under of the Competition Act. However, unlike Article 102, explicitly exempts “an act engaged in pursuant only to the exercise of any right…under the…Patent Act”. The Competition Tribunal held in that the refusal to licence an IP right falls under the section 79(5) exemption. Therefore, the Bureau might refrain from characterizing the activity as an abuse of dominance unless it argued that the SEP holder’s breach of its FRAND commitments was something more than a mere refusal to licence.

The Bureau might instead choose to characterize anti-competitive SEP activity as an unfair trade practice. The United States FTC recently Google/Motorola’s FRAND commitment breach through of the FTC Act, which prohibits unfair deceptive acts involving commerce. There currently does not seem to be a provision in the Competition Act synonymous with section 5 of the FTC Act. The Bureau could instead argue that such conduct constitutes an illegal refusal to deal pursuant to of the Competition Act, which might allow the Tribunal to order the supplier of a product (the SEP) to sell to a party within usual trade terms (the FRAND commitment). However, the Tribunal held in that the term “product” in section 75 was not intended for licences of intellectual property, making it much less likely that the Bureau could use section 75 to target breaches of FRAND commitments.

Finally, a uniquely Canadian solution would entail amending section 32’s procedural obstacles outlined above to target SEP activity. Amending these obstacles, which is  by the former head of the Bureau, could improve the provision’s functionality while ensuring common ground with the EC and FTC’s competitive analyses by preserving the IPEGs’ mandated balancing of competitive effects. Overall, the Bureau has some significant provisions with which to target SEP activity. Whichever route they take, however, evidence suggests that the pendulum will continue moving toward antitrust enforcement.


Peter Neufeld is a JD Candidate at Osgoode Hall Law School and is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.

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Following the bid, campaigns such as and have been created with the purpose of informing the public about the potential consequences of such an acquisition and to persuade the government, the Canadian Radio-television Telecommunications Commission (CRTC), and the Competition Bureau that such a move by BCE should be blocked in order to protect consumers across the country. While there is some doubt as to whether steps being taken by BCE’s competitors are being done with consumer rights as the main motivator, important issues have been raised by both sides concerning the potential deal. From September 10^th – 14^th, 2012, the CRTC heard arguments from all parties involved at a and will be presenting their decision in the near future; a decision that could have heavy implications on consumer access to media in Canada, regardless of what is chosen.

According to OpenMedia.ca – the group behind Stop the Takeover – , with Bell, Shaw, Rogers, and Quebecor contributing the overwhelming majority of cable/satellite transmissions as well as raking in the majority of revenues for wireless and internet services. The CRTC has placed limits on the English and French content any one company can control – 35% in the case of English content. With the acquisition of Astral, Bell states that it would own 33.5%, just under this threshold. However, rival and the . Much of the arguments presented at the hearing concerned these figures as well as the impact the Astral deal could have on the Canadian consumer.

During the CRTC hearing on the matter, George Cope – CEO of BCE – , “Canada should not have to wait any longer to deploy a viable, national multi-platform solution, backed by a company with the resources to compete against well-funded global competitors.” Without the content that Astral Media owns, Bell fears that it will not be able to stand up to the likes of Netflix and other companies that have been using updated business models (other than the expensive subscription fee that cable TV is well-known for) in order to attract new customers. However, executives at competing Canadian companies don’t believe this argument. Ken Engelhart, a Senior VP at Rogers (another company against the purchase) that a number of cable companies in Canada and the US have launched their own services to compete with Netflix and this makes Bell’s situation no different than that of any other.

One of the issues with the Astral bid that could affect consumers is the possibility that Bell could leverage its new-found position to unfairly overcharge other cable companies that want to broadcast Bell-owned programming. Such increases would then be passed off to consumers, resulting in higher prices and less options for Canadians – one of the issues with having content and distribution controlled by the same company. and have both cited times where Bell has exhibited this type of behaviour, and there is potential for future dealings to follow a similar pattern if the Astral deal is allowed to go forward. In addition, unnecessary duplication of positions between the two companies will mean within the sector.

The government of Canada and the Competition Bureau both have the ability to veto the purchase, whether or not the CRTC does so. However, are unsure as to whether either of those bodies will step in. Making matters more uncertain is the by the Harper government of Jean-Pierre Blais as the CRTC chair. in order to provide Canadian consumers with better accessibility to content and services (a change from the previous objectives under previous chair Konrad von Finckenstein), the decision on this case may probe deeper into the Commission’s motivations.

Adam Del Gobbo is a JD Candidate at Osgoode Hall Law School.

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