Copyright and the Player

This paper explores the ontological construction of the player in copyright law. The player has a central role in interactive entertainment; their presence is both invited, and necessary – one must play a game to experience it. Yet, play is transformed into an engagement with copyright law through the many underlying copyrights of the primary game creators. The player is now a user of a proprietary work.

This is assumed self-evident, by design, but the user is both recreational and re-creational. Does the player make decisions in a game which are original creative expressions, or are they merely following the rules of a system to its logical conclusion (playing a game)? The paper reviews existing copyright doctrine which construct the player as either an author (or performer) or a user. It focusses on the value playing a game itself, rather than any ancillary or spin-off game products.

The paper forwards a normative argument which emphasises understanding play as existing outwith this reductive production consumption binary: rather, we should try to understand play, and by extension the player, on their own terms. Those terms may exist outwith the boundaries of copyright. Debate has undercurrents of a strive towards legitimation – the award of a proprietary right or the endorsement by the law of the excepted activities. Play is not necessarily either of these things – but we should also resist the argument that everything worthwhile is productive.