Creare un gioco play-to-earn: 5 aspetti legali da tenere a mente

Creating a play-to-earn game is an exciting but tough challenge which requires to pay attention to few important legal elements that can impact the product and the related business.

Introduction

The Korean software house WEMADE has recently announced a new MMORPG title set in a Norse-inspired fantasy world. The uniqueness of this game lies in combining a setting and graphics typical of AAA games—particularly thanks to the use of Unreal Engine 5.1—with Web 3 trends. According to initial statements, it will be possible to extract a fungible token/virtual currency and mint game skins as non-fungible tokens.

The growth of the play-to-earn sector and integration with dynamics and elements typical of traditional AAA games provides an opportunity to consider the legal aspects related to this innovation in the gaming industry. Below are 5 considerations to keep in mind when designing or developing a play-to-earn game.

1 — Token qualification

Some blockchain-based games use virtual currencies for payment management or project financing (perhaps through mechanisms like ICOs or IEOs). In this case, it is particularly relevant to consider the characteristics of such virtual currency and determine its possible qualification.

Recent regulations, such as the European Regulation on Markets in Crypto-Assets (MiCA regulation), impose compliance obligations on token issuers, which vary depending on the type of token. MiCA regulation, for example, distinguishes between asset-linked tokens (such as stablecoins) and other types of crypto-assets, such as utility tokens, with some differences in their regulation.

2 — NFT Qualification and Related Rights

Typically, assets in play-to-earn games (such as character skins or certain game items) are linked to non-fungible tokens. These, thanks to their nature as non-fungible digital goods registered on the blockchain, are well suited to be associated with unique or limited game assets.

Certain types of rights can be associated with NFT, which may affect the legal qualification of the NFT themselves. This becomes particularly important when the rights associated with non fungible tokens are of an economic nature benefiting the holder. The result could be the qualification of such NFTs as financial instruments and/or products, with the consequent application of financial regulation provisions (such as authorization and compliance obligations).

3 — Token Services Qualification 

In addition to the qualification of products (whether they are fungible or NFT), the type of services provided in relation to these products is relevant. This could entail the application of certain sector-specific regulations, along with related compliance obligations.

For example, consider the operator of a play-to-earn video game who also manages the corresponding marketplace for NFTs and virtual currencies or provides custody services. Such an operator may currently be subject to anti-money laundering regulations applicable to virtual currency service providers (in Italy, this also means complying with registration and reporting obligations to the Agents and Mediators Authority).

4 — Rules on tournaments for play-to-earn games

This topic is much older than blockchain technology but is also applicable to play-to-earn games. Italian regulations indeed fairly detailedly regulate the organization of tournaments, including, among other things, the prohibition of cash prizes and the application of specific obligations for the provision of prizes of a different nature.

In relation to Web3 project, in a recent update of the FAQ by the Ministry of Enterprises and Made in Italy, it was made clear that  awarding prizes in cryptocurrency is prohibited, as it is compared to prizes in money. Conversely, awarding of prizes in NFT is allowed, as they are considered unique digital objects (the award must still be distributed in compliance with the rules and obligations provided for tournaments).

5 — Typical Game Elements