Kategorie directive

How Article 17 of the EU Copyright Directive threatens Let's Play and Walkthrough Culture   Am 29. August 2019 - 17:28 Uhr von Till Kreutzer

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. - 

Council lets copyright reform pass – The die is cast   Am 16. April 2019 - 18:10 Uhr von Tom Hirche

The controversial EU directive on copyright reform has been adopted. On April 15, 2019, the majority of EU member states voted in favour of the directive. Germany additionally submitted a protocol declaration. Weiter

Fateful Day: EU Parliament Approves Copyright Reform – No Amendments Made   Am 26. März 2019 - 23:06 Uhr von Tom Hirche

Today, the Members of the European Parliament voted in favour of the copyright reform – including the obligation for upload filters and an ancillary copyright for press publishers. Weiter

Reda: "You'll wish the mails had all come from bots."   Am 6. März 2019 - 20:11 Uhr von Tom Hirche

The way is clear for the final vote of the European Parliament on the copyright reform. On 27 February, a majority of its Legal Affairs Committee (JURI) voted in favour of the negotiated compromise. However, EU citizens' criticism of the plan is growing louder and louder - just before the European elections. Weiter

Council of Ministers approves compromise on copyright reform   Am 24. Februar 2019 - 21:43 Uhr von Tom Hirche

On Wednesday, government representatives of the EU member states approved the compromise on the Copyright Directive in the Council of Ministers. The reform has thus taken another hurdle. But the big showdown is still to come. Weiter

EU institutions agree on final text of Article 11   Am 14. Februar 2019 - 17:08 Uhr von Tom Hirche

Last night, the trilogue negotiations on the proposed EU copyright reform were concluded. One result of these negotiations is an ancillary copyright for press publishers which is very similar to the German regulation but will cause even greater damage. This can still be prevented! Weiter

Yet another independent study bashes Article 11   Am 12. Februar 2019 - 21:58 Uhr von Tom Hirche

Today, the final report of the so-called Cairncross review was published. It thoroughly looks at how to sustain the production and distribution of high-quality journalism in the UK. In doing so, some interesting points regarding an ancillary copyright for press publishers are raised. Weiter

Weitere Infos zu dieser News

Increasing number of rightholders reject EU copyright reform   Am 8. Februar 2019 - 19:02 Uhr von Tom Hirche

The Romanian Council Presidency still tries to reach a compromise with the Member States on the planned directive on copyright reform. Meanwhile, more and more influential rightholders are now denying their support, putting additional pressure on politicians. Weiter

Broad coalition of 89 organisations calls for deletion of Article 11 and 13   Am 30. Januar 2019 - 15:49 Uhr von Tom Hirche

The trilogue negotiations on the upcoming copyright Directive are still stuck. EDRi has taken this opportunity to send out an open letter to the negotiators that not only we but also numerous international and Europe-based organisations have co-signed. Weiter

Weitere Infos zu dieser News

Dispute between EU states brings negotiations to a halt   Am 23. Januar 2019 - 0:15 Uhr von Tom Hirche

Representatives of the Member States in the European Council have not yet managed to reach a compromise. The trilogue negotiations are therefore continuing to drag on indefinitely. That gives cause for hope. Weiter

No political consensus in 2018   Am 17. Dezember 2018 - 18:06 Uhr von Tom Hirche

The last trilogue negotiations for this year between representatives of European Parliament, European Commission and European Council took place last week. Again, an overall agreement could not be reached. Weiter

"Other nations should be wary of following the EU’s lead on this particular initiative."   Am 23. November 2018 - 16:37 Uhr von Tom Hirche

The European Commission, Council and Parliament are still negotiating the exact wording of an ancillary copyright for press publishers that will most likely be part of the upcoming EU Directive on copyright. If you have not yet heard about this new right or only a little and if you want to learn more about it, then Pamela Samuelson, who is the Richard M. Sherman Distinguished Professor of Law at Berkeley Law School, has just written the perfect article for you. Weiter

Open letter: "The EU Copyright Directive is failing" and should be stopped   Am 26. April 2018 - 17:39 Uhr von Tom Hirche

Another open letter has been sent to the members of the European Parliament, this time by academics from 25 leading intellectual property research centres in Europe. They request them to stop the legislation process altogether if it continues to progress in the form proposed by the recent drafts of the Bulgarian Presidency and JURI rapporteur Voss. Weiter

Weitere Infos zu dieser News

Open letter: 59 organisations encourage Axel Voss to delete ancillary copyright from the DSM directive   Am 19. April 2018 - 11:29 Uhr von Tom Hirche

In a couple of weeks, the Legal Committee of the European Parliament (JURI) will release its opinion on the EU Commission’s proposal for a new copyright directive. The responsible rapporteur MEP Axel Voss (EPP, Germany) is currently making his final conversations with the shadow rapporteurs of the other political groups. For this very reason, together with Communia and OpenMedia/Safe-the-Link, we have sent out an open letter that was co-signed by 56 further organisations. Weiter

Small publishers raise their voices against link tax   Am 4. Januar 2018 - 14:41 Uhr von Tom Hirche

A few weeks ago, several press agencies have joined the large publishing houses in their ongoing lobbying for a new neighbouring right. Carlos Astiz, Chairman of the European Innovative Media Publishers, was disappointed by this endorsement and stood once again to take a stance for the smaller publishers, content creators and journalists. Weiter

EU Commission tried to hide a study that debunks the publisher's right as ineffective   Am 3. Januar 2018 - 13:26 Uhr von Tom Hirche

What once seemed to be a single incident turned out to be a habit: Once again it has been revealed that the EU Commission tried to hide the results of a self-requested copyright-related study because the results were not suitable. This time the study is all about "Online News Aggregation and Neighbouring Rights for News Publishers". Weiter

Press agencies join the collective moaning and demand new publisher's right   Am 14. Dezember 2017 - 14:25 Uhr von Tom Hirche

Some of Europe's largest press agencies urge the EU institutions to introduce the proposed ancillary copyright for publishers plus they also want to belong to the beneficiaries. Among those agencies are the German DPA, the French AFP as well as the Spanish EFE. Weiter

Weitere Infos zu dieser News

JURI members try to water down results of their own requested study   Am 8. Dezember 2017 - 16:21 Uhr von Tom Hirche

A couple of months ago, the European Parliament’s directorate general for internal policies of the union had commissioned a study on the proposed new right for publishers. After the results were published last October, they were finally presented to members of the Legal Affairs Committee yesterday. What should have been an informing workshop turned out to be yet another opportunity for the right's supporters to shut down arguments with their lies and to cause confusion. Weiter

New open letter representing a broad spectrum of stakeholders   Am 4. Dezember 2017 - 14:37 Uhr von Tom Hirche

Together with over 80 other organizations, we have co-signed an open letter to the Ministers attending the Competitiveness Council and the EU institutions last week to once again warn them of causing severe damage. Weiter

Weitere Infos zu dieser News

LIBE Committee remains silent on link tax   Am 21. November 2017 - 1:00 Uhr von Tom Hirche

Today, the European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) has finally voted on its opinion on the Commission's proposal for a new copyright directive. While problematic provisions for mandatory content filtering have been tackled, the Committee did not take any stand when it came to the ancillary copyright for press publishers aka the link tax. Weiter