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Article 13; What Will it Mean for the Gaming Community?

10 April 2019

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After months of heated debate, the European Parliament (EU) has now passed the European Union Directive on Copyright in the Digital Single Market into law.

Known as Article 13, after one of its most controversial sections, the EU Directive on Copyright, aims to limit the way copyrighted content gets shared on the internet. What made Article 13 so contentious was the need for online platforms such as YouTube, Facebook, Twitch and Twitter to start policing user content, either by filtering or removing copyrighted material from their websites.

Article 13 first gained notoriety in 2016, with many internet users fearing the wording of the article would spell the end of memes. The EU has since said memes will be exempt from the Directive, but how exactly this exemption will apply is still unknown

But Article 13 and the EU Directive on Copyright has bigger implications than the meme economy, it’s going to affect the gaming community too.

Twitch CEO Emmett Shear has already gone on the record stating that the law “is too vague” and will “make things messy for his company.”

How Will it Work?

Despite claiming they wouldn’t, the EU propose to enforce the Directive, and Article 13 using blanket filters.

All internet platforms where you can upload media, as well as ISP’s, will need to install a filter that can detect copyright infringement on behalf of major media companies. If the filter detects an infringement, the offending content will be removed or blocked.

But exactly how this filter will look in practice, is currently anyone’s guess. It’s most likely we’ll see something like YouTube’s content ID system.

YouTube also use the same algorithm they use to check for content ID to check for violent or pornographic material on their platform. The algorithm flags suspicious content, and human moderators check it to see if it infringes on the Terms of Service. Human moderators also deal with the user generated reports.

Dr Joanne Gray is a Postdoctoral Research Fellow at Queensland University of Technology’s Faculty of Law, who’s had plenty of experience with YouTube and content ID. “On YouTube what is happening is the gaming videos are licensed through content ID. The way that Content ID works is the rights holders can opt to monetize or block videos or track them.”

She says we’re likely to see platforms negotiating more systems like Content ID, to enforce agreements and licences. Currently, Australian gamers who are streaming gameplay are being protected not by any Fair Use laws, but by the platforms’ terms of service. “When a gamer streams gameplay from say Nintendo, will have Content ID will pick up that that’s their work and they’ll either block it, or they’ll monetize it. That’s a license. You’re getting them permission through the Terms of Service of YouTube and through the Content ID platform.”

Are There Risks for Digital Content Creators in Australia?

According to Dr. Gray, there are two main risks for digital content creators. Firstly, there’s the question of whether the systems and filters will be financially or technologically viable across different types of platform once they come into play. Secondly, the existing problems of systems like Content ID, which will now have the “potential to apply broadly across the internet.” YouTube’s Content ID has been a thorn in the sides of main of the platform’s individual creators. “Contented can make mistakes, it can be frustrating dealing with these automated systems.” Dr. Gray said. Even legal uploads, which aren’t infringing on any copyrights, are demonetized and taken down in error. The YouTube appeals process is arduous, and for some creators it can result in real financial losses as they miss out on the video’s advertising income while they fight to have it reinstated.

“Monetisation I think is the next big issue that people are going to face,” she said, “as these systems are deployed more. They will grant the bigger content owners more control over the system. Questions will arise about what a fair system of monetisation for a gamer developer is, or a streamer, and the platform, what is a fair distribution of revenue between those three stakeholders.”

Aren’t Streamers and Gamers Protected Under Fair Use?

Unlike the United States, Australia also doesn’t own a Fair Use policy which protects Australian streamers and content creators when they use copyrighted content. “We’ve had several public consultations and institutions recommend the introduction of a US style fair use here in Australia and no Government has been willing to take up that policy position.”

Even before Article 13 starts coming in to play, things are already a little murky for the streaming and esports communities when it comes to copyright.

“The law is pretty unclear about whether gameplay is a fair use… The broad consensus is that game developers are tolerating gameplay and not enforcing their rights.” She said.

It’s undeniable that digital content like let’s play’s, esports competitions and reviews have all become a big part of the gaming ecosystem. “There’s generally a sentiment that’s emerged over the last decade where gameplay is looked on. It’s not on as piracy in the sense of music piracy or film piracy.” According to Dr. Gray, game developers tend to have a welcoming attitude when it comes to this sort of content.

“Rather than fair use, they see gamers sharing gameplay as part of the gaming ecosystem, and it has positive benefits marketing, promotion and creating a community around a game.” Because one of the key changes that the Directive and Article 13 bring to the table is that “platforms themselves now become liable for the copyright infringement of the users… when it comes to potential changes of liability for gamers, there isn’t an increased risk.”

While she believes there are some valid concerns, she doesn’t think Australian gamers or streamers will feel any immediate effects from the Directive until it’s been enacted by EU member states and starts to make its way into the general legal system.

“There’s a lot of room for negotiation among the platforms and rights holders. We don’t really know what it will look like when it’s implemented.” She said.

Should Australian Content Creators Start Preparing for Our Own Article 13?

Although there’s no motion for an Australian version of the EU’s Directive on Copyright floating around our parliament, “the appetite for introducing stricter copyright laws in Australia is pretty high, and considerations for user rights is pretty minimal.” Said Dr. Gray.

There are somethings she suggests digital content creators can start looking in to before the changes  start to come in to play. “If you’re putting on an event or some sort of an esports event, the risk of being blocked on the day is going to increase.” She advised, “That might require a bit more diligence in terms of sorting out licenses, getting permissions, doing test runs…”

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