As the 2020 Tokyo Olympics concluded for the summer, a new copyright issue came to the forefront of entertainment law. Félix “xQc” Lengyel, one of the most popular content creators on the livestreaming platform Twitch, received a copyright strike under the 1998 Digital Millennium Copyright Act (“DMCA”). DMCA claims are a common tool for copyright holders who believe someone on Twitch or YouTube is violating their copyright. In this case, the International Olympic Committee (“IOC”) issued the DMCA claim because xQc was livestreaming a 10-minute clip of a badminton match to over 50,000 viewers. In response to the IOC’s DMCA, Twitch suspended xQc and removed the clip.
Now, with legal representation, xQc is taking a stand against the IOC by issuing a counter-notice. The live streamer is claiming that the content at issue should not have been taken down because it is fair use, considering that xQc was adding his own commentary and reactionary content to the clip. By countering the DMCA, xQc has effectively left the IOC with two options: (1) let this issue die out without conflict, or (2) sue xQc for violation of their copyright.
While this is just one of the many copyright claims extended by the IOC, this particular claim highlights a disconnect between traditional entertainment and younger audiences which begs the question: Is the IOC taking the right approach to its intellectual property licensing?
NBC broadcasted a record-setting 7,000 hours of coverage of the 2020 Tokyo Games across both traditional cable and its new streaming app, Peacock. More content at viewers’ disposal than ever before, a new streaming platform for cable cutters, and an ongoing pandemic that has increased the amount of time people spend at home should have yielded positive viewership ratings. This, however, was not the case.
Instead, the prime-time Olympic events averaged 15.5 million viewers across all platforms, almost half of the 26.7 million viewers averaged in the preceding 2016 Rio de Janeiro Games. This stark drop in audience earned the Tokyo Games the title of “lowest average primetime viewership” in the last 30 years.
NBCUniversal purchased exclusive broadcasting rights to the Olympic Games through 2032. This agreement will span the much anticipated Beijing, Paris, and Los Angeles Games. In order to maximize the $7.75 billion price tag that NBC paid for these exclusive rights, it will need to adapt its approach to intellectual property licensing to capture younger audiences.
NBC’s answer may lie right in front of it with this copyright infringer on Twitch. xQc was livestreaming Olympic content to over 50,000 people. If NBC were to license some of its exclusive rights to a select few live streamers and content creators, the forfeit of exclusivity may still yield an increase in viewership; and even more importantly, advertisement revenue.
The Amazon-owned livestreaming platform, Twitch, is one of most-watched gaming platforms, boasting six billion hours watched in the first quarter of 2021 alone. Viewers watched one trillion minutes in 2020 with an average of 30 million daily visitors to the website. Nearly half of all Twitch users are between the ages of 18 and 34.
The Twitch platform is already being utilized by other sports commissions to capture younger audiences’ gaze. Following the success of broadcasting select games on Twitch, the NFL signed a long-term agreement with Amazon for exclusive rights to Thursday Night Football broadcasts from 2023 to 2033. With almost one-in-four sports viewers watching via digital channels, the NFL and its commissioner Roger Goodell saw a Twitch partnership as providing fans with “even greater access to the games they love.”
In the world of esports (video games played at the highest competitive level), Twitch has hosted the broadcasts of a majority of the top competitions, with peak audiences ranging between two and five million viewers. On top of these official broadcasts of the esports events, industry leader “Riot Games” has capitalized on the popularity of content creators much like xQc.
Riot Games, a game developer behind popular esport titles such as “League of Legends” and most recently “VALORANT,” announced that one of their biggest “VALORANT” tournament broadcasts would offer officially sponsored“watch parties” with a selection of Twitch streamers. The list of streamers included popular personalities such as Ludwig, Myth, Pokimane, and Shroud. These watch parties would allow viewers to pick how they would watch the broadcast: (1) with more traditional commentary provided by the official stream, or (2) with a content creator that they find entertaining or insightful. Riot Games found a way to expand its esport into different target audiences within Twitch, all while retaining its intellectual property rights by being very selective with the streamers of which it partnered.
NBC, being one of the largest media conglomerates of our generation, is likely aware of its shortcomings. While the development of its internet streaming app, Peacock, is a step in the right direction, the recent Tokyo Games underscores just how far behind NBC is.
To approach this lag in traditional entertainment, NBC should consider new licensing approaches to capture younger generation’s attention. Having content creators host officially sponsored watch parties would spark an interest and increase engagement in international sports within the Twitch platform’s core demographic, 18-24-year-olds. Alternatively, NBC could structure some sort of official livestreams hosted on the Twitch platform akin the to NFL’s partnership, adding another platform to capture advertisement revenue.
Although there will still be some streamers, like xQc, that attempt to broadcast copyrighted material, NBC and the IOC should opt to strategically license their exclusive rights instead of shutting out the Twitch platform, its streamers, and its massive audiences.
Seth Elizondo is a second-year law student at Wake Forest University School of Law. He holds a Bachelor of Science in Accounting from Florida State University, where he became involved with the Florida State Esport Club. Upon graduation from law school, Seth intends to practice tax law.