COPYRIGHT LAW AND YOUTUBETWITCH GAMEPLAY AnnaLisa Tie 23

COPYRIGHT LAW AND YOUTUBE/TWITCH GAMEPLAY Anna-Lisa Tie 23 October 2019

Gameplay on You. Tube ■ As of 2014, 15% of all You. Tube content is gaming-related ■ “Let’s Plays” – recorded videos of gameplay uploaded by users onto platforms such as You. Tube ■ You. Tube Gaming app launched in 2015 centred around video games and livestreaming ■ Now phased out, but the gaming portal was moved into the main app

Streaming on Twitch. tv ■ Owned by Amazon since 2014, large focus on video gameplay ■ >2 million broadcasters and 15 million daily active users ■ Users livestream playthroughs and e. Sports competitions ■ Viewers interact with streamer via chat features

Just how popular is this online gaming content? https: //www. pcgamesn. com/twitch-youtube-netflix-subscribers

What to do the developers think? Campo Santo (Firewatch) Ryan Green, Numinous Games (That Dragon, Cancer)

How do Let’s Plays and Livestreams fit under Copyright Legislation? U. S. Copyright Act of 1976 Exclusive rights of copyright holders (17 USC § 106): 1. Reproducing the work in copies or phonorecords 2. Preparing derivative works 3. Distributing copies/phonorecords of the work to the public by sale or other transfer of ownership, or rental, lease, lending 4. Performing the work publicly (literary, musical, dramatic, choreographic works, pantomimes, motion pictures, other audio-visual work) 5. Displaying the work publicly (literary, musical, dramatic, choreographic works, pantomimes, pictorial, graphic, sculptural works) 6. Performing sound records publicly by means of digital audio transmissions Canada Copyright Act, RSC 1985, c C 42 Similar rights to produce or reproduce copyrighted works or any substantial part thereof (s 3(1)) See especially: ■ Producing, reproducing, performing or publishing any translation of the work (s 3(1)(a)) ■ Communicating any literary, dramatic, musical or artistic work to the public by telecommunication (s 3(1)(f))

Digital Millennium Copyright Act of 1998 (‘DMCA’) Title II: Online Copyright Infringement Liability Limitation Act (‘OCILLA’) ■ ‘Safe harbor’ provision protects online/internet service providers against liability for copyright infringement, provided the platform promptly removes access to the infringing material when it is put on notice (17 USC § 512) DMCA Notice-and-Takedown Process User uploads content that contains copyrighted material onto an internet service provider (‘ISP’) If a counter notice is filed, the material may be restored, or the copyright owner could file a lawsuit ISP removes access to the material Copyright owner sends infringement notice of to the ISP (17 USC § 512(c)(3)) On You. Tube, the user will also receive a copyright strike User may accept the takedown, or challenge it by filing a counter notice DMCA takedown cases have never reached litigation

Back to Campo Santo…

Seems problematic… DMCA takedown notices can be filed for: ■ Copyright infringement ■ Dissociating from the user’s character/brand ■ Shutting down negative criticism of products

Questionable use of takedowns & copyright strikes

False Copyright Claims (You. Tube v Brady) See also: 17 USC § 512(f) – Misrepresentations https: //torrentfreak. com/youtube-settles-lawsuit-with-alleged-dmca-extortionscammer-for-25000 -191016/

Compare with the Canadian ‘Notice-and-Notice’ Regime Copyright Modernization Act, SC 2012 User uploads content that contains copyrighted material onto an ISP retains records that allow the user’s identity to be determined for 6 months or 1 year (s 41. 26(1)(b)) ISP forwards the notice to the alleged infringer “as soon as feasible” (s 41. 26(1)(a)) Copyright owner sends notice claiming infringement to the ISP (s 41. 25) ISP informs the copyright owner of successful forwarding, or if not, the reason why forwarding was not possible (s 41. 26(1)(a))

Back to You. Tube’s Copyright Strike System

What about fair use? Copyright Act of 1976 Recall the four factors (17 USC § 107): 1. Purpose and character of the use – extent that the work is “transformative” (? ? ? ) 2. Nature of the copyrighted work 3. Amount/substantiality of the portion used in relation to the whole copyrighted work (? ? ? ) 4. Effect of use upon the potential market for or value of the work (? ? ? )

Fair Dealing in Canada Copyright Act, RSC 1985, c C -42 CCH Canadian Ltd v Law Society of Upper Canada (2004) 1 SCR 339 The fair dealing exception applies if the copyrighted work is used for purposes of: Six factors to consider when asking if the dealing is “fair”: ■ ■ ■ Research, private study, education, parody, or satire (s 29) Criticism or review (s 29. 1) News reporting (s 29. 2) ■ Purpose of the dealing ■ Character of the dealing ■ Nature of the work ■ Amount of the dealing ■ Effect of the dealing on the work ■ Availability of alternatives Note that the SCC held that fair dealing is a “user’s right”, not an exception, and “it must not be interpreted restrictively”.

Twitch + Audible Magic ■ Partnering to review videos on demand (VODs) for copyrighted music ■ Parts of a video that contain copyrighted music are muted ■ Does not affect live broadcasts

You. Tube’s Content ID System ■ Copyright holders (developers) can register to keep their material in a database ■ Content ID system scans users’ videos for copyrighted material ■ Where there is a match, the video is flagged and the copyright holder is notified Adrian Chu, ‘You. Tube’s corporate copyright censorship system restricts user expression’, Harker Aquila (Web Page, 13 February 2016) <https: //harkeraquila. com/29864/opinion/youtubes-corporate-copyright-censorshipsystem/>. ■ Copyright holder has 3 options: – Block the video – Monetise the video (redirect revenue) – Track the video’s viewership statistics

Where’s the fair use in Content ID? Lenz v Universal Music Corp. , 572 F Supp 2 d 1145 (ND Cal 2008) ■ Stephanie Lenz uploaded a 29 second home video on You. Tube of her children dancing to a copyrighted song in the background ■ Music label sent You. Tube a DMCA takedown notice ■ Fair use upheld – the copyright holder should have first considered whether Lenz’s video was fair use What’s the problem? ■ Copyright holders simply register for Content ID and their material is stored in the database ■ System scans videos and flags those with matches to content in the database

Unresolved Questions ■ Would video game Let’s Plays/streams be “fair use”/“fair dealing”? ■ How can platforms such as You. Tube and Twitch improve their current procedures to deal with copyrighted material? ■ Is there a better way to reconcile the interests of game developers and streamers?

Final Sticking Point – EU Copyright Directive Article 13 (1) – OSPs/ISPs must obtain authorisation from the copyright holder to make copyrighted works available to the public. (4) – Liable for unauthorised material unless able to demonstrate: a) Best efforts to obtain an authorisation; and b) Best efforts to ensure the unavailability of those works; and c) Acted expeditiously to remove or disable access when notified.