Legal experts weigh in on controversial European copyright directive

Legislation shifts responsibility onto platform holders, but won't necessarily affect content creators

This week members of European Parliament voted in favour of a controversial copyright directive which some critics have claimed will end the free and open internet.

Detractors of the legislation have taken particular umbridge with Article 11 and Article 17 -- formerly the much-debated Article 13. The former states that search engines and news aggregator platforms should pay to use third-party content, while the latter holds certain platform owners responsible for any content posted without a copyright licence.

While Article 11 has little bearing in the games industry, Article 17 requires video streaming services like YouTube and Twitch to license copyrighted material. In practice, this is likely to mean platform holders will need to apply filters to catch unlicensed content. While this could create a series of challenges to other sectors, spoke with several experts in the field to discuss the impact of Article 17 on the gaming and influencer industry specifically.

Jaclyn Wilkins is a specialist in games, digital media, IT, and technology and also heads up the computer games group at law firm Charles Russell Speechlys LLP. As she explains, the article makes platforms such as YouTube and Twitch responsible for the content its users upload, rather than creators. This is a notable departure from the current law, which sees platforms escape liability for infringing content copyrights because they are a "mere conduit" of information.

She predicts a mixture of three possible outcomes from the legislation: First, that platforms may have to pay for licenses to publish copyrighted content; second, that platforms may seek to pass liability on to content creators, so that if the platform is sued for a sum of money, it will counter sue the creators; third, publishers may grant permission for YouTubers to use their content in general and widen the usage rights accordingly, as this would provide PR and exposure to an engaged community.

Daniel Thomas, partner and head of litigation at Primas Law, argues the publicity generated from YouTube and Twitch may not be enough to protect streamers. While the rise of influencer culture has seen a growing symbiosis between publisher and content creator, he suggests the legislation suddenly places a lot of power back in the hands of the copyright holder.

"Can you imagine the stipulations that game studios such as Ubisoft, Nintendo and EA will place on video creators if they attempt to gain a license to stream content of their video games?" he says. "How much will they want to make from the video creator? What if the video creator thinks the game isn't all that? Will they be able to revoke the license?

"Article [17] has the potential to cause a staggering effect on online platforms and video creators in the gaming industry worldwide. Not only that, but Article [17] has the potential to limit our rights of freedom of speech in relation to the quality of, for example, video games."

The most fervent critics of the directive have been tech companies such as YouTube. In a statement to content creators, CEO Susan Wojcicki said: "This legislation poses a threat to both your livelihood and your ability to share your voice with the world."

Georgia Shriane, senior associate solicitor in the commercial and technology team at Boyes Turner, suggests otherwise however, saying existing copyright law still applies. She says that Article 17 does not intend to ban anything, but rather ensure that copyright is sought and that platform holders take responsibility for the content they host.

"A number of games licences already include permission for the sharing of the footage online in their licence or in their policies, and I expect that games creators will continue to do so as 'stopping' this footage would likely damage their sales," she says.

What Article 17 proposes is that platforms such as YouTube and Twitch would be liable for hosting copyrighted content, rather than the people who upload it. Ultimately, this adds a layer of admin and cost for the platform holders which didn't previously exist. It's important to note however, that companies like Twitch and YouTube can come to an agreement with the copyright holders -- their resistance to the legislation suggests they simply don't want to because of the increased overhead in applying content filters or paying for game license.

In essence, Article 17 intends to make the unaccountable tech giants finally accountable. Their response is to avoid and deflect, claiming that the EU is directly threatening the livelihoods of YouTube creators.

"From a creative industries perspective, today is a landmark as TV, music, publishing and film companies and professionals have lobbied hard for the directive to be approved for better protection against copyright infringement," says Laura Harper, head of the creative industries team at national law firm Shoosmiths. "It also provides these content providers with the ability to set fair commercial terms for the use of their content on the internet."

While there is a general consensus among experts that the legislation is imperfect, there is little to imply that it will negatively impact the influencer economy. YouTube and Twitch host such vast amounts of gaming content that there is little choice other than to accept legal responsibility, and work closely with copyright holders to ensure intellectual property is protected and adequately compensated. More importantly, while game companies could indeed revoke licenses for negative coverage of their products, there is very little incentive to be withholding when it comes licensing content on video platforms that receive billions of views a day.

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Latest comments (7)

It also vastly increases the resources required to legally host a competing platform to major companies offerings such as youtube, twitch would never be able to have arrisen in such an environment, much like the EU's whole anti-cookie stance simply results every single webpage giving you an annoying popup about cookies and cookieing you to the hilt anyhow, this is a poorly thought through piece of legislation by those who poorly understand the technical side of how it'll work.

Most smaller companies will have no choice but to simply prevent users from sharing anything via their own tech, without going through a major content holder(if even they are willing), it basically makes a mockery of previous fair use laws, and makes every copyright holder, able to make sweeping decisions on how you may or may not even make a video set in their game, its like turning back to clock to the closed loop controlled from the top publisher systems of the past, at the expense of the future, its good news for major publishers, and bad news for everyone else.
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Micaela Mantegna Abogamer. Interactive Media lawyer and scholar 2 years ago
Besides the stated purpose of protecting creators and the privacy of Europeans, both the new Copyright Directive and GDPR respectively, are regulatory moves against the consolidated power of Silicon Valley tech giants, trying to close Europe´s digital frontiers and reclaim an imbalance of power.
Ironically, a very possible outcome of this regulation is to raise entry barriers for competitors, start-ups and SME´s that don´t have infinite pockets to take the risk, or lack technical resources to comply, and therefore, solidify the stronghold position of said companies.

From an internet governance perspective, one of the most debatable aspects of this regulation is its potential outcome of causing fragmentation on internet ecosystem. The distributed nature of Internet makes technically infeasible to implement these changes without geo-localization and geo-blocking, which leads to vigilance and censorship. Walled gardens are going to be built. Internet was not meant to function in that way, in the words of John Gilmore "the Internet interprets censorship as damage and routes around it.”
Another potential effect is exporting these regulatory models outside Europe. Being gaming a global industry, the Copyright Directive would force the hand of publishers and platforms to set different standards across the globe, in a sort of "lawcalization process" to comply with the specific regulation. Splitting or adapting contents is not cheap, and therefore, the most efficient economic solution will be to raise the bar globally to comply with the most strict regulation. That implies that, de facto, local laws would have a extraterritorial effect on other countries, exporting by force of sheer economics, the application of foreign legal models.
Moreover, in the case of shared persistent online worlds or esports, both require uniformity, content can´t be altered regionally without distorting an even playing field for gamers and athletes.

Regarding free speech, AI filtering is not able to understand context, so fair use and copyright limitations like parody, education or media reporting would be trumped over, as content would be automatically prevented from uploading by default.
If you say that platforms are liable, you transform them in “gatekeepers” of content, and because they would probably err in the side of caution to avoid penalties, any potentially infringing content would be flagged beforehand, without giving the chance to prove that you are making a “fair use” of said contents.
Nobody doubts that creators should be adequately compensated, but this short-sighted regulation is probably the worst way of trying to do so.
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Craig Burkey Software Engineer 2 years ago
Is automatic filtering & existing flagging mechanisms enough to satisfy the platform holders legal responsibility? If it isn't and manual verification by someone skilled in fair use is require, surely the platform holders will have to block ALL EU content not from a trusted creator
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Bonnie Patterson Narrative Designer, Writer 2 years ago
Does the new copyright legislation overwrite all the provisions of the old copyright law? I'm thinking specifically of the bit that decreed that inclusion of a short extract of a copyrighted work for review purposes was fair use. Is that still the case?
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Craig Burkey Software Engineer 2 years ago
As far as I'm aware fair use still aplies but with liability now falling to platform holders given the vast amount of user generated content, determining what will & will not get them sued is gonna become prohibitively labour intensive
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Klaus Preisinger Freelance Writing 2 years ago
Germany is not fighting big corporations by creating rules that are so all-encompassing that the programming effort could only be done by a big company. Let's not be silly here.

Do you have the hash values and fingerprint data of all the works that are now under this rule? Mind you that it even includes works that aren't even digitized. Do you have the infrastructure to keep that up to date? The upload filter is a solution that is impossible by design, to facilitate the 100% chance of people being forced into another system.

Hence this legislation only exists to breath life into the GEMA system. Sure, copying DVDs was illegal, they had a copy lock, it was illegal to circumvent it and yet blanket DVDs included in their costs a small tribute to GEMA. You know, compensation for all the works that were expected to be copied onto these blank discs without compensating the author.

We all know that upload filters are nonsense, a requirement nobody can meet. So onto the alternative then, which is to nothing less than GEMA and similar systems now having the power to force big companies into licencing all content on their terms. GEMA has the legal authority to speak for all, so paying them tribute means you can skip on the filter. Remember when music videos on Youtube were unavailable in some countries? That was Google fighting being forced into GEMA. Google won back then, this is the revenge and big media companies who are the main beneficiaries of the system like it. Artists will not, since it re-establishes a system in which all their rights are signed away up a chain that will never pay them.

The future of websites is only allowing uploads from very specific countries and advertising a VPN service next to the upload button.

Edited 1 times. Last edit by Klaus Preisinger on 29th March 2019 12:56pm

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Evtim Trenkov Founder, Playright Games2 years ago
What I think the Brussels fellas fail to understand - because frankly I suspect the majority of the peeps who voted for this have never held a job in a private company - is that overbearing regulation, long consent forms and legal (sometime ambiguous) text can create business & consumer uncertainty about the next right steps. This unfortunately can often reduce the activity in a sector. And as someone said it - it will increase the costs. As content creators may now need to receive legal advise in order to be absolutely 100% certain the law is not being broken.

Taking a positive action, or otherwise said, being arsed to do something (create content, pay for something and so on) in our industry often requires a bit of incentive and transparency (making it easy to understand) what the results of an action would be (thats why good game design is also to explain the rules clearly and makes it easy to play the game itself, but not to struggle with understanding the rules).

And thats what the main problem is IMO - uncertainty and legal weight - the eu never bothered to explain in plain, consumer-friendly English language what this regulation means for each group affected and how processes will need to adapt. There is so much noise coming from everywhere. And as the EU proposed the Article it means they need to own it. To sell it and to make it easy for us to work with it. Not just drop it out there and say "job done. its your problem now". That's just crap [public] service. Their actions absolutely feel like they count again that eu-regulation savvy consultants will make a buck. A buck out of the actual content producing business. I am still having a laugh when the eu calls itself "the biggest free trading block" ... its "free trading" alright...

Edited 1 times. Last edit by Evtim Trenkov on 1st April 2019 11:10am

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