Article 17 of the new EU Copyright Directive tightens the liability of platform providers such as Youtube. Creative content from legal grey areas might disappear from the net. This especially applies to gaming videos such as Let's Plays or Walkthroughs.

In recent years, the Let's Play and Walkthrough Video genre has developed into a very special fan culture of the gaming scene. The creators reach and entertain not only a niche audience with their commented game and explanatory videos but millions of viewers by now. Their channels and broadcasts on major platforms for user-generated content, such as Youtube, are literally popular and can be regarded as contemporary pop culture.

This is all the more astonishing since Let's Play and Walkthrough Videos focus on content that creators usually don't have permission to distribute. Rather, they can in most cases rely on the fact that their videos are not only accepted by many rights holders, the game publishers, but also welcomed as advertising. But the new EU Copyright Directive could soon put an abrupt end to this practice that has worked so far.

Changes due to the Copyright Directive

Article 17 (formerly Article 13) of the Directive requires member states to hold platform providers directly liable for copyright infringements committed by their users. So far, operators such as Youtube and others have only been obliged to block or delete content when rights owners report it as illegal (also known as "notice-and-take-down").

The new, direct (primary) liability immensely increases the liability risk for platforms: from now on they are directly liable as soon as an illegal content is uploaded. From that moment on, rights holders can claim damages or injunctive relief. It is even possible that the platform operators may make themselves liable to criminal prosecution. Accordingly, they must check the contents before publication and - if identified as illegal - block them.

Licensing as a "solution ", upload filter as a subsequent problem

Since manual examination and checking of all user uploads will not be possible, especially with large platforms, they will have to use technical systems for this purpose. Inevitably, the infamous and problematic upload filters – algorithms designed to detect illegal uploads – will be used across the board.

Since this is allegedly not desired, the directive gives priority to licenses. It requires the platforms to make every effort to obtain the necessary rights for all user uploads that are subject to copyright. It should be noted that these rights must have been obtained before the publication takes place, otherwise warnings, lawsuits and damages may emerge from the very first moment.

However, a comprehensive, preventive rights clearing is impossible. On the one hand, it would require the platform provider to foresee what content its users could upload. Given the amount of uploads, this is an impossibility. On the other hand, many rights can practically not be licensed at all. This applies, among other things, to content for which there are no central institutions where all necessary rights can be cleared (such as collecting societies). This is not only the case for game content, but also for texts, films and photos.

In order to license all conceivable rights to such content, the platform provider would have to conclude individual contracts with thousands, perhaps millions of authors and rights holders. And even if this effort could be made, there would be countless cases where the rights could not be obtained. For example, because it is not clear who owns the rights; or because the rights holders no longer exist, which is often the case in the games industry; or because the rights holders cannot be found and so on. In other words, the comprehensive licensing of user content on platforms is a myth.

The result is this: The controversial upload filters are unavoidable. What they cannot recognize as licensed or at least clearly as legitimate, they will block or delete.

Let's Play: Illegal but tolerated content

As mentioned at the beginning, the publication of Let's Play and Walkthrough Videos by platform users usually violates the copyright of the game publisher. This will not change after the directive has been implemented. The EU legislator has failed to provide for a new exception that would legalise such user content.

But so far this has not been a big problem for the scene. Game publishers usually do not take action against the publication. And since under current law the platforms only have to react when the rights holder complains, the content generally remains online and is tolerated. This benefits everyone, including and especially publishers. They understand that such videos are free advertising and that an active fan culture can boost demand enormously. Deletion waves like the one in 2013 are rare.

However, game videos still get blocked or deleted from time to time. This shows that tacit acquiescence is not legally binding. Many publishers have publicly announced this tolerance in one form or another (see, for example, the information on the behaviour of individual publishers in a fandom wiki).

Legally relevant and binding "declarations of acquiescence", such as Electronic Arts, or references in the terms of use are rare exceptions. Tacit acquiescence is the general case. Usually, companies declare their intention not to take any action against such content with non-binding statements in forums, on Twitter, Facebook or other public sources. But statements like these have no legal effect and can be withdrawn at any time. In other words: they are not a license, i.e. no legally binding permission to use, neither for the creators of game videos nor for the platform providers.

Upload filters and Let's Play Videos

Hence, neither users nor platform providers normally have licenses to use games content in Let's Play or Walkthrough Videos. In view of the abundance of publishers and individual rights and the fact that there are no collecting societies for such rights, this will never be the case on a large scale.

Due to the considerable increase in liability resulting from Article 17 of the EU Copyright Directive, platform providers will have no choice but to block such content. Only then can they protect themselves against claims for damages that arise at the time of publication. The non-binding declarations of acquiescence and the previous practice of acquiescence by publishers do not protect them.

Accordingly, the upload filters will not allow such content to pass. Their automated sample comparisons and verification algorithms check the legal status of user uploads to see whether they are legal or illegal. They cannot judge whether content is illegal but tolerated. As a result, huge amounts of Let's Play and Walkthrough content could be blocked or deleted, many creators could close their channels preventively. This would mean that this special, globally popular fan culture would almost disappear.

Possible solution

Although national legislators cannot completely avoid this horror scenario, they can ease it when transposing the Directive into their national laws. They could promote centralised licensing solutions and flat-rate licences. It could also be envisaged that platform providers would only have to clarify rights if this is practically possible and reasonable.

Only when transposed into national law it will be made clear what exactly is meant by "all efforts" which, according to Article 17, must be made by the platforms to obtain all necessary rights rights. If legislators define these requirements very extensively, this will lead to an extension of filtering. If, on the other hand, they formulate them with attention and as precisely as possible, this reduces the platforms' pressure to filter.

tl;dr

Article 17 can cause a great deal of user content to disappear from the Internet, which today is illegal but enriches the Internet with the tolerance of the rights holders. Game videos are used here as an example to describe how universally damaging the transposition of article 17 can become: The rights holders could lose the advertising effect of the popular fan culture, the creators would not no longer be able to publish their content, the users could no longer watch it.

- This article was first published in German at iRights. Translation Tom Hirche. - 

Text freigegeben unter Creative Commons BY 3.0 de.
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