How will the EU Copyright Directive impact the esports industry?

Copyright strikes and takedowns are a common headache for streamers and other content creators in the esports industry. With the implementation of a new Copyright Directive in European member states looming, the use of copyright detection bots, strikes and takedowns may become even more prevalent.

The EU Copyright Directive and Article 17, in a nutshell

On June 20, 2018, the Directive on Copyright in the Digital Single Market (the “Directive“) was introduced to European Parliament. The proposal was revised in September of that year and the final version was approved in spring of 2019. The Directive was adopted and came into force on June 6, 2019, giving European member states two years to implement domestic legislation that meets the Directive’s requirements (i.e. June 6, 2021).

The most controversial provision is Article 17 (formerly draft Article 13), which has gained notoriety because of its potential to disrupt the already complicated symbiotic relationship between rights holders, content creators, and web platforms like YouTube and Twitch.

In existing European law, internet service providers and online content sharing platforms, are treated as “mere conduits” for the sharing of copyright-protected content and are generally not liable for copyright infringement if they promptly take down protected material once they receive a notice from the rights-holder. This is similar to the “safe harbor” established by the Digital Millennium Copyright Act in the United States. In the Canadian context, internet service providers are generally shielded from liability if they comply with the “notice and notice” provisions of the Copyright Act.

Article 17 flips this around by requiring online content content sharing platforms obtain authorization from rights-holders, such as a licence, before protected content is shared online, including by users. If no authorization is obtained, the platform will be liable for copyright infringement unless they can show that they have met three conditions:

1. Platforms must make “best efforts” to obtain authorization from the rights-holder(s) for the copyright-protected content on their websites, including that which is shared by users.
2. Platforms must make “best efforts’ to “ensure the unavailability of specific works and other subject matter” identified by rights-holders. (NOTE: This requirement specifically does not apply to the newer, smaller platforms.)
3. Platforms must quickly remove or disable access to the protected work(s) upon receiving notice from the rights-holder and make best efforts to prevent future uploads. (NOTE: This requirement also specifically does not apply to the newer, smaller platforms.

What platforms are impacted?

Article 17 does not target all web platforms, it is specifically aimed at online platforms in which users upload a “large amount” of copyrighted content and whose main business activities include storing and providing public access to such content and the organization and promotion of content for profit.

Some platforms are exempted by Article 17, including specifically:

1. not-for-profit online encyclopedias (e.g. Wikipedia),
2. not-for-profit educational and scientific repositories,
3. open source software-developing and-sharing platforms (e.g. GitHub),
4. providers of electronic communications services (e.g. Bell, Rogers, and other internet service providers),
5. online marketplaces (e.g. Kijiji or eBay),
6. B2B cloud services and cloud services that allow users to upload content for their own use (e.g. Dropbox).

Impact on content creators and game developers

The big platforms in the esports content creation ecosystem (i.e. YouTube, Twitch, Facebook Gaming, etc.) are squarely in the sights of Article 17. Considering the sheer number of people sharing copyrighted content on these platforms, Article 17 will likely prompt these companies to increase their use of automated content moderation. The increased threat of liability for copyright infringement may make some platforms default to taking copyrighted content down and then addressing complaints from users.

Another concern is with respect to the scope of content that must be made unavailable to the public. While the Directive confirms that “cooperation” between platforms and rights-holders will not prevent the availability of content which does not infringe copyright, such as satirical content, it is certainly possible that the algorithms platforms implement to detect infringement will confuse legitimate uses of copyright-protected works for copyright infringement. Also, the algorithms will likely vary from platform to platform, meaning an esports Twitch streamer who uploads their streams as videos on YouTube may have their content removed on one platform and kept up on the other.

Many game developers will still have an incentive to allow esports content creators to post their content on online platforms, as it’s viewed as a form of free advertising. Game developers may also be content to negotiate licence agreements with online platforms and collect fees. However, some game developers, such as Nintendo, have threatened platforms to take down unauthorized streams in the past. Some game developers may prefer to use the framework provided by the Directive to request web platforms remove or disable unauthorized content.

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The main takeaway is that the three-way tug-of-war between copyright owners, content creators, and web platforms isn’t ending any time soon and just got more complex. While it remains to be seen precisely how (and when) the European Copyright Directive will become the law of the land in European member states, the Directive will undoubtedly have major impacts on the esports industry.