Legal experts weigh in on controversial European copyright directive

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, GamesIndustry.biz 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.