Who Owns the Play? Performers' Rights, Publisher Copyright, And Unresolved Tension In India's Esports Law
India recognised esports as sport under Promotion and Regulation of Online Gaming Act, 2025 which came into force on 1st May 2026. Subsequently, in State of Tamil Nadu v. Junglee Games India Pvt. Ltd., 2026 the Supreme Court held that wagering on any game renders the activity res extra commercium leaving e-sports without monetary staking constitutionally untouched but unprotected under the Copyright Act. Yet the professional esports player lacks meaningful protection over their competitive performance under the Copyright Act, 1957. This article identifies the precise statutory mechanism u/s 38A(2) that creates this gap and proposes three reforms: amending Section 2(qq), inserting a non-waiver clause tied to PROGA registration, and creating a fast-track authority remedies mechanism.
India has formally recognised esports as sport. The Promotion and Regulation of Online Gaming Act, 2025 (hereinafter PROGA), defines e-sports as organised competitive gaming where outcomes depend solely on skill. On 27 May 2026, the Supreme Court in State of Tamil Nadu v. Junglee Games India Pvt. Ltd. held that wagering on any game regardless of skill renders the activity res extra commercium, outside Article 19(1)(g) protection. The Court left e-sports without monetary staking expressly untouched, creating a constitutionally unresolved space that PROGA now occupies but the Copyright Act still fails to address. Yet statutory recognition of esports as sport tells us nothing about who owns the competitive performance itself and that's the real problem.
Consider the esports professional. They've trained for years. They've developed genuine competitive skill like real-time decision-making, tactical execution under pressure, measurable performance metrics. They perform live before millions. But the moment they sign a tournament participation agreement, they lose meaningful control over their own performance. This happens through a specific statutory mechanism: Section 38A(2) of the Copyright Act, 1957.
Chapter VIII of the Copyright Act (titled “Performer's Rights”) purports to protect exactly this scenario. Section 38A(1) of Copyright Act,1957 grants performers exclusive rights to record, reproduce, and communicate their performance but Section 38A(2) introduces a critical limitation. Once a performer consents in writing to the incorporation of their performance into a cinematograph film and a tournament broadcast is precisely that they lose the right to object to how the producer uses that film. The publisher becomes the producer. The player's performance becomes part of the publisher's copyright and the player effectively loses control.
The statutory framework does leave the player with two things. Section 38B of Copyright Act, 1957 preserves moral rights 'attribution and integrity'. And the proviso to Section 38A(2) entitles performers to royalties for 'commercial use'. But moral rights don't prevent broadcast or licensing and royalties without control are a weak substitute for economic agency. The term 'commercial use' isn't even defined in the statute, which creates immediate interpretive problems.
The statutory uncertainty here isn't unique to India. The World Intellectual Property Organization has acknowledged that esports operates within a complex Intellectual Property ecosystem without clear frameworks governing performer rights. But India's problem is distinct: esports now has formal statutory recognition under PROGA, yet the Copyright Act still treats performer rights as derivative and defeasible upon consent. That's the gap this article identifies and addresses. It traces how Section 38A(2) operates, explains why surviving protections are inadequate, and proposes three concrete reforms.
ESPORTS IS A SPORT THAT IS PRIVATELY OWNED
When a cricketer walks onto a pitch or a footballer enters a stadium, they perform in a publicly accessible arena. The game itself has its rules, its competitive expression that belongs to no one. Esports is structurally different. It is played entirely within a video game. The game is software which is owned u/s 13 of the Copyright Act,1957 , copyright subsists in both the game's source code (a literary work) and its audiovisual output (a cinematograph film). Section 2 (f) defines cinematograph film as 'any work of visual recording produced through a process analogous to cinematography including video films'. Section 14 (d) defines the publisher holds the exclusive right to copy, distribute, and communicate that film to the public. A live esports tournament broadcast produced by the game engine, captured through in-game cameras, streamed to audiences is film. The player who competes within it performs inside someone else's copyright.
Publishers operationalise this ownership through End User Licence Agreements (EULAs) , which every player must accept before they can train, qualify, or compete. When Riot Games permanently banned the esports organisation Renegades from all Riot-sanctioned leagues in 2016 without any independent appellate mechanism , the structural reality was exposed: the publisher controls the arena, writes the rules of entry, and adjudicates disputes about those rules. The player's only recourse was through the very document the publisher had unilaterally drafted. This asymmetry is not incidental to esports it is constitutive of it.
SECTION 38A(2): THE STATUTORY LIMITATION
Section 38A(1) grants performers exclusive rights to record, reproduce, broadcast, and communicate their performance. Section 2(q) defines 'performance' in relation to performer's right as 'any visual or acoustic presentation made live by one or more performers'. The section 2(qq) defines 'performer' to include 'an actor, singer, musician, dancer or any other person who makes a performance'. A competitive esports player whose in-game decisions are visually presented live appears to fall within this residual category. On its face, Section 38A(1) should protect the player.
But Section 38A(2) substantially limits the practical value of these rights:
“Once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer's right in the same film: Provided that the performer shall be entitled for royalties in case of making of the performances for commercial use.”
For the esports player, this operates simply: tournament participation requires written consent to broadcast incorporation. That consent triggers Section 38A(2): the publisher acquires the right to exercise the player's statutory rights. The player can no longer object to broadcast, licensing, editing, or monetisation of their performance. This limitation is overrideable only 'in the absence of any contract to the contrary' a statutory escape hatch that the reforms below leverage.
What survives is the section 38B preserves moral rights (attribution and integrity), and the proviso guarantees royalties for 'commercial use'. But what constitutes 'commercial use' is undefined in the Act. This absence of statutory definition creates interpretive uncertainty regarding the scope of the royalty entitlement. Moreover, moral rights do not prevent exploitation or protect economic control. Most critically, the player loses the right u/s 38A(1) to determine when, how, and by whom their performance is used. Section 38A(2) remains judicially untested in digital contexts, making the gap both legally unsettled and practically unchecked.
The statutory uncertainty surrounding esports performers is not unique to India. The World Intellectual Property Organization (WIPO), through partnerships with Video Games Europe and the Esports Integrity Commission (both 2024), and via its Arbitration and Mediation Center which launched the International Games and Esports Tribunal (IGET) for video game and esports disputes has recognised that esports operates within a complex intellectual property ecosystem involving game publishers, tournament organisers, broadcasters, teams, and players. Yet despite acknowledging the absence of clear frameworks governing players' rights and their significant contribution to the commercial value of competitive gaming, global Intellectual Property law remains largely publisher-centric. India's framework u/s 38A(2) reflects this broader international challenge but remains particularly acute because esports now enjoys formal statutory recognition under PROGA.
International frameworks recognise that remuneration without control is structurally insufficient. South Korea's KeSPA established minimum salary standards and standardised player contracts requiring minimum contract terms of one year that is formal acknowledgment that protection requires control, not mere compensation. The EU's Digital Single Market Directive (Articles 18-20) provides both fair remuneration rights and contract adjustment mechanisms that allow performers to claim additional remuneration when subsequent revenues prove disproportionately high. These mechanisms recognise that control where the ability to say no, to negotiate, to participate in decisions about commercialisation is what gives a professional genuine market power.
THREE REFORMS
First: Amend Section 2(qq) to expressly include 'esports competitors' participating in PROGA-recognised competition. The residual clause is plausible but untested. Parliament should eliminate threshold ambiguity.
Second: Mandate a non-waiver clause tied to PROGA registration. Section 38A(2) applies only 'in the absence of any contract to the contrary'. Parliament should require that publishers seeking registration u/s 8 of PROGA maintain EULAs that preserve the player's core Section 38A(1) economic rights and prevent standard-form override. The minimum content :
(a) the player retains approval or licensing rights over broadcast incorporation;
(b) transparent accounting of all commercial uses; and
(c) performer-rights disputes are resolved through Authority mechanisms, not publisher access revocation.
This is not compulsory licensing; the publisher retains full copyright. The non-waiver clause simply prevents EULA override. Publishers voluntarily seeking PROGA registration accept performer-protection requirements as the price of regulatory benefits where a model analogous to TRAI's interconnection obligations as a condition of telecom licensing.
Third: Empower the Authority to issue interim directions staying access revocation while performer-rights disputes are pending. Copyright litigation takes years; esports careers last years. Interim relief prevents irreparable harm without overriding copyright, following SEBI's and TDSAT's established models in sector-specific disputes.
The esports player occupies a paradox at the heart of India's emerging legal order. PROGA grants formal recognition to the sport. The Supreme Court has left skill-based competitive gaming constitutionally untouched. Yet Section 38A(2) ensures that the moment a player signs a tournament participation agreement, that recognition means nothing , the publisher acquires control, and the performer loses it.
The three reforms proposed here are narrow by design. Amending Section 2(qq) removes definitional uncertainty. The non-waiver clause converts PROGA registration into a floor of performer protection without disturbing publisher copyright. Interim relief through the Authority ensures disputes are resolved before careers end.
India has chosen to recognise esports as sport. That choice carries consequences. A framework that grants athletes formal status while permitting the contractual erasure of their economic rights recognises spectacle, not sport. The law must close that distance.
Author is a 3rd year BA LL.B. (Hons.) student at University School of Law and Legal Studies (USLLS), Guru Gobind Singh Indraprastha University, New Delhi. Views are personal.