Content copyright laws are changing, and streamers are in the firing line.
How things used to be:
1998 gave us the Digital Millennium Copyright Act (the “DMCA”) and the “Safe Harbor”, which was created as a compromise between content owners and ISPs. The Safe Harbor allows ISPs and websites that host user content (e.g., YouTube, Twitch, Facebook) to have immunity from copyright infringement claims if they meet certain conditions.
What are the conditions of the DCMA Safe Harbor?
The Safe Harbor requires the site to have a DMCA policy and act promptly — by taking down content — in response to DMCA “takedown” notices. Host sites need only act when notified of potential infringement (they don’t have to police the site themselves) and take action against repeat infringers i.e. by cancelling accounts.
Why change from the DCMA Safe Harbor?
A big problem with the Safe Harbor is that there’s no real protection for falsely accused content. Also, thanks to the ease of setting up new accounts and re-posting illegal material, content owners are often engaged in an endless game of online whac-a-mole.
The main change of the European Union’s Directive on Copyright in the Digital Single Market (the “EU Directive”) is the process for policing allegedly infringing content.
Unlike the Safe Harbor, the EU Directive requires ISPs or other content-sharing sites to get permission from rights owners (or at least make best efforts to get permission) before sharing content. In reality, this means that ISPs will have no choice but to institute upload filters and otherwise actively monitor what users are posting to their platforms. One issue is that this may (and some say will likely) result in ISPs removing or even denying to post legitimate content. And, there is no mechanism in the EU Directive for disputing improperly filtered/disallowed material.
I’m a streamer, not a corporation. Why do I care?
As a streamer, if you are posting third-party content you may be technically infringing (unless you have a license). This certainly applies to video games where the game developer typically holds significant rights and therefore the ability to control who is permitted to share gameplay videos or “publicly perform” the game at esports competitions.
The EU Directive forces websites to be more aggressive about enforcement, which means that it is more likely that content is removed — both infringing content and perhaps “harmless” content that would not have been targeted under the DMCA framework. This could have an immediate impact on streamers.