In early 2023, Wizards of the Coast (WotC), owner of Dungeons & Dragons (D&D), attempted a highly controversial revision of their foundational Open Game License (OGL). This move sparked a major intellectual property controversy, threatening two decades of independent publishing built on the original OGL 1.0a. The leaked draft triggered a backlash, highlighting critical questions about the security of open licenses and the limits of proprietary rights over creative systems.[1]
The OGL, released in 2000, was a public copyright license that explicitly defined what Open Game Content (available for third-party use) and what remained WotC’s exclusive intellectual property. It provided a legal safe harbour by granting explicit permission to use the copyrighted expression of non-copyrightable game mechanics.[2] Furthermore, the OGL encouraged creators to develop and share their own supplementary rules and content using D&D content without paying royalties.[3]
The swift and overwhelming public backlash forced WotC to abandon the proposed OGL changes entirely. In a significant reversal, WotC subsequently released the core rules of D&D 5.1 under the Creative Commons International license.[4] This universally recognized, explicitly irrevocable public license created a stable, permanent foundation for creators, underscoring the legal tension between corporate desire for control and the robust rights afforded to innovators under established copyright principles.
This paper will examine the limits of Canadian copyright that led WotC to rely on the OGL and then explore defences and alternatives available to Tabletop Roleplaying Game (TTRPG) creators under Canadian copyright law.
Copyright Limits and the Risks of License Reliance
The instability of the proprietary licence demonstrated a critical legal distinction at the heart of Canadian copyright law: the idea/expression dichotomy.[5] This dichotomy is the first limit on copyright protection that played a factor in this circumstance.
Unprotectable Ideas and Systems: The Copyright Act only grants protection to original literary, dramatic, musical, or artistic works.[6] The core mechanical concepts of D&D—such as the d20 resolution formula, rolling dice, and adding modifiers—are unprotectable as “ideas” or “systems”. Therefore, game mechanics, rules, and methods of play are not copyrightable.
Protectable Expression: Only the expression of ideas is protected.[7] This includes the specific rules text, character descriptions, original monsters, and descriptive narrative text, which qualify as literary works.[8] A third-party work infringes only if it copies the specific literary or artistic expression that constitutes a substantial part of the original work.[9]
The original OGL 1.0a was valuable as it provided explicit contractual permission to use WotC’s expression of non-copyrightable game mechanics, avoiding the costly need for creators to constantly reword rules to skirt infringement.
Despite its benefit, the OGL 1.0a was contractually vulnerable. The central threat of the new license was WotC’s assertion that it could unilaterally revoke the original license,[10] jeopardizing substantial business investments made by third-party creators based on the common industry interpretation that the license was “perpetual” and “irrevocable.”
Furthermore, the new license draft included broad restrictions on Virtual Tabletops (VTTs) and video content, raising the risk of secondary infringement claims for Canadian TTRPG operations that distributed WotC-copyrighted content.[11]
The crisis demonstrated that relying on a single, proprietary contract (the OGL) offered insufficient IP security for both WotC and leading creators, prompting both parties to seek alternative, more robust protections. The following discussion explores the ways TTRPG creators sought, or could seek, protection against such threats.
Defences and Alternatives:
Faced with the threat of revocation of the licence, infringement and potential litigation, creators and publishers sought alternatives that are more secure under the fundamental statutory limits of the Copyright Act.
Rewriting the Expression
The most robust and direct defence available to creators is the adherence to the idea/expression dichotomy through retro-cloning, which eliminates the necessity for a corporate license by ensuring that the new work utilizes only the unprotectable elements of the original system:
- Copy the Idea (The System): A creator is legally permitted to replicate the entire functional mechanical algorithm of D&D—including, for example, the d20 resolution formula or the use of six core ability scores—because these are functional rules. Game mechanics cannot be monopolized by copyright.
- Create Original Expression (The Text): To avoid infringement, the creator must exercise skill and judgment in creating a completely original expression of these ideas.[12] This requires meticulously rewriting the descriptive text for every rule, avoiding WotC’s specific sentences, paragraph structure, or unique jargon and ensuring they do not copy a substantial part of the original work.[13]
By undertaking this intellectual effort, the creator produces a new rulebook that gains its own copyright protection under the Copyright Act. The resulting work is legally secure because the Canadian standard for originality requires the product of skill and judgment that is not trivial or purely mechanical.[14] It would meet this standard as it would not just be a copy but would require some creative skill and judgement in rewriting the rules text.
Fair Dealing
While the right to fair dealing is an integral user’s right that must not be interpreted restrictively, it is a less reliable defence for commercial publishing than retro-cloning. Fair dealing requires the use to be for one of the enumerated purposes (e.g., research, private study, criticism) and must be “fair”.[15]
First, there is no obvious connection between the use of WotC’s copyright and the enumerated categories of fair dealing of research, private study, education, parody, satire, criticism, review or news reporting.[16] The best option would likely be research or private study, as they are interpreted quite broadly.[17] But even still, any connection is tenuous at best.
Commercial motives weigh against the fairness factors under the purpose of dealing.[18] Since many actual-play series generate significant revenue, and selling supplemental rulebooks constitutes commercial competition, the fair dealing analysis would likely fail on the factor concerning the effect of the dealing on the work, as the unauthorized reproduction would likely compete with the market for the original derivative works WotC sought to control. However, it could be argued that the dissemination of this content leads to increased sales of WotC’s works.[19]
Alternative Systems
Creators also pivoted to entirely different mechanical systems, like Powered by the Apocalypse or Kids on Bikes, the creators of which were more open to creators using and profiting off their intellectual property. Some creators even sought to create their own mechanics and copyrighted expressions of them to ensure they have ultimate control.
The Open RPG Creative Licence (ORC)
The TTRPG community as a whole sought to bring a permanent, independent and secure framework for sharing game rules and mechanics in light of the controversy. The Open Creative Licence[20] is designed to be perpetual, irrevocable and system-agnostic so that any RPG publisher can use the ORC to ensure their game is publicly available.[21] Further, the ORCe expressly set out what, under the work, remained a proprietary right of the creator (such as setting and story).[22]
Lastly, the ORC grants users the right to use the licensed material in all media and formats to avoid the media restrictions that were rumoured under the new WotC licence.[23]
Conclusion
The ultimate resolution of the controversy—the placement of the rules under the irrevocable Creative Commons license and the community development of the independent Open RPG Creative License provides both RPG publishers and content creators with a superior, permanent, and decentralized form of IP security, minimizing the future risk of reliance on a single corporation’s contractual terms under Canadian copyright law.
[1] E. Evans-Thirwell, “The D&D Open Game License controversy, explained” Washington Post (19 January 2023) https://www.washingtonpost.com/video-games/2023/01/19/dungeons-and-dragons-open-game-license-wizards-of-the-coast-explained/ [Washington Post Article].
[2] T. Lamoureux, “Can Wizards of the Coast ‘Deauthorize’ OGL 1.0a? What Rights Do Third Party Creators Have Within Tabletop RPG Systems, and Does Wizards of the Coast have the Right to Take Them Back?” (17 January 2023) https://bnsklaw.com.
[3] Arcane Library, “How To Use The Open Game License (OGL)” (16 October 2020) http://thearcanelibrary.com.
[4] D&D Beyond, “System Reference Document v5.2.1” (updated May 27, 2025) https://www.dndbeyond.com.
[5] Winkler v. Hendley, 2021 FC 498 and CCH Canadian Ltd v Law Society of Upper Canada (LSUC), 2004 SCC 13 [CCH].
[6] Copyright Act, RSC 1985, c C-42 at s 5.
[7] Cinar Corporations v Robinson, 2013 SCC 73 [Cinar].
[8]Copyright Act, RSC 1985, c C-42 at s 2(literary work); see also Exxon Corp v Exxon Insurance Consultants Intl. Ltd., [1982] Ch. 119, discussion of literary works as essentially works expressed in print or writing.
[9] Copyright Act, RSC 1985, c C-42 at s 3(1).
[10] Washington Post Article.
[11] L. Codega, “Dungeons & Dragons’ New License Tightens Its Grip on Competition” Gizmodo (5 January 2023) https://gizmodo.com/dnd-wizards-of-the-coast-ogl-1-1-open-gaming-license-1849950634.
[12] Copyright Act, RSC 1985, c C-42 at s 5.
[13] Cinar.
[14] CCH.
[15] Copyright Act, RSC 1985, c C-42 at s 29. See also CCH.
[16] Copyright Act, RSC 1985, c C-42 at ss 29-29.2.
[17] CCH.
[18] CCH.
[19] Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36.
[20] Paizo, “ORC License” (n.d.) https://paizo.com (accessed 28 November 2025) [Paizo].
[21] D. Kling Lorestsen, “Final Version of the Open RPG Creative License Released by Paizo” (30 June 2023) https://www.tabletopgamingnews.com.
[22] Level Up “Using the ORC License” (n.d.) https://a5esrd.com (accessed 28 November 2025).
[23] Paizo.
Copyright & Social Media
Communications Law