Esports and video game streaming have become a popular pastime and a big business with gaming platforms such as Twitch and Mixer[i] attracting millions of viewers apiece and tournaments for popular games such as Fortnight awarding substantial prizes.[ii]
This leads to the assumption that streaming is a safe legal activity. Instead, most streamers are in a legal grey area [iii] through the public performance of a copyright protected work. While this can be rather surprising to the public who would expect that activities that are likely illegal would not develop into a growing mainstream business, the tolerance of infringing content by the game publishers is logical in this instance from a business standpoint as streaming is free advertising [iv] that could help grow the game.
A potential issue for the future of streaming, however, is the European Copyright Directive. A point of controversy throughout the process of drafting was Article 13[v] which critics have held will lead to the censoring of the internet.
Article 13 has since been passed as Article 17 and is concerned with the sharing of protected content online by service providers.[vi] Article 17 moves away from the framework provided by the DMCA and its safe harbour provisions.[vii] Instead, it changes the landscape for service providers or content hosts by explicitly choosing to hold them liable. Online services that distribute content must obtain a licence from a rights holder. Beyond this requirement, sections 4 (b) and 4 (c) of Article 17 require online content providers to make best efforts to prevent copyright protected work to be uploaded, or reuploaded in the future.[viii]
So, the main question at issue here will be enforcement. If enforcement will be done on a discretionary basis requiring a complaint to be made than the streaming industry can persist barring future issues. Recent selective actions by Twitch to take down streams in Europe support the position that takedowns will occur on a complaints basis. [ix] Especially as some of the takedowns which are on done on a copyright basis have been filed for reasons outside of the purely economic sense of copyright law but out of disgust for certain streamers behaviours while playing games such as the use of racial slurs live.[x] It is inevitable for some rights holder to take issue with some streamer or any of the individual streams in the future.
Even if complaints are made, it is possible for the state of affairs to continue as they are as the text of Article 17 section 4 (b) states that the rights holders have to have “provided the service providers with the relevant and necessary information” before content can be blocked as infringing.[xi] If no details are provided, it is possible that no requirement to block the stream or other content need take place.
If, however, the European Union or one of its member states take a more proactive approach to ensuring services operating within it are compliant, as they are staring to do with fines issued under the GDPR,[xii] streaming services such as Twitch could become more limited in scope and functionally become a live game streaming version of Netflix or be blocked in Europe altogether.
Written by Matthew Drinovac, Osgoode JD Candidate, enrolled in Professors D’Agostino and Vaver 2019/2020 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.
[i] Leo Sun, “Microsoft’s Mixer is Catching up to Amazon’s Twitch and Google’s YouTube” (6 October 2019), online: <https://www.fool.com/investing/2019/10/09/microsofts-mixer-is-catching-up-to-amazons-twitch.aspx>.
[ii] Chris Bumbaca, “16-year-old Kyle ‘Bugha’ Giersdorf takes home prize for Fortnight World Cup win” (28 July 2019), online: <https://www.usatoday.com/story/sports/gaming/2019/07/28/fortnite-kyle-bugha-giersdorf-wins-3-million-world-cup/1853058001/>.
[iii] Scott Alan Burroughs, “A Twitch In Time” (5 September 2018), online: <https://abovethelaw.com/2018/09/a-twitch-in-time-legal-issues-catch-up-with-popular-game-broadcasting-platform/>.
[iv] Julia Alexander, “YouTube CEO says EU regulation will be bad for creators” (22 October 2018), online: <https://www.theverge.com/2018/10/22/18008406/article-13-copyright-directive-youtube-susan-wojcicki-robert-kyncl>
[v] Cory Doctorow, The Final Version of the EU’s Copyright Directive is the Worst One Yet” (13 February 2019), online: <https://www.eff.org/deeplinks/2019/02/final-version-eus-copyright-directive-worst-one-yet>.
[vi] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.
[vii] Digital Media Law Project, “Protecting Yourself Against Copyright Claims Based on User Content” (2014), online: <http://www.dmlp.org/legal-guide/protecting-yourself-against-copyright-claims-based-user-content>.
[viii] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.
[ix] Raj Shah, “Twitch Bans Several Accounts for Unauthorized CSGO Berlin Major Streaming” (27 August 2019), online: <https://www.talkesport.com/news/twitch-bans-several-accounts-for-unauthorized-csgo-berlin-major-streaming/>.
[x] Owen Good, “Firewatch creator vows DMCA retaliation against PewDiePie for racist slur used in stream” (10 September 2017), online: <https://www.polygon.com/2017/9/10/16285188/pewdie-pie-racist-slur-firewatch-retaliation-dmca>.
[xi] European Union Directive 2019/790, online: <https://eur-lex.europa.eu/eli/dir/2019/790/oj>.
[xii] Victoria Arnold, “What the latest GDPR fines reveal about authorities’ attitude” (30 September 2019), online: <https://www.lexology.com/library/detail.aspx?g=a4054dd5-3215-4f69-bf13-3f2858600ad1>.
