Montreal is a leading Canadian centre for video game development and production. Since the industry’s nascent years in the early 1990s, many leading video game developers, producers and publishers have called Montreal home, lured in no small part by the talent pool that has led to world-class and bestselling game development.
The emergence of generative AI as workplace issue in the US video game industry and its impact in Canada
Generative AI (“GAI”) is being used by video game developers and studios in countless ways. It can generate characters, dialogue, environments, voice overs, and character movement, as well as modify voices. Just as the Screen Actors Guild and the Writers Guild identified GAI as a threat to the livelihood of screenwriters and actors and made it a core issue in 2023 bargaining, unions in the video game industry see AI as a threat to the livelihood of writers, voice actors, stunt performers, and motion capture actors. Employers face a multitude of intellectual property and privacy law challenges when their employees use GAI.
Cutting-edge technology and software have always been used in video game development and production. Some, including prominent Canadian video game producer Jade Raymond, say that GAI is unavoidable in game development. But its advent has raised a host of labour and employment concerns, and trade unions eager to organize the industry are using the spectre of GAI to rally the workforce across Canada.
The publicity surrounding the use of GAI in the US film and television production industry during their 2023 strike—and, more recently, the July 2024 strike declared by SAG-AFTRA[1] against major US video game studios—has likely contributed to these concerns. The agreement announced between SAG-AFTRA and 80 independent video game developers on September 5, 2024 has driven even more attention to this issue. While the details are not yet publicly available, it seems that the 80 independent developers have agreed to comply with the Interim Interactive Media Agreement. This agreement includes a range of GAI provisions, such as informed consent agreements for using GAI to generate new material from digital replicas of existing characters or voices, compensation to the artist or performer for use of material generated by a digital replica in a publicly released video game, a studio usage report issued and presented to the artist and the union, and studio requirements to provide prior notice to the union before using GAI.
In Canada, ACTRA[2] has been making similar demands in its negotiations with video game developers. ACTRA’s demands have essentially mirrored the provisions of the Interim Interactive Media Agreement and SAG-AFTRA’s demands to the major US game studios. This pressure has resulted in a number of agreements providing similar protections and compensation.
Canadian video game developers and studios that do not recognize ACTRA or use non-ACTRA personnel should review their policies and individual employment agreements with their employees. Traditional ownership of intellectual property rights as stipulated in these agreements and policies may not currently apply to the use of GAI. Game studios should have a particular eye to updating or introducing specific terms and conditions to their standard employment contracts that provide for clear and informed consent agreements that grant the employer the right to use digital replicas or reproductions of the employee’s performance. Clauses that define the terms and conditions of compensation to be paid when a digital replica is used, and how and when disclosure of any such use is to be made, may also be appropriate. This is of particular importance in the province of Quebec, given the broad protections in Quebec civil law against the use of one’s personal image without consent.
Finally, game developers and/or publishers should enforce acceptable use policies. These policies help mitigate risk, ensure employee compliance with laws and regulations, and protect intellectual property while allowing employees to leverage the benefits of GAI when developing games. Policies that address when employees may use GAI, what GAI tools are acceptable to use, and what intellectual property rights are associated with the work product will be key to protecting the studio’s image, privacy, and data, as well as preventing violations of third-party IP rights, confidentiality, and trade secrets. In short, aligning GAI use policies with existing information security protocols is of critical importance as the field evolves.
Our team—and particularly our Commercial and Labour & Employment Groups—has extensive experience in the video game industry. For years, Miller Thomson has led the charge in addressing the complex legal facets of video game development and demonstrated a deep understanding of the industry’s unique challenges. Our Labour & Employment team has blazed the trail in negotiations with ACTRA involving GAI. Being among the first to tackle these challenges showcases our industry expertise and commitment to staying ahead in this dynamic field.
[1] SAG-AFTRA: Screen Actors Guild ‐ American Federation of Television and Radio Artists are American labour unions representing approximately 160,000 media professionals worldwide.
[2] ACTRA: Alliance of Canadian Cinema, Television and Radio Artists is the national union of professional performers working in recorded media in Canada.
