Sports tech and the Digital Copyright Directive

On 15 April European law-makers gave the final sign-off to the EU’s controversial Digital Copyright Directive. EU member states will have two years to implement the new requirements in their own laws. Although it is clear that creative people, sports professionals and journalists should be able to earn a living from their work, many fear that the new law will crush internet freedom and stifle creativity.

Alongside other tweaks and updates to the existing law, the Directive will bring in two major changes to use of digital material online, platform liability and digital publishing rights. Lobbying to block the new law has been intense, with both tech giants (like Google) and free internet activists united in opposition. The impact of the Directive on sports tech and e-sports is likely to be substantial, with big changes expected in the treatment of user uploaded footage, streamed gaming and internet memes.

The main area of concern for the world of sports tech and gaming is Article 17. (This used to be called “Article 13” in the draft legislation, and that is how many people still describe it.) Essentially, Article 17 sets out rules to make online platforms responsible for clearing copyright in content uploaded by users. The aim is to transfer more of the revenue generated by platforms to the creators of hosted content.

Clearly, outright infringement like unlicensed streaming of live footage is illegal, as is making available recorded material on services set up to avoid paying licence fees. What is new here is placing legal responsibility on platform services for all user uploaded content.

Online gaming, game-casting and sports-casting

Online gaming services like Twitch are worried about Article 17. Twitch’s service enables gamers to stream their activity and interact with viewers. This live interaction video-with-chat service has extended into other areas like live sports commentary. Many game companies currently see this kind of activity as promotional, and do not charge licence fees. The launch of Apex Legends by Electronic Arts earlier this year relied on well-known Twitch streamers who were paid to promote the game. But other kinds of material could cause problems.

Twitch CEO Emmett Shear has described the new law as unclear, leaving “a ton of questions open”. For Shear, enabling people to experiment is really important. The big players will be able to manage and pay for the licensing procedures and blocking technology that Article 17 requires, but new entrants will find this much more difficult. There is a carve-out from some of the tougher requirements for smaller companies that are under three years old, but many of the obligations remain, and the grace period is not long enough for most technology start-ups to engage with sophisticated compliance obligations.

Fan engagement

Engaging with fans both real-time and through social media is a growing part of sports tech.  Most sports and gaming organisations fully appreciate the importance of online engagement with their audiences. Gone are the days of passive viewing. Maintaining a passionate fan base particularly among young followers requires a new approach.  Both within the stadium and outside, sports organisations use technology to add to the experience, both through their own websites and apps, and across social media.

For many fans, having the opportunity to contribute is a key part of engagement. Sports organisations and teams generally maintain tight control over their own platforms and feeds, but fan engagement spreads beyond this. Unofficial fan sites and feeds are important elements in the ecosystem. The Manchester United fan page on Facebook, for example, boasts 1 million followers. Article 17 is likely to chill this kind of activity. Platform companies will have to consider how to control the inclusion of unlicensed video clips and images in user uploads so that they do not incur liability.   

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