Competition in the cloud gaming market: proposing the innovation-creativity dichotomy

Cloud gaming technologies are reshaping the relationships between players, developers and platforms, raising questions about market dynamics and regulatory priorities. This article explores the development of cloud gaming technology and its regulation by competition law authorities by scrutinizing the concept of ‘innovation’ employed in recent high-profile inquiries, including the Microsoft/Activision Blizzard merger. In particular, the article argues that authorities’ focus on innovation overlooks the collaborative and iterative nature of creativity essential to the game industry’s diversity and growth. The article illustrates the potential risks to creativity in the cloud gaming market through two exemplary case studies. First, the article illustrates that through legal and technological restrictions, the scope for users to modify (‘mod’) cloud-based games and develop new post-release products is severely curtailed. Second, the article evidences how these limitations are heightened in developing virtual worlds (including the metaverse), forcing questions of interoperability and openness in business models. In both case studies, it is evident that the problems facing the sector go beyond those of monopoly to more fundamental issues of market dynamics and definitions. The article concludes by advocating for a recalibration of the values of competition law to account for the dynamic and process-orientated nature of creativity.