Advertising in Online Games and Cultural Diversity

Transcription

1 Thomas Steiner Dr. iur. Advertising in Online Games and Cultural Diversity An EC and International Media Law Enquiry L-G-D-J Stampfli Publishers Ltd Berne 2010 Bruylant Ltd. Brussels -2010

2 Acknowledgements XIII Table of Cases XV Table of Legislation XIX List ofabbreviations and Acronyms XXIII Introduction 1 Chapter 1: Enter the Matrix of Online Games and In-game Advertising 9 1. INTRODUCTION 9 2. ONLINE GAMES: A TYPOLOGY Casual Games Multiplayer Online Network Games Massively Multiplayer Online Games (MMOGs) Serious Games ONLINE GAMES: THE STATE OF PLAY Enormous and Still Growing Economic Potential The Trend Towards Online Games From Offline Only to Online Only: A Snapshot from 2008 and 2009 Console and PC Market Entries Purely offline: Fallout Partly online: LittleBigPlanet Purely online: MMOGs for PCs and consoles DRIVERS OF THE INDUSTRY Technological Factors Platform convergence Implications of broadband Demographic Factors (Online) digital games attract all ages Women enjoy online games RISING COSTS High Development and Production Costs 24 VII

3 5.2 Costs of Providing the Game as an Ongoing Online Service IN-GAME ADVERTISING: A TYPOLOGY In-game Product Placement Static in-game product placement Dynamic in-game product placement In-game Sponsorship Static in-game sponsorship Dynamic in-game sponsorship Pre-game, Inter-level, and Post-game Advertising IN-GAME ADVERTISING: A NEW SOURCE OF REVENUE FOR ONLINE GAMES PROVIDERS In-game Advertising and Casual Games Free Online Versions of Popular Games: The "Asian Model" Dynamism in Multiplayer Online Network PC and Console Games More MMOGs are Open to In-game Advertising Serious Games for Advertising IN-GAME ADVERTISING: NEW OPPORTUNITIES FOR ADVERTISERS The Obvious Response to Changing Patterns of Consumer Behaviour Reaching Narrowly Defined Demographics Localising Gamers and Advertising according to Geographic Segmentation Profiling Gamers and Advertising according to Behavioural Segmentation Attentive Gamers vs Couch Potatoes Advergames: The Alternative Model CONCLUSION 39 Chapter 2: Policy Perspectives: Advertising, Online Games and Cultural Diversity STARTING PREMISES REMARKS FROM A HISTORICAL-SOCIOLOGICAL PERSPECTIVE: WHY THE SCEPTICISM ABOUT ADVERTISING? 49 VIII

4 3. ADVERTISING REGULATION IN EUROPEAN BROADCASTING LAW: POLICY AND CONCEPTS Different Goals Similar Approaches to Advertising Standards CULTURAL DIVERSITY MOTIVES AS UNDERLYING RATIONALES FOR ADVERTISING'S REGULATION The Right to Integrity of Programmes An Institutional Approach: Mechanisms Fulfilling the Same Function as Constitutional Rights Society as a global communications system Constitutional rights as social institutions CULTURAL DIVERSITY AS A CONCEPT AND A PUBLIC POLICY OBJECTIVE CONCLUSION 72 Chapter 3: EC Media Law Enquiries INTRODUCTION ONLINE GAMES AND THE SCOPE OF THE AVMS DIRECTIVE A Service as Defined in Articles 49 and 50 EC Treaty Types of activity caught by Articles 49 and 50 EC Treaty Inter-State/cross-border element Economic activity Electronic Communications Networks Non-linear/On-demand Services Linear audiovisual media services: No case for online games Non-linear audiovisual media services: A case for online games? 89 A. Casual games and serious games 90 B. Multiplayer online network games and MMOGs/ MMORPGs THE REGULATION OF IN-GAME ADVERTISING IN THE FRAMEWORK OF THE AVMS DIRECTIVE Is Advertising in Online Games a Form of Audiovisual Commercial Communication? 94 IX

5 3.2 In-game Product Placement and the AVMS Directive In-game Sponsorship and the AVMS Directive CULTURAL DIVERSITY AND THE REGULATION OF ADVERTISING IN THE DIGITAL ERA What Happened to the Principle of Separation of Advertising and Programmes? Transparency: Ever-more Important in the Digital Environment? "ANALOGUE" CONCEPTS FOR DIGITAL GAMES? Giving In-game Placements of Products and Brands No "Undue Prominence" Making It Transparent CONSIDERING "EUROPEAN WORKS" CONCLUSION 110 Chapter 4: Online Games Under WTO Law: Unresolved Classification Issues INTRODUCTION THE DIFFERENT ARCHITECTURES OF GATT AND GATS AND THE IMPLICATIONS FOR ONLINE GAMES THE VIEWS OF STATE AND NON-STATE ACTORS On Methodology WTO Members GATT-like treatment for entertainment games: United States of America (US) GATT treatment for digital contents: Japan Digital games as GATS audiovisual services: European Community (EC) No (clear) definition of software in GATT and GATS: Canada The View of the Industry Digital games as software: The Interactive Software Federation of Europe (ISFE) Free trade for software products of any kind: Microsoft Views Expressed in the Academic Discourse 122

6 3.4.1 In search of digital products' classification: Sacha Wunsch-Vincent Rebalancing GATT and GATS: Tania Voon Electronic intangibles, software, and the fine line between goods and services: Rohan Kariyawasam ONLINE GAMES AS COMPLEX PRODUCTS COMBINING SOFTWARE AND CONTENT SERVICES Goods vs Services - GATT vs GATS GATS Classification of Online Games CONCLUSION 135 Chapter 5: Government-assisted Governance of In-game Advertising MAPPING THE WAY TOWARDS A SYNTHESIS THE IMPLEMENTATION OF THE AVMS DIRECTIVE: COOPERATION OF PUBLIC AND PRIVATE ACTORS IN NETWORKS Co-regulatory Arrangements A New Approach The New Approach to Technical Harmonisation and Standards Relationships of mutual recognition A "new approach" for the implementation of the AVMS Directive SELF-REGULATION OF THE ONLINE GAMES INDUSTRY The Current Framework Governance of In-game Advertising by Article 10.2 of the PEGI Online Safety Code The Flaws of Article 10.2 POSC GOVERNMENT-ASSISTED GOVERNANCE: THE COE'S HUMAN RIGHTS GUIDELINES FOR ONLINE GAMES PROVIDERS The Scope of the Human Rights Guidelines The Legal Nature of the Human Rights Guidelines The Guidelines' "New Approach" to Governance of In-game Advertising Continual Observation, Readjustment and Cooperation 158 XI

7 4.5 Recommendations CONCLUSION 163 Conclusion 167 Annex 173 ANNEX 1: PEGI ONLINE SAFETY CODE ("POSC") 173 ANNEX 2: HUMAN RIGHTS GUIDELINES FOR ONLINE GAMES PROVIDERS 183 Bibliography 189 XII