Memes and GIFs
Much of the concern from the internet community has been around the use of memes and GIFs. Platforms are concerned that where these make use of copyright content, they will become responsible for uploads by users in chat and commentary. Platforms cannot anticipate what kinds of material users will deploy – images or clips taken from cartoons, movies and TV shows, as well as snippets of sports broadcasts, are popular among internet users. Tech companies are concerned about the prospect of having to seek licences from a huge number of different organisations in order to clear this kind of material, or alternatively take on onerous monitoring and blocking responsibilities on user forums and chats.
EU lawmakers dispute these concerns. The European Parliament and Council have repeatedly emphasised that there is no intention to stop internet users from creating and sharing memes and GIFs. The protections in copyright law for review, parody, caricature, etc will be made compulsory across the EU. But being certain that a particular use falls within an exception is difficult. Cases that have gone all the way to the top (like the 2014 Deckmyn political cartoon case) demonstrate how nuanced these questions are. It is hard to predict what a court will decide on the day.
What do the content producers think?
You might expect content producers, broadcasters and publishers to be firmly behind the new law, but many feel that it has been watered down too much to be valuable. In an open letter published in February, content producers including The Premier League, La Liga and the DFL joined forces with other organisations in objecting to the text. They believe that existing law might serve them better. An ongoing legal dispute between YouTube and owners of music recordings and scientific publications (Case C-682/18) is expected to clarify the extent of platform liability under the existing law. If the ruling goes their way, sports organisations may be better protected under current rules than the new law.
Will the new law have a chilling effect?
Sports tech and online gaming is a rapidly developing field. Many of the models of activity which are now prevalent are still new, and already becoming outdated. Trying to map copyright law onto this shifting pattern of activity in a way that does not stifle innovation is not easy.
Much of this developing activity is in itself creative. There is a danger that sweeping controls aimed at protecting the rights of sports professionals and bodies, broadcasters and game publishers will be at the expense of these new creators.
Twitch sees itself as building a set of new careers, enabling those with a talent for sports-casting or online gaming to develop as professionals and earn a living. Streamers like this are themselves creative people, and provide an increasing audience, mainly the young, with forms of entertainment that they seek out and value.
Next steps, and a need to engage
Although the Digital Copyright Directive has been finally approved, it now needs to be implemented by each EU country in their own laws over the next two years. (Whether the UK will track the changes is currently uncertain.) The Directive includes goal-led and subjective terminology, like “best efforts”, “high standards of professional diligence” and “proportionality”. While this is seen by many as a problem because of the vague nature of the obligations and the difficulty that companies will have in being confident that they comply, it is also an opportunity. Fleshing out the Directive into detailed law will give some scope for flexibility. The EU Commission will be working with stakeholders and national governments to make this happen in a consistent and positive way. There is still a real opportunity for those with concerns to influence the process.