PRÁVNICKÁ FAKULTA

Streaming Video Games: Copyright Aspects

Diplomová práce

ONDŘEJ WOZNICA

Vedoucí práce: JUDr. Matěj Myška, Ph.D. Ústav práva a technologií obor Právo informačních a komunikačních technologií

Brno 2020

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Bibliografický záznam

Autor: Ondřej Woznica Právnická fakulta Masarykova univerzita Ústav práva a technologií Název práce: Streaming Video Games: Copyright Aspects Studijní program: Právo a právní věda Studijní obor: Právo informačních a komunikačních technologií Vedoucí práce: JUDr. Matěj Myška, Ph.D. Rok: 2020 Počet stran: 123 Klíčová slova: Autorské právo, Bezpečný přístav, DSM směrnice, Komunikace veřejnosti, Licenční smlouvy, Odpovědnost platforem, Videoherní streamovací platformy, Videohry

Bibliographic record

Author: Ondřej Woznica Faculty of Law Masaryk University Institute of Law and Technology Title of Thesis: Streaming Video Games: Copyright Aspects Degree Programme: Law and Legal Science Field of Study: Law of Information and Communication Technologies Supervisor: JUDr. Matěj Myška, Ph.D. Year: 2020 Number of Pages: 123 Keywords: Communication to the Public, Copyright, DSM Directive, License Agreements, Platform Liability, Safe Harbor, Video Game Streaming Platforms, Video Games

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Čestné prohlášení

Prohlašuji, že jsem diplomovou práci na téma Streaming Video Games: Copyright Aspects zpracoval sám. Veškeré prameny a zdroje informací, které jsem použil k sepsání této práce, byly citovány v poznámkách pod čarou a jsou uvedeny v seznamu použitých pramenů a literatury.

V Brně 29. června 2020 ...... Ondřej Woznica

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Abstrakt

Práce se zaměřuje na otázku videoherních streamovacích platforem jako na příklad platforem na sdílení obsahu. Práce vybírá tři specifické autorskoprávní aspekty streamování videoher, a to sdělování díla veřejnosti, autorizační problematiku a odpovědností otázku jako témata rezonující napříč prací. Práce se zaměřuje na tři otázky. Zaprvé, práce zkoumá, zda dochází v důsledku streamování počítačových her k porušení autorského práva. Zadruhé, práce zjišťuje důvody, proč dochází k porušování autorských práv. Zatřetí, práce následně zkoumá, zda dosavadní negativní praxe streamování počítačových her bude ovlivněna právním režimem dle DSM Směrnice.

Abstract

Thesis focuses on the issue of video game streaming platforms as a case of content sharing platform. Thesis selects three specific copyright aspects of video game streaming, the communication to the public, authorization issues, and liability as themes resonating throughout the thesis. Thesis subsequently inspects three questions. First, thesis seeks to answer whether video game streaming infringes copyright. Second, thesis focuses on reasons behind the copyright infringement. Third, thesis asks whether the current negative practice could be corrected under the influence of the DSM Directive.

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Poděkování

Na tomto místě bych chtěl vyjádřit své díky několika osobám, bez kterých bych tuto práci nedokázal napsat a díky kterým jsem našel zalíbení v právu informačních a komunikačních technologií.

Prvně bych chtěl poděkovat vedoucímu své práce, Matěji Myškovi, za naprosto nadstandartní přístup. Děkuji jak za čas věnovaný napříč psaním celé práce, tak, o to více, za čas věnovaný napříč celým mým studiem. Děkuji mu za jeho nadšení, které je mi inspirací, a humor, který ne vždy chápu. Děkuji za připravenost konzultovat v jakoukoliv denní dobu. Zejména však děkuji za jeho trpělivost.

Dále bych chtěl poděkovat své rodině, která mě podporovala napříč celým mým studiem. Ne stále nejsem „JUDr.“

Nadále svým kolegům provázejícím mě temnými i světlými momenty našeho společného studia. Kubovi za věčnou zásobu laskavého humoru, Danovi za zásobu dobrého vína, Míše za jištění a Kubovi za touché momenty. Bez vás by to nešlo.

Největší dík pak patří mé nejdražší Káje za její pochopení, laskavost, pečení a péči. Ze všeho nejvíce pak za obrovskou dávku trpělivosti, kterou se mnou má každý jeden den.

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Table of Content Table of Content ...... 6 Table of Terms and Abbreviations ...... 8 1. Introduction ...... 9 2. Video Game Streaming Platform ...... 14 2.1 Stakeholders...... 16 2.2 Information Society Service Provider ...... 18 2.3 Interim Conclusion ...... 21 3. Video Game as Subject of Copyright...... 23 3.1 Audiovisual Works...... 24 3.2 Computer Programs ...... 26 3.3 Databases ...... 28 3.4 Multimedia Works ...... 29 3.5 Interim Conclusion ...... 31 4. Selected Legal Aspects ...... 34 4.1 Use of Work Protected by Copyright ...... 35 4.1.1 Union Law ...... 35 4.1.2 Czech Law ...... 41 4.2 Authorization ...... 42 4.2.1 Copyright Exemptions and Limitations ...... 42 4.2.2 License Agreements ...... 43 4.3 Liability ...... 51 4.3.1 Union Law ...... 51 4.3.2 Czech Law ...... 56 4.4 Interim Conclusion ...... 63 5. DSM Directive ...... 66 5.1 Article 17 ...... 66 5.1.1 Use of Work Protected by Copyright ...... 67 5.1.2 Authorization ...... 70 5.1.3 Liability ...... 74 5.2 Changes to Video Game Streaming Platforms’ Obligations ...... 79 5.2.1 Use of Work Protected by Copyright ...... 80 5.2.2 Authorization ...... 80 5.2.3 Liability ...... 84 5.3 Implementation Recommendations ...... 85

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5.3.1 Current State of Affairs ...... 86 5.3.2 Use of Work Protected by Copyright ...... 88 5.3.3 Authorization ...... 89 5.3.4 Liability ...... 90 5.4 Interim Conclusion ...... 90 6. Case Study: Twitch ...... 93 6.1 Use of Work Protected by Copyright ...... 93 6.2 Authorization ...... 93 6.3 Liability ...... 94 6.3.1 Contractual Terms ...... 94 6.3.2 Notable Practices ...... 95 6.3.3 Primary Liability ...... 97 6.3.4 Indirect Liability ...... 98 6.3.5 Safe Harbor ...... 99 6.3.6 Injunctive Liability ...... 101 6.4 DSM Directive ...... 102 6.5 Interim Conclusion for Video Game Streaming Platforms ...... 103 7. Conclusion ...... 106 List of References ...... 109

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Table of Terms and Abbreviations Code on Liability for Minor - Zákon o odpovědnosti za přestupky č. 250/2016 Sb., Offences Civil Code - zákon č. 89/2012 Sb., občanský zákoník CMO - Collective Management Organization Computer programs Directive - Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs Copyright Code - zákon č. 121/2000 Sb., autorský zákon Database Directive - Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases DSM Directive - Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC E-Commerce Directive - Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market Enforcement Directive - Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights EULA - End user license agreement GUI - Graphical user interface InfoSoc Directive - Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ISP - Information Society Service Provider within the meaning of the Directive laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services OCSSP - Online Content Sharing Service Provider Penal Code - Zákon č. 40/2009 Sb., trestní zákoník

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1. Introduction "Some platforms have acquired significant scale, which effectively allows them to act as private gatekeepers to markets, customers and information."1

Online platforms are services operating via the virtue of the internet with a substantive impact on different aspects of our life. This impact reaches such significance that the European Commission recently described online platforms as "gatekeepers," further highlighting platforms' role in the world of today.2 Other parts of the world, such as G7 countries,3 namely the United Kingdom during the 2019 election,4 or China5 also recognized this substantial role.

We shall focus in this thesis on a particular kind of online platform, the video game streaming platform. Video game streaming platforms are web services unique in their content, nature, role, and market significance. We shall, therefore, study and describe the business of video game streaming platforms and their position as subjects of law.

First, users generate the content of video game streaming platforms, and the dominant type of content are video games and their recordings.6 Video games are, however, protected by copyright and, therefore, it is necessary to analyze the legal protection of video games, including rights and obligations arising from game streaming of protected content.7 To this end, we are going to analyze copyright provisions and license terms under which streamers acquire video games.

Second, video game streaming platforms are centered on the live streaming of content. Webcasting is a particular method of video transmission characterized by transmitting video in real- time, without being recorded or stored first.8 In nature, thus, live streaming constitutes of the live transmission of video to a geographically dispersed audience.9 Real-time, further, enables smooth interaction between originators of content and their viewers.10 Consequently, video game streaming platforms are different in their nature from platforms like YouTube, which transmit video to geographically and chronologically dispersed audience.11 Consequently, we must analyze webcasting and the subsequent right of communication to the public.

1 Communication: Shaping Europe’s digital future [online]. European Commission, publikováno 19. 2. 2020, s. 5 [vid. 20. 2. 2020]. 2 Ibid. 3 DILLET, Romain. G7 countries to sign charter on tech regulation in August. TechCrunch [online]. publikováno 15. 5. 2019 [vid. 21. 3. 2020]. 4 Where the tech giants became topic of 2019 pre-election debates due to Labour plan to tax platforms and other subjects to fund free broadband internet connection across the country. See WALKER, Peter; SYAL, Rajeev; WALKER, Peter; SYAL, Rajeev; STEWARD, Heather. Labour’s free broadband plan fires up the election battle. The Guardian [online]. publikováno 15. 11. 2019 [vid. 24. 2. 2020]. 5 SIMONITE, Tom. Google Faces Hurdles in China Beyond Censorship. Wired [online]. publikováno 6. 8. 2018 [vid. 21. 3. 2020]. 6 STEPHENSON, Brad. Twitch: Everything You Need to Know. Lifewire [online]. publikováno 9. 11. 2019 [vid. 21. 1. 2020]. 7 RAMOS, Andy et al. The Legal Status of Video Games: Comparative Analysis in National Approaches [online]. WIPO, 2013 [vid. 25. 2. 2020]. 8 What Is Live Streaming? How Live Streaming Works. Cloudflare [online]. [vid. 2. 4. 2020]. 9 MAKEEN, Makeen Fouad. Video streaming and the communication to the public right in the United States and European Union. In: APLIN, Tanya. (ed.) Research Handbook on Intellectual Property and Digital Technologies [online]. Cheltenham, Spojené království: Edward Elgar Publishing, 2020, s. 247 [vid. 7. 5. 2020]. 10 STEPHENSON, 2019, op. cit. 11 MAKEEN, op. cit., s. 252-253.

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Third, the platform provides a place for the originators of content to share and followers to consume the content. However, this commonplace also serves the game developers to communicate with fanbase, to the advertisers, or to the professional gaming community to compete.12 In numbers, the global audience reached 454 million people in 2019, half of that being esports enthusiast and other half being occasional viewers.13 Thus, there is a myriad of legal and non- legal interactions. We shall, however, focus predominantly on interactions between video game streaming platforms, video game rightsholders, and platform users.

Fourth, video game streaming platforms’ value reaches a significant height. The dominant player on the market of video game streaming is Twitch, which has been acquired in 2014 for the sum of $970 million by Amazon. YouTube has also shown interest in buying the platform, but negotiations have broken down. Investors argued already in 2016 that during the next five years, Twitch could be worth anything between $5 to $20 billion.14 Furthermore, while Twitch dominates the game streaming market, the market still maintains its diversity offering many different platforms to stream video games.15

We shall follow six Sections of the thesis analyzing the underlying issues of copyright in the context of video game streaming step by step. We seek to answer the question of what the inherent problems of video game streaming services are and who are vulnerable parties to suffer the possible consequences by asking three research questions. First, we ask whether video game streaming infringes intellectual property. We answer this question affirmatively, predominantly in Sections 4.1 and 4.2. Moreover, in Section 4.3, we consider the consequences of copyright infringement.

Second, we ask whether the video game streaming industry is at fault or whether the problem lies elsewhere. Our answer lies in identifying the lack of enforcement and inconsistent and bad license practices as the reasons behind the infringing character of the industry. We shall focus on this question, predominantly in Section 4.2.

The third and final question asks whether the negative practice could shift in the aftermath of the DSM Directive. Nonetheless, we cannot provide a concrete answer as we analyze in Section 5.

We shall, thus, identify one topic resonating throughout the entire thesis. Streamers are the most vulnerable party in the equation who are well-protected neither by the current nor by the new regime under the DSM Directive. Moreover, their vulnerability comes from imperfect legal practices with potentially life-devastating consequences.

12 LARKEY, Michael. Cooperative Play: Anticipating the Problem of Copyright Infringement in the New Business of Live Video Game Webcasts. Rutgers Journal of Law and Public Policy [online]. 2015, s. 4 [vid. 25. 10. 2019]. 13 Global Esports Market Report [online]. San Francisco: Newzoo 2020 [vid. 23. 2. 2020]. 14 HSU, Jeremy. Twitch Could Be a $20 Billion Company Inside Amazon. Wired [online]. publikováno 26. 8. 2016 [vid. 21. 1. 2020]; FEINER, Lauren. Amazon passes Microsoft in market value, becomes largest. CNBC [online]. publikováno 7. 1. 2019 [vid. 21. 1. 2020]. 15 As e.g. YouTube has launched its YouTube Gaming platform already in 2015 or Facebook Gaming which has recorded significant growth during the coronavirus pandemic. See MUNCY, Jake. Watch Out, Twitch: YouTube Gaming Just Went Live. Wired [online]. publikováno 26. 8. 2015 [vid. 27. 2. 2020]; STEPHEN, Bijan. The lockdown live-streaming numbers are out, and they’re huge. The Verge [online]. publikováno 13. 5. 2020 [vid. 18. 6. 2020].

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Furthermore, we must provide that we cannot consider all copyright aspects relevant to video game streaming services.16 Moving forward, thus, we consider only three selected legal aspects throughout different Sections. First, we consider the copyright-relevant use of protected subject- matter. Second, we inspect the authorization of such use. Third, we analyze liability for unauthorized use of work protected of copyright.

We shall, furthermore, consider aspects relevant to copyright infringement throughout the thesis.17 First, we shall describe stakeholders who interact on video game streaming platforms.18 Second, we shall identify works protected by copyright.19 Third, we must consider whether user actions amount to the use of work protected by copyright and which exclusive right might potentially be infringed.20 At the same time, we must determine the stakeholder who is making the use of protected work.21 Fourth, we must seek a license covering the use and its scope.22 Fifth, we shall consider exceptions and copyright limitations and whether they might step in instead of a license.23 Last but not least, we shall consider possible liability for the infringement.24 We shall, moreover, analyze the abovementioned aspects from the perspective of Czech legal order to provide specific reference law and limit work to the range available in diploma thesis.

We explore what video game streaming platforms are both in terms of functionality and terms of the law in Section 2. For this purpose, we shall predominantly study instruments of the Union law.25 We must also identify the major stakeholders operating in the video game streaming industry.

In Section 3, we analyze the legal status of video games under European and Czech law. We shall, thus, highlight that video games are composed of a myriad of elements and constitute multimedia works. Nonetheless, we may also protect the individual elements by copyright. This analysis, consequently, has an impact on the assessment of video game streaming of works protected by copyright.

We present the conclusion of the theoretical part of the current legal regime in Section 4. There we tackle the question of copyright-relevant use, authorization issues, and liability for unauthorized use of work protected by copyright.

In Section 5, on the other hand, we conclude the theoretical part of the regime introduced with the DSM Directive. We shall, thus, follow the structure of the previous Sections and, first, provide a theoretical background on the construction of Art 17. Second, in Section 5, we move towards

16 For example we could elaborate on protection of streamers’ content. See LEE, Yin Harn. Copyright and gaming. In: APLIN, Tanya. (ed.) Research Handbook on Intellectual Property and Digital Technologies [online]. Cheltenham, Spojené království: Edward Elgar Publishing, 2020, s. 58 [vid. 7. 5. 2020]. 17 Adequately ROSATI, Eleonora. Struggling to understand how to address a copyright infringement issue? Here’s my checklist. The IPKat [online]. publikováno 24. 11. 2014 [vid. 4. 6. 2020]. 18 See Section 2. 19 See Section 3. 20 See Section 4.1, Section 5.1.1 and Section 5.2.1. 21 See Section 4.1, Section 5.1.1 and Section 5.2.1. 22 See Section 4.2, Section 5.1.2 and Section 5.2.2. 23 See Section 4.2, Section 5.1.2 and Section 5.2.2. 24 See Section 4.3, Section 5.1.3 and Section 5.2.3. 25 The main pieces of legal regulation addressing the status of platforms concerning our subject of research are Provision of information Directive, containing the definition of ISP, E-Commerce Directive, prescribing the safe harbor exemptions for three types of ISPs, InfoSoc Directive, establishing authors' exclusive right of communication to the public, and Enforcement Directive providing authors with procedural rights for enforcement of copyright.

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the practical study and describe changes in obligations to video game streaming services. Last but not least, based on our analysis, we provide points of recommendations related to the three selected copyright issues. Our analysis of Art 17, however, shall be limited to the first five paragraphs. We chose to focus on these Sections as other authors have extensively focused on safeguarding fundamental rights or the exemptions and limitations of copyright provided in article 17 26

In Section 6, we focus on Twitch as an example of a video game streaming platform and apply the theoretical background on its operations. Thus, Section 6 serves as the practical Section. Furthermore, we operate with a potential streamer streaming video games from the Czech Republic, and, thus, being subjected to the Czech legal regulation. We shall also consider a video game license subjected to Czech law. However, we must note that license agreements may subject users to different applicable law for possible contractual breaches. Hence, throughout the thesis, we shall note possible differences or legal developments in other member states.

It is also vital to highlight the lack of academic focus on the question of video game streaming. Lack which has been further highlighted during the COVID 19 pandemic as video game streaming platforms became hubs for interaction and entertainment.27 The subsequent growth just between March and April amounted to 45 percent.28 It is, therefore, currently even more pressing to engage in academic discussion on copyright aspects of video game streaming.

On the other hand, there was research concluded by Matsui, Mejia, or Larkey, but their scope remained in the legal regime of the United States.29 In the European legal landscape, Husovec concluded substantive research on the liability of platforms in general.30 Makeen has covered video streaming and communication to the public right.31 Halliday did cover video game streaming services but only within the context of the DSM Directive with a focus on fundamental rights.32

Lee has only recently, furthermore, highlighted the lack of academic focus, stating:

"There has been virtually no discussion of the forms of user-generated content that are associated specifically with videogames, particularly complex relationships between the players who produce it and the vdeogame firms that seek to take advantage of it."33

26 Halliday focused on the question of safeguarding users’ rights in his thesis. (despite the “DMS Directive.”) See HALLIDAY, Paul. The DMS Directive: One size fits all? [online]. Tilburg, Nizozemí, 2020 [vid. 13. 5. 2020]. Diplomová práce. Tilburg University; Moreover Communia Association, e.g., provided extensive coverage of the stakeholder dialogue. See Article 17 Stakeholder dialogue: COMMUNIA input paper. International Communia Association [online]. publikováno 2. 4. 2020 [vid. 3. 6. 2020]. 27 Currently, Twitch offers users Pub Quizes or live performances of their favourite artists. See Goose’s Quizzes channel. Twitch [online]. [vid. 4. 6. 2020]; Twitch Music: Streaming Overview. Twitch Help [online]. [vid. 4. 6. 2020]. 28 STEPHEN, op. cit. 29 MATSUI, Shigeru. Does It Have to Be a Copyright Infringement? Live Game Streaming and Copyright. Texas Intellectual Property Law Journal. 2016, roč. 24. ; MEJIA, Sebastian. Fair Play: Copyright Issues and Fair Use in YouTube „Let’s Plays" and Videogame Livestreams [online]. 2013 [vid. 7. 5. 2020]; LARKEY, op. cit. 30 HUSOVEC, Martin. Injunctions against Intermediaries in the European Union: Accountable but Not Liable? Cambridge: Cambridge University Press, 2017; HUSOVEC, Martin. Zodpovednosť na internete: podľa českého a slovenského práva [online]. Praha: CZ. NIC, 2014 [vid. 13. 4. 2020]. 31 MAKEEN, op. cit. 32 HALLIDAY, op. cit. 33 LEE, 2020, op. cit., s. 61.

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Henceforth, we seek to provide a substantive piece of scholarship addressing the complex relations and issues in the context of game streaming with the reflection of current developments in the law. We shall focus on the main research question of what the inherent problems of video game streaming services are and who are vulnerable parties to suffer the possible consequences. By this approach, we seek to capture the unique challenge to copyright the video game streaming platforms represent.

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2. Video Game Streaming Platform Video game streaming platforms are a specific type of online intermediary which showcases challenges to copyright brought by internet and technology in a focused environment. Such an environment is, therefore, a fitting focus of research concentrated on reflection of copyright challenges online. However, it is necessary to bear in mind specifics of video game streaming platforms, as briefly presented above.

First, we need to be aware that video game streaming platforms intermediate mostly live- streamed video with video game-based content. Platforms offer also recorded video and other types of live-streamed videos. However, those constitute only a smaller but growing portion of the overall consumed content on the video game streaming platforms.34 For example, in December 2019, non- game streams constituted over 80 million minutes streamed. The nine most streamed games, on the other hand, represented over 300 million minutes.35

Moreover, game streaming captures live coverage of video game playthrough. We, however, protect video games by copyright. There are several possible approaches to what a video game is and how it is protected, ranging from audiovisual work to qualifying video games as a computer program.36 We explore this question in Section 3. Nonetheless, for this Section, it is vital that video game streaming platforms intermediate streaming of copyright-protected content.

Furthermore, users generate the content.37 Platform's users play, thus, an active role in the development and publication of content and represent the shift from Web 1.0 (read-only web) to Web 2.0 (read-write web).38 However, user-generated content also opens the door to intellectual property infringements, or, for example, hate speech.39 While the wrongdoer shall be held liable for such infringements, the platform may, depending on the role it plays, be also held liable.40

Second, video game streaming platforms allow for live streaming. Hence, the originator of content webcasts live-time video towards its geographically dispersed audience.41 The audience, at the same time, can interact with the streamer, thus, playing an active role.42 Such an interaction fosters

34 D’ANASTASIO, Cecilia. Twitch’s Non-Gamers Are Finally Having Their Moment. Wired [online]. publikováno 9. 1. 2020 [vid. 5. 3. 2020]. 35 YOSILEWITZ, Adam. State of the Stream Q4/19: Just Chatting takes the #1 spot for the first time, Facebook Gaming grew 210%, and xQc is the new king of Twitch. Medium [online]. publikováno 9. 1. 2020 [vid. 5. 3. 2020]. 36 RAMOS, op. cit., s. 11. 37 DENG, Jie et al. Internet Scale User-Generated Live Video Streaming: The Twitch Case. In: KAAFAR, Mohamed Ali; UHLIG, Steve; AMANN, Johanna. (eds.). Passive and Active Measurement [online]. Cham, Německo: Springer International Publishing, 2017, s. 1 [vid. 21. 1. 2020]. 38 VALCKE, Peggy; LENAERTS, Marieke; KUCZERAWY, Aleksandra. Who’s Author, Editor and Publisher in User- Generated Content? In: LAMBERT, Paul. (ed.). Social Networking: Law, Rights and Policy [online]. Irsko: Clarus Press ltd., 2014, s. 2 [vid. 28. 3. 2020]. 39 Ibid., s. 3. 40 HUSOVEC, 2017, op. cit., s. 10. 41 MAKEEN, op. cit., s. 247. 42 Such as so-called „Twitch Plays“ streams where audience, through chatting console, gave directions directly to the software on what actions to perform, subsequently playing and also successfully finishing computer games. See Twitch Plays Pokémon. Bulbapedia [online]. [vid. 26. 2. 2019]; Twitch Plays. Twitch [online]. [vid. 14. 3. 2019].

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audience engagement and, hence, we can observe apparent platform concentration on live-streamed video compared to video from record.43

As per the visual aspect, The New York Times illustrated the appearance of the webcast followingly:

"… viewers typically see the screen of a broadcaster, featuring the game being played, along with a video feed of the player's face and a chat window so they can communicate with the player and others watching the action."44

Third, video game streaming platforms serve the role of meeting grounds for a myriad of involved parties such as game developers, gaming community, esports celebrities, but also real-world celebrities.45 It is, hence, critical to assess the role the video game streaming platforms play to ascertain the question of possible legal consequences arising in case of breach of legal obligations by creators.

The platform, in general, could play an active role in the creation and development of infringing content in question. Such a situation could be, for example, if the platform were the originator of infringing content, resulting in direct liability.46 However, an active role may also be an influence over content created by others, such as enticing the users to breach legal obligations or moderating the content.47 We are going to explore the possible active role of video game streaming platforms in Section 6.

On the other hand, the platform may also be an innocent actor whose infrastructure was abused to share infringing content. Under such circumstances, the platform shall not be held liable. However, it can still be held accountable subject to other legal obligations, namely injunctions. Husovec labels this as being "accountable but not liable."48 Injunctive liability is going to be explored further in Section 4.3.

Fourth, the live streaming business may seem strange at best to an outsider.49 However, to people involved, it may mean their livelihood or at least a partial source of income.50 Not only game streamers may become wealthy and famous, but they also become influencers of their kind shaping

43 Such as so-called „Twitch Plays“ streams where audience, through chatting console, gave directions directly to the software on what actions to perform, subsequently playing and also successfully finishing computer games. See Twitch Plays Pokémon. Bulbapedia [online]. [vid. 26. 2. 2019]; Twitch Plays. Twitch [online]. [vid. 14. 3. 2019]. 44 WINGFIELD, Nick. What’s Twitch? Gamers Know, and Amazon Is Spending $1 Billion on It - The New York Times. The New York Times [online]. publikováno 25. 8. 2014 [vid. 7. 3. 2020]. 45 Thus many game developers like Blizzard for instance established own channels. In terms of celebritites, Ninja could undoubtedly be counted as the most popular streamed currently. Moreover, singer Drake made an appearance on his stream. Also, singer Trevis Scott made an appearance playing game Fortnite. See STATT, Nick. Ninja played more Fortnite with Drake, who gave him $5,000 for winning a game. The Verge [online]. publikováno 10. 4. 2018 [vid. 7. 3. 2020]; Blizzard channel. Twitch [online]. [vid. 7. 3. 2020]. 46 See Rozhodnutí Amerického Nejvyššího soudu ze dne 9. 3. 1964, New York Times Co. v Sullivan. 376 U.S. 254. 47 As e.g. in Judgment of the Court of 14 June 2017, Stichting Brein v Ziggo BV (The Pirate Bay). C 610/15. 48 HUSOVEC, 2017, op. cit., s. 8. 49 For example, popular TV show SNL tapped into this possible bizarreness and confusion in one of its episodes. See eSports Reporter. In: YouTube [online]. 26. 10. 2019 [cit. 7. 5. 2020]. 50 MONTANO, Joey. How Much Does Streamer ‘Ninja’ Make In A Month? Medium [online]. publikováno 30. 1. 2018 [vid. 7. 3. 2020].

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trends and even, for example, a new wave of "athleisure."51 Video game streaming platforms are also extremely valuable. We can observe the market value reflected in the overall global revenues of esports, which Forbes predicted to reach $1.1 billion in 2019. Furthermore, the most valuable esports companies are just as valuable as traditional sports teams, the most worthful reaching value of $400 million.52

Video game streaming platforms are, thus, internet intermediaries characterized by their content, nature, role, and market significance. All of these specifics further determine legal relations between rightsholders, and parties involved. Subsequently, these specifics determine the fragile balance in which video game streaming platforms exist.

2.1 Stakeholders It is essential to identify and clarify the roles of different stakeholders, meeting, and interacting on video game streaming platforms. Namely, we differentiate between streamers, viewers, esports broadcasters, game developers, and the video game streaming platform itself. Furthermore, there are other actors involved, such as advertisers. Their role, however, is not determinant to the topic of this thesis.53 Each actor pursues different interests, which are fundamental for our legal analysis.

Streamers are the originators of the content, and their role consists of playing video games and entertaining on webcasts. They, however, come into contact with game developers as it is their games they are playing. Contractual license terms under which streamers obtain video game copies for streaming govern this relationship.54 Possibly, we might also consider streamers playing pirated games, thus breaching intellectual property rights.55 We shall analyze the authorization to use video games in Section 4.2.

Further, streamers are followed by viewers who consume content they produce and interact with streamers in real-time. Viewers have an option to support streamers with donations of different natures financially or to follow specific channels directly.56 Depending on subscription type, viewers may also run different versions of streaming platform resulting in occasional interruption of webcast by advertisement.57

51 D’ANASTASIO, Cecilia. The Inevitable Collision of Gaming and Athleisure. Wired [online]. publikováno 3. 5. 2020 [vid. 18. 3. 2020]; MUNCY, Julie. Puma Is Making Gamer Shoes Now. Wired [online]. publikováno 20. 12. 2019 [vid. 18. 3. 2020]. 52 SETTIMI, Christina. ‘Awful Business’ Or The New Gold Rush? The Most Valuable Companies In Esports Are Surging. Forbes [online]. aktualizováno 28. 5. 2020 [vid. 22. 2. 2020]. 53 LARKEY, op. cit., s. 4. 54 As one recent article notes: „the Content and Services are licensed, not sold. Your license confers no title or ownership in the Content and Services. You're not buying the games, you're buying the license to use them.“ See THOMAS, Bill. PC game ownership in the digital age: what do you do in a post-ownership age? TechRadar [online]. publikováno 2. 10. 2019 [vid. 24. 3. 2020]. 55 Twitch prohibits users from playing pirated games, but there were instances of even popular streamers streaming pirated games. See WILLIAMSON, John. Successful Streamer is Using a Pirated Copy of The Witness. eTeknix [online]. publikováno 31. 1. 2016 [vid. 24. 3. 2020]; Community Guidelines. Twitch [online]. [vid. 25. 5. 2020]. 56 STEPHENSON, Brad. Impress Your Favorite Twitch Streamer With These Support Techniques. Lifewire [online]. publikováno 9. 12. 2018 [vid. 24. 3. 2020]. 57 ALEXANDER, Julia. Twitch Prime will no longer include ad-free viewing. Polygon [online]. publikováno 20. 8. 2018 [vid. 24. 3. 2020].

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Streamers also interact with the platform itself under which terms of conduct they operate.58 The platform provides streamers with infrastructure, which is itself coded to allow and not allow certain conduct. Code, thus, acts as a physical law of a kind, and terms of conduct add another layer of binding terms. Streamers may breach terms of conduct, but they are not able to breach the code.59 Lessig, hence, calls code the architecture similar to real-space physical restraints on behavior.60

Furthermore, streamers also might enter into a privileged relationship with the platform such as Twitch Partnership Program or Twitch Affiliate Program, which allow the streamer to monetize on their stream.61 While platforms allow users to stream video games for free, only after becoming part of such a program can streamer obtain share from advertisement revenues.62 Furthermore, privileged streamers obtain revenue from their followers, and platforms may give viewers tools to donate money through the platform directly.63

Subsequently, we can separate two categories of game streamers, privileged and non-privileged, depending on their relationship with the platform. Likewise, we may assume that the non-privileged streamers aim to become privileged. Such an assumption, however, is not absolutely correct as there is also a community of streamers who stream video games purely as a hobby with no aim to make revenue.64 We consider the legal relationship between streamers and platforms in Section 6 dedicated to the case study of Twitch.

We may also separate viewers depending on their kind of subscriptions. All video game streaming platforms are free of charge. Users may also subscribe for monthly/annual fees to gain certain exclusive perks such as ad-free streaming, high definition video, unique emoticons, badges or avatars, competitions, or platform currency to support favorite streamers.65 Users may further subscribe to a specific channel, and the platform subsequently shares part of the subscription with the privileged streamer.66 Users are also able to donate money to favorite streamers, either through the platform or directly through different channels like PayPal.67 We, however, do not discuss the legal position of viewers further in a separate Section, since their role remains in consuming the content created by streamers and generating revenue for platforms.

Another group of stakeholders are broadcasters of esports events and leagues. Likewise to broadcasters of traditional sports events, they attain revenues from viewers. However, in the case of broadcasters, we can observe a specific shift in roles as the platform may be paying to attract esports streaming. Individual streamers, on the other hand, rarely get paid to stream on a particular

58 Terms of Service. Twitch.tv [online]. [vid. 27. 2. 2020]. 59 POLČÁK, Radim. Internet a proměny práva. Praha: Auditorium, 2012, s. 137-138. 60 As explained in Lessig’s example of bike theft. See LESSIG, Lawrence. Code [online]. Version 2.0. New York: Basic Books, 2006, s. 125, 171 [vid. 6. 5. 2020]. 61 Joining the Affiliate Program. Twitch Help [online]. [vid. 24. 3. 2020]; Twitch Partner Program Overview. Twitch Help [online]. [vid. 24. 3. 2020]. 62 Twitch Partner Program Overview. Twitch Help [online]. [vid. 24. 3. 2020]. 63 Non-priviledged streamers may still use PayPal and similar means however by simply adding a link into description. See STEPHENSON, Brad. Earn Money on Twitch With Bitcoin, Ethereum, and PayPal Donations. Lifewire [online]. publikováno 19. 3. 2020 [vid. 24. 3. 2020]. 64 As some streamers stream for no viewers or just few for months or even years to improve own skills and connect with people. See HERNANDEZ, Patricia. The Twitch streamers who spend years broadcasting to no one. The Verge [online]. publikováno 16. 7. 2018 [vid. 9. 6. 2020]. 65 Mixer Pro. Mixer [online]. [vid. 10. 3. 2020]; PIERCE, Kelly. Is Twitch Prime worth getting? Here’s everything you receive with Prime. Windows Central [online]. publikováno 15. 4. 2020 [vid. 25. 5. 2020]. 66 Twitch Partner Program Overview. Twitch Help [online]. [vid. 24. 3. 2020]. 67 STEPHENSON, 2020, op. cit.

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platform.68 Recently this has been a case of Overwatch league, a Blizzard's competitive game, which was reportedly paid $90 million over two years for exclusivity.69 Our focus, however, lies on other stakeholders, and we do not discuss esports broadcasters any further.

Last but not least, game developers have undisputable interest in the game streaming industry as it is their intellectual property, which is the very core of the content and concept. Subsequently, game developers come into contact with streamers, which can legally obtain game copies only through channels from game developers.

Further, game developers come into contact with viewers as it is the audience which may easily become players, and video game streaming platforms may become free promotion for a video game.70 Moreover, game developers enter non-contractual relationships with video game streaming platforms for cases of breach of intellectual property rights. We shall discuss game developers as rightsholders in Sections 4.2 and 4.3 dedicated to authorization and liability issues.

2.2 Information Society Service Provider European regulators recognized the role of internet intermediaries and, thus, regulated them under several legal instruments. First and foremost, we define internet intermediaries as ISPs. ISP shall be understood as an intermediary who provides service normally for remuneration, at distance, by electronic means and at the individual request of a recipient.71

First, we shall consider remuneration as characteristic of ISP. Rec 18 of the E-Commerce Directive serves as interpretative rule explaining that the focus of remuneration is that service is an economic activity. However, ISP needs not to be remunerated by the user as the definition includes services not remunerated from those who receive them.72

CJEU noted in Papasavvas that such interpretation is consistent with "services" under Art 57 TFEU.73 Service is understood as an economic activity that results in remuneration, but not necessarily by the service recipient but as a result of this economic activity. Furthermore, the cost of providing service might also be incorporated into the price of goods or services, as CJEU explained in Mc Fadden.74

The Directive further explains that for service being at distance, it needs to be provided without parties being simultaneously present.75 Hence, the service needs to be provided at distance

68 In some rare instances, however, the total sums for exclusivity are astronomical. See LIAO, Shannon. Twitch gaming stars jump ship to Mixer, Facebook Gaming and YouTube. CNN Business [online]. publikováno 30. 1. 2020 [vid. 2. 4. 2020]. 69 BACCALLIERI, Emma. Report: Twitch Signs Two-Year Deal With Overwatch League Worth At Least $90 Million. Kotaku [online]. publikováno 9. 1. 2018 [vid. 10. 5. 2020]. 70 YARWOOD, Jack. How Player Unknown’s Battlegrounds became a Twitch success story. The Telegraph [online]. publikováno 7. 6. 2017 [vid. 24. 3. 2020]. 71 Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services. 72 Rec 18 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. 73 Para 29 Judgment of the Court of 11 September 2014, Sotiris Papasavvas v O Fileleftheros Dimosia Etaireia Ltd and Others (Papasavvas). C 291/13. 74 Para 42 Judgment of the Court of 15 September 2016, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (Mc Fadden). C 484/14. 75 Art 1 (1) (b) Directive 2015/1535.

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as a whole. However, for example, a contract concluded in person does not preclude at distance character of service provided.76

The Directive further clarifies "by electronic means" as

"service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means."77

The last defining character of ISP is that the service is provided at an individual request of a recipient. As Polčák notes, the request needs to be understood broadly as such a request may be any activity of the user.78 However, the request needs to be individual, meaning that service must be commanded individually by an isolated recipient who has free choice in an interactive setting.79

Furthermore, the E-Commerce Directive defines specific categories of ISPs and was implemented into the Czech legal order with law n. 480/2004.80 Consequently, we could define ISP as a subject, which allows others to communicate within information networks or eventually as a subject, which creates a service or processes and disseminates information in electronic form while falling under the definition.81

Regarding our case of video game streaming platforms, the webcast is provided via the internet, thus electronically. Viewers individually browse among streamed content and open webcasts as they wish, which falls under the broad understanding of the individual request. Service is, moreover, provided at a distance, often across the entire globe.82 Users may use video game streaming platforms for free. However, video game streaming platforms get remunerated either from advertisement or directly from user subscriptions. Video game streaming platforms subsequently fall under the definition of ISP.83

The E-Commerce Directive distinguishes three specific types of ISPs, for which it subsequently creates liability exemptions. However, liability remains subject to national laws as E-Commerce Directive does not establish any new kind of liability.84 Contrary, the E-Commerce Directive merely creates a guarantee that defined types of intermediaries are not going to be exposed to most forms of liability as long as they behave in a prescribed way.85 The Directive defines services consisting of (i.) mere conduit, (ii.) caching, and (iii.) hosting.86

76 POLČÁK, Radim et al. Právo informačních technologií. Brno: Wolters Kluwer, 2018, s. 73-77. 77 Art 1 (1) (b) Directive 2015/1535. 78 POLČÁK, 2012, s. 142. 79 Para 39 Judgment of the Court of 2 June 2005, Mediakabel BV v Commissariaat voor de Media (Mediakabel). C 89/04. 80 zákon č. 480/2004 Sb., o některých službách informační společnosti. 81 POLČÁK, 2012, s. 142. 82 Not only, there are no restrictions on watching streamers from different continents, but even platofm’ algorithms encourage watching content outside of respective borders. Twitch. Twitch [online]. [vid. 7. 3. 2020]. 83 Art 1 (1) (b) Directive 2015/1535. 84 Paras 53 et seq. Judgment of the CJEU, Papasavvas. 85 HUSOVEC, 2017, op. cit., s. 50. 86 Art 12-14 Directive 2000/31/EC.

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ISPs providing mere conduit services provide the connection to the internet infrastructure.87 We could give an example of an internet provider such as Vodafone. Caching ISPs operate the background layer of the internet. They make infrastructure more effective and protect it against cyberattacks as for example, does Cloudflare.88

The third category of ISPs is broadest in scope as it aims to define different types of hosting services like online forums, user data storages, social networks, or video platforms.89 The common criterium is hosting third-party information.90 Under the hosting category also falls our case of video game streaming platforms, whose business consists of providing infrastructure for live streaming video, hosting user-generated content, and accessing live streams on request of viewers.

It is, however, important to consider situations when video game streaming platform does store data only temporarily. For in such a case, platform would transcode and restream content captured and uploaded to platform’s servers in real-time to any user who searches and selects a particular stream. Content would be, thus, cached on the servers only for the limited period necessary to enable transcoding and streaming to viewers.91 While caching ISP should cover temporary storage of data, such temporary storage shall be automatic and intermediate. Thus:

“if such providers optimized the presentation of content and communicated/made it available to the public, they would not in any case qualify as providers that perform and ‘automatic, intermediate and temporary storage’ within the meaning of e.g., Article 13 of E-commerce Directive.”92

Consequently, video game streaming platforms do not fall under the category of caching ISPs, even if providing only temporary storage of user-uploaded content.

While E-Commerce Directive prescribes legal exemptions, the list of ISPs is not final as there are other intermediaries outside the Directive, such as services consisting of hyperlinks and location tool services.93 Some member states decided to extend legal exemptions also to those different types of ISPs.94

InfoSoc and Enforcement Directives complete the puzzle of legal regulation of ISPs by establishing a separate kind of injunctive liability. However, it might not be entirely correct to call injunctive liability a liability in the first place since it conceals its true nature as a tool aimed at an innocent intermediary to assist while pursuing the wrongdoer.95 We shall, however, proceed with such terminology, which helps conceptualize ISP liability in this thesis.

Art 8 (3) of InfoSoc Directive and Art 11 of Enforcement Directive are the legal basis for injunctions and allow the rightsholder to apply for an injunction against an intermediary whose service is used

87 HUSOVEC, 2017, op. cit., s. 17. 88 JOHNSON, Steven. Inside Cloudflare’s Decision to Let an Extremist Stronghold Burn. Wired [online]. publikováno 16. 1. 2018 [vid. 19. 3. 2020]. 89 POLČÁK, 2012, s. 148. 90 Art 14 (1) Directive 2000/31/EC. 91 ROSATI, Eleonora. Does the duration of the storage matter? Live streaming providers as ‘online content sharing service providers’ under Directive 2019/790. European Intellectual Property Review [online]. 2020, roč. 2020, s. 2 [vid. 8. 5. 2020]. 92 Ibid., s. 6. 93 HUSOVEC, 2017, op. cit., s. 51. 94 Ibid. 95 Ibid., s. 14.

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by third-party to infringe upon intellectual property right.96 It is essential to highlight that intermediary who is targeted by injunctions may be an innocent actor who behaved in prescribed ways and may even fall under safe harbor protection.97 That is what Husovec observes as being accountable while not liable.98

Injunctions are carve-outs from E-Commerce safe harbor legal exemptions giving rightsholders means to pursue wrongdoing. However, it is important to differentiate what kinds of injunctions fall under carve-out as it is easier to understand the concept of injunctions and the role of E-Commerce Directive.99 Husovec draws the distinction that:

'The dividing line, it is submitted, should be rather in the nature of the remedy sought. If the remedy aims to sanction a person for the acts of third parties, it should remain covered by the safe harbor, since it imposes legal consequences for its own acts. If it aims to secure cooperation against the acts of third parties, it should, also as a form of "liability," be able to rely on the carve-out, since it asks for assistance to "terminate or prevent an infringement."'100

Consequently, video game streaming platforms fall under definition under the definition of ISP. Moreover, they also fall under the definition of hosting intermediary under Art 14 of the E-Commerce Directive, thus obtaining safe harbor protection from possible liability. However, even if protected, video game streaming platforms may be subjected to injunctions under InfoSoc and Enforcement Directives to pursue wrongdoings of its users. Nonetheless, it is crucial to bear in mind the current shift towards the DSM Directive, which we shall explore in Section 5.

2.3 Interim Conclusion In this Section, we have clarified what video game streaming platforms are and the different groups of stakeholders who interact on these platforms. We must highlight three groups of stakeholders. First, streamers are the creators of content, and they may pursue commercial gain depending on their legal relationship with the platform. We have classified streamers pursuing commercial gain as privileged as they can gain profit from their activity based on contractual relationships with the platform.101 We shall discuss this relationship further in Section 6.

Second, we must consider the platform itself, which in terms of law falls under the category of ISP.102 Moreover, under the E-Commerce Directive, we must classify video game streaming platforms as hosting service providers protected under Safe Harbor under Art 14 of the E-Commerce Directive. Nonetheless, even protected ISP can be targeted by injunctions which serve as carve-out from the liability exemption.103 We shall discuss the platform legal position further in Section 4.3.

The third party are the copyright rightsholders whose video games are webcast on the platforms. Their interaction with streamers shall be discussed in Section 4.2, where we analyze authorization

96 Art 8 (3) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. 97 HUSOVEC, 2017, op. cit., s. 10. 98 Ibid., s. 14. 99 Ibid., s. 59. 100 Ibid. 101 Such as Twitch Partner Program Overview. Twitch Help [online]. [vid. 24. 3. 2020]. 102 As video game streaming platforms provide service normally for remuneration, at distance, by electronic means and at the individual request of a recipient. See Art 1 Directive 2015/1535. 103 HUSOVEC, 2017, s. 59.

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issues. Rightsholders' position against streamers and platforms for potential violation of copyright shall be discussed further in Section 4.3.

23 Streaming Video Games: Copyright Aspects

3. Video Game as Subject of Copyright Video games are elaborate works of authorship combining different forms of art such as plots, video, paintings, characters, music, or scripts. Genres of video games vary, but the universal aspect of every video game is the program that runs the game. Video games also require human interaction to execute games captured as a computer program.104

The birth of video games may be marked earliest to 1958 Tennis for Two by William Higginbotham or to any later developed video game, depending on the used definition.105 Either way we define video games, they represent significant market influence targeting a significant part of the population.106 While at first video games were more of a hobby to the creators, with a progressively bigger audience, the nature of video games came into the spotlight in the courtrooms.107

We shall, further, adopt the definition of the European Commission defining video game as "electronic or computerized game played by manipulating images on a video display or television screen."108 This broad definition entails both games which were digitalized but exist outside computers and games entirely dependent on computers. We shall, henceforward, focus rather on video games whose proper function depends on computers.109

Elements combined in video games may individually qualify as subjects of copyright if they achieve the legally required level of originality and creativity.110 Lipson and Brain111 differentiate these elements followingly:

A) Audio Elements a. Musical Compositions b. Sound Recordings c. Voice d. Imported Sound Effects e. Internal Sound Effects B) Video Elements a. Photographic Images (i.e., Giff, Tiff, Jpeg) b. Digitally Captures Moving Images (i.e., Mpeg) c. Animation d. Text C) Computer Code (both Source Code and Object Code) a. Primary Game Engine or Engines

104 RAMOS, op. cit., s. 7. 105 LASTOWKA, Greg. Copyright Law and Video Games: A Brief History of an Interactive Medium [online]. 2013, s. 3 [vid. 25. 3. 2020]. 106 Ibid. 107 Namely in 1981 came US Supreme Court decision addressing the idea and expression distinction ruling that defendant copied only underlying idea (asteroids, spaceship) not the expression. See Ibid., s. 15. 108 EUROPEAN COMMISSION. The Economy of Culture in Europe [online]. 2006, s. 270 [vid. 16. 4. 2020]. 109 First category could encompass e.g. digitalized chess or scrabble. See GROSHEIDE, Willem F.; ROERDINK, Herwin; THOMAS, Karianne. Intellectual Property Protection for Video Games - a View From the European Union. Journal of International Commercial Law and Technology. 2014, roč. 9, č. 1, s. 1-3. 110 RAMOS, op. cit., s. 7. 111 LIPSON, Ashley S.; BRAIN, Robert D. Computer and Video Game Law - Cases, Statutes, Forms, Problems & Materials. Durham, Severní Karolína: Carolina Academic Press, 2009, p. 54.

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b. Ancillary Code c. Plug-Ins (Third-Party Subroutines) d. Comments.

Furthermore, we may observe additional elements112 such as

a. Video Game Scenario or other Literary Elements b. Characters c. Choreography or Pantomime d. Maps or Architectural Elements.

Elements may attain copyright protection individually when they fulfill legal criteria for protection in respective countries.113 However, what remains an issue is whether we protect video games as a single, unique work of authorship.114 There is no universal approach to how to treat video games as a specific combination of software and audiovisual elements. Hence the national approaches range between perceiving video games as a computer program, database, multimedia work, or audiovisual work.115 It is our goal to establish the existence of copyright-protected work and identify the European approach to the protection of video games with a particular focus on the Czech perception of video game copyright protection.

3.1 Audiovisual Works Audiovisual work has been a legal term introduced in the Czech legal environment with the Copyright Code in 2000. However, it has followed on the previous terminology of cinematographic, movie, and similar works.116 Copyright Code defines audiovisual work as a work created by arranging works audiovisually used, processed, or unprocessed, consisting of series of fixed related images evoking the impression of motion, whether accompanied by sound or not, perceivable by sight and if accompanied by sound perceivable by hearing.117 International and Union law established similar definitions.118

For example, the Spanish Law on Intellectual property defines:

"audiovisual works, understood as being creations expressed by means of a series of associated images, with or without incorporated sound, that are intended essentially to be shown by means of projection apparatus or any other means

112 HÁLEK, Jakub. Let’s Play videa z pohledu autorského práva [online]. Praha, 2018 [vid. 1. 4. 2020]. Diplomová práce. Karlova univerzita, Právnická fakulta. s. 53. 113 We may ilustrate this point by considering copyrightability of Sean Bean’s voice acting in last edition of Civilization series. See CHALK, Andy. Watch Sean Bean find out that he dies in the Civilization 6 launch trailer. PC Gamer [online]. publikováno 8. 10. 2016 [vid. 5. 6. 2020]. 114 RAMOS, op. cit., s. 8. 115 Ibid., s. 10. 116 DREISEITLOVÁ, Evelýna. Audiovizuální dílo: česká právní úprava, česko-francouzská komparace, evropská úprava [online]. Praha, 2011, s. 8 [vid. 26. 3. 2020]. Diplomová práce. Karlova univerzita, Právnická fakulta. 117 § 62 zákona č. 121/2000 Sb., o právu autorském, o právech souvisejících s právem autorským a o změně některých zákonů (autorský zákon). 118 Art 2 Úmluva o mezinárodním zápisu audioSeeuálních děl [online]. WIPO [vid. 26. 3. 2020]; Art 2 Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property.

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of communication to the public of the images and of the sound, regardless of the nature of the physical media in which the said works are embodied."119

Generally, thus, we understand audiovisual works as a specific sequence of related images, with or without sound, designed to be shown by means of technical apparatus.120 Norms addressing audiovisual works seem, moreover, to aim at film medium, in particular, providing for a particular set of rights in favor of producers of audiovisual work.121

Compared to films, however, video games require interaction with the player whose directions influence the development of the game, create their content, and determine the substance of separate images.122 Moreover, games may also allow interaction between players inside the game environment.123

No European country perceives video games as audiovisual works. However, the Republic of Korea, the country with one of the most significant gaming communities in the world124, does follow this approach. Video games fall both under definitions of the computer program, and cinematographic work and may be protected under both. Authors, nonetheless, seek legal protection under cinematographic works as the protection offered is much stronger.125

The Republic of Korea is home to some prominent game developing companies behind games like PUBG, Lineage 2, Ragnarok Online, or Guild Wars 2.126 License terms may dictate South Korean law as applicable law, and streamers, thus, may find themselves in case of possible legal dispute subjected to South Korean laws treating video games as audiovisual works. Dispute, subsequently, would fall under well-established case law regulating the relationship between rightsholders and streamers.127 However, the non-contractual breach would be treated according to applicable law in the place of breach according to domestic international private law, namely according to lex loci protectionis rule.128

Among Member states, we shall mention Belgium and Germany, which perceive video games as a multimedia work whose elements are protected individually.129 As a whole, on the other hand, they perceive video games as audiovisual works.130 In Germany, a line of cases from the beginning of the century have established audiovisual protection for video games.131 Consequently, Germany

119 Art 86 Španělsko, Consolidated Text of the Law on Intellectual Property, Regularizing, Clarifying and Harmonizing the Applicable Statutory Provisions. 120 VELDEN, Stephan van der. Playing the game of video game classification: Game Over for Europe? [online]. Tilburg, 2017. s. 32 [vid. 23. 3. 2020]. Diplomová práce. Tilburg University, Faculty of Law. 121 Normally, copyright invokes rights in regard to (co-)authors. See Ibid., s. 33. 122 Ibid., s. 11. 123 HÁLEK, op. cit., s. 49. 124 SUN, Carolyn. South Korea’s Video Game Addiction. Newsweek [online.]. publikováno 17. 10. 2011 [vid. 26. 3. 2020]. 125 RAMOS, op. cit., s. 59. 126 Top 10 Korean Gaming Companies of 2019 to Watch For. Seoulz [online]. publikováno 14. 3. 2020 [vid. 26. 3. 2020]. 127 RAMOS, op. cit., s. 62. 128 POLČÁK et al., 2018, op. cit., s. 53-57. 129 Rozhodnutí Odvolacího soudu v Gentu ze dne 19. 5. 2014, IEFbe 844, EA, Sega and Ubisoft v Bibnet. 130 Ibid., 14. 131 STAMATOUDI, Irini A. Copyright and Multimedia Products: A Comparative Analysis. Cambridge: Cambridge University Press, 2002, s. 177.

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protects video games as computer programs with an audiovisual presentation, which is treated as film work.132

We may also observe legal confusion in the Czech Republic. Telec and Tuma expressed in 2007 that video games may be considered as audiovisual works.133 However, in the 2019 edition of their commentary Telec and Tuma slightly retreated, stating that video games may (rather rarely) constitute audiovisual work.134

It is substantial to highlight that in cases of unitary application of audiovisual work protection to video games, artistic and intellectual elements prevail. Contrary, technical aspects of video games have only secondary importance, as noted by Velden.135 The resulting audiovisual work protection of video games, thus, does not capture the unique combination of video and technical elements accurately.

On the borderline, we may observe a particular category of interactive video represented more recently, for example, by Black Mirror Bandersnatch. These works consist of prerecorded paths, and the audience is given the possibility to choose what path to follow.136 We may be inclined to label such works as audiovisual works. However, we need to ask what would be the threshold of interactivity?137 Nevertheless, interactive movies might, in fact, fall under this rare category of a video “game” being audiovisual work.

3.2 Computer Programs Computer programs are protected in European Union with copyright as provided for in Computer programs Directive as literary works, and their protection traces the Berne Convention for the Protection of Literary and Artistic Works.138 Protection, thus:

"shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive."139

A computer program is, hence, protected only as an expression in the form of source or object code and with its preparatory materials.140 What constitutes expression was further clarified in SAS Institute where CJEU ruled that:

132 RAMOS, op. cit., s. 41. 133 TELEC, Ivo; TŮMA, Pavel. Autorský zákon: Komentář. Praha: C. H. Beck, 2007, s. 40. 134 TELEC, Ivo; TŮMA, Pavel. Autorský zákon: komentář [online]. 2. vyd. Praha: C. H. Beck, 2019, s. 40 [vid. 26. 3. 2020]. 135 VELDEN, op. cit., s. 50. 136 HÁLEK, op. cit., s. 51. 137 On one hand there are movies like Bandersnatch with over 70 choices throughout the movie, on the other there is movie like The Terror with two alternative endings. Both offer choices and interaction with the audience but should we consider only one, both, or none of them as audiovisual work? See Teror / Terror - Ihr Urteil (TV film) (2016). ČSFD [online]. [vid. 8. 6. 2020]; CHAUDHRY, Asim. [Someone sent me…] In: Twitter [online]. publikováno 28. 12. 2018 [vid. 26. 3. 2020]. 138 Art 1 (1) Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version). 139 Ibid., Art 1 (2). 140 POLČÁK et al., 2018, op. cit., s. 175-180; Para 38 Judgment of the Court of 2 May 2012, SAS Institute Inc. v World Programming Ltd. C 406/10.

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"neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program."141

Thus, copyright does not protect functionality, nor does it protect ideas underlying any element of the computer program. Copyright protects only the objective expression in the form of code.142

Countries representing indicated concept are no small fish in the video game industry either. China reformed its intellectual property laws throughout the last 30 years to improve protection.143 Copyright law, however, does not mention video games and only explicitly protects computer programs.144 Ministry of Culture, nonetheless, enacted Interim Measures on Administration of Online Games, where online games referred to game products or services consisting of software programs and information data provided via information networks.145

Similarly, a broad definition is provided in Regulations for Computer Software as amended in 2013 to include all types of computer programs.146 Video games are, thus, protected as computer programs both under Regulation for Computer Software and under China's Copyright law.147

We can observe China's protection of video games as a computer program dispute from 2007.148 Disputing parties provided the court with a comparison between two video games displaying similar background drawings, display layouts, and names used for specific in-game items.149 However, the court ruled that there was no infringement as it did not find substantial and overall similarity.150 Consequently, China does not protect game elements individually, but as one sum of individual elements. Contrary to the European legal framework, moreover, it found GUI protected as software.151

China is a massive video game market with one particular substantial video game industry entity Tencent, owner of some of the biggest video game franchises in the world.152 Moreover, Chinese game developers publish many different games that might find their way into hard drives of western streamers and potentially on video game streaming platforms.153 European streamers may not find themselves directly gaining a license from Tencent. Future business decisions might, however, bring game developers such as Riot Games, Epic Games, or Grinding Gear Games under Chinese law.

141 Para 39 Judgment of the CJEU, SAS Institute. 142 POLČÁK et al., 2018, op. cit., s. 175-180. 143 RAMOS, op. cit., s. 28.; Outline of the Legal and Regulatory Framework for Intellectual Property in the People’s Republic of China. WIPOlex [online]. [vid. 30. 3. 2020]. 144 Art 3 (8) Čínská lidová republika, Copyright Law of the People’s Republic of China. 145 RAMOS, op. cit., s. 28. 146 Art 3 (1) Čínská lidová republika, Regulations on Computer Software Protection. 147 RAMOS, op. cit., s. 28. 148 Ibid., s. 30. 149 Ibid. 150 Ibid. 151 See Judgment of the Court of 22 December 2010, Bezpečnostní softwarová asociace - Svaz softwarové ochrany v Ministerstvo kultury (BSA v Ministerstvo kultury). C 393/09. 152 MESSNER, Steven. Every game company that Tencent has invested in PC Gamer [online]. publikováno 4. 10. 2019a [vid. 30. 3. 2020]. 153 MESSNER, Steven. The 5 biggest PC games in China that you’ll probably never play. PC Gamer [online]. publikováno 16. 9. 2019 [vid. 7. 4. 2020].

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We must mention Spain among the member states, where the question of video game classification remains open. Most criminal courts have considered video games as mainly computer programs.154 Legal treatment, thus, reflects the approach of seeing video games as functional software with GUI.155

We have mentioned that among the video game elements may also fall video elements generally labeled as GUI or "look and feel."156 GUI protection was clarified in BSA v Ministerstvo kultury, where CJEU ruled that GUI is an interactive interface enabling communication between the computer program and the user and that GUI does not constitute a form of expression of a computer program. GUI, thus, is not protected as a computer program.157 Court did not, nevertheless, deprive GUI of copyright protection as it may be protected via standard copyright if it fulfills criteria for copyrightability.158

Some scholars do make a distinction between GUI and "look and feel," pointing out different interconnection with the visual or interactive character of software.159 This distinction is, however, based on the outdated state of law reasoning that GUI should be protected as a computer program while "look and feel" by standard copyright.160 As CJEU has ruled in BSA v Ministerstvo kultury, GUI may never be protected as a computer program within the European copyright framework.161

In summary, video games are protected as computer programs mainly outside the European copyright framework. In Spain, however, we have identified tendencies to categorize video games as computer programs with GUI. As Velden, however, notes unitary application of computer program regime diminishes the inherent complexity of video games in favor of technological aspect and to the detriment of audio and visual elements.162 Such an approach does not, consequently, accurately capture video games nature either as it focuses too heavily on technical elements.

3.3 Databases Another collective of Czech authors in their commentary from 2005 expressed an opinion that we may also treat video games as databases. The computer program, however, itself could not be part of the database but rather just allow work to be created, function and to be used.163

The database should be for our purposes understood in the light of the Database Directive, as

"a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means."164

154 RAMOS, op. cit., s. 79. 155 HAZA, Andy R. G. Video Games: Computer Programs or Creative Works? WIPO Magazine [online]. publikováno 8. 2014 [vid. 2. 4. 2020]. 156 Para 56 Judgment of the CJEU, BSA v Ministerstvo kultury. 157 Paras 40-42 Judgment of the CJEU, BSA v Ministerstvo kultury. 158 Paras 44, 46, Ibid. 159 HÁLEK, op. cit., s. 58. 160 ŠAVELKA, Jaromír. Autorskoprávní ochrana funkcionality softwaru [online]. Brno, 2013 [vid. 2. 4. 2020]. Rigorózní práce. Masarykova univerzita, Právnická fakulta. s. 70-71. 161 Para 42 Judgment of the CJEU, BSA v Ministerstvo kultury. 162 VELDEN, op. cit., s. 50. 163 KŘÍŽ, Jan et al. Autorský zákon: komentář [online]. 2. vyd. Praha: Linde, 2005, s. 194 [vid. 8. 4. 2020]. 164 Art 1 (2) Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases.

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Moreover, the protection is offered without precaution to any form of database expression.165 While that might be understood to involve computer programs, we need to interpret Copyright Code rule in accordance with the Directive which states:

"Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means."166

Database protection, thus, would be offered only to other elements of video games, and the computer program underlying the games would be protected as such. Such protection would, consequently, be extraordinarily complicated and impractical. Moreover, the computer program is an indispensable part of the video game, and the construction of database rights would not align with such protection. We shall, therefore, agree with other scholars that database protection of video games is problematic, if not unreal.167

Furthermore, a recent reflection of the database rights following the Ryanair case showed weaknesses in the legal protection of databases. The database Directive offers two-tier protection of copyright and sui generis database right, which may cumulate.168 However, with protection comes also a set of legal rights and exemptions.169 In the Ryanair, CJEU has explored limits of contractual protection of databases unprotected by sui generis right or copyright.170 In consequence, the ruling explored that by not granting copyright or sui generis right protection to the database, Ryanair was able to protect the database contractually, therefore, realize its contractual autonomy to its full extent.171

Consequently, we may conclude that database protection does not address the specific nature of video games. Moreover, it fails to find balance as it potentially allows the rightsholders broader contractual freedom.

3.4 Multimedia Works Last but not least, we shall inspect the distributive classification represented by countries such as the United States, France, Germany, Sweden, or Belgium.172 Moreover, we argue that the distributional approach is represented in the European Union. Under such an approach, we protect each element of a video game individually, and, thus, the complexity of video games and the unique combination of audiovisual and technical aspects is taken into account. However, protection can be attracted if an element we seek to protect by copyright fulfills copyright criteria based on its specific nature and classification.173 Furthermore, we shall consider if European law offers sui generis protection to the video game as a whole.

165 Ibid., Art 1 (2), § 88 zákona č. 121/2000 Sb. 166 Art 1 (3) Directive 96/9/EC. 167 HÁLEK, op. cit., s. 57; HOLBÍK, Ľudovít. Autorskoprávní ochrana herního softwaru [online]. Praha, 2016, s. 22 [vid. 8. 4. 2020]. Diplomová práce. Karlova univerzita, Právnická fakulta. 168 MYŠKA, Matěj; HARAŠTA, Jakub. Less Is More? Protecting Databases in the EU after Ryanair. Masaryk University Journal of Law and Technology [online]. 2016, roč. 10, č. 2, s. 172. 169 Art 5, 6, 8 and 9 Directive 96/9/EC. 170 MYŠKA; HARAŠTA, op. cit., s. 183. 171 Ibid., s. 187-188. 172 VELDEN, op. cit., s. 52. 173 RENDAS, Tito. Lex Specialis(sima): Videogames and Technological Protection Measures in EU Copyright Law. European Intellectual Property Review [online]. 2015, roč. 2015, č. 1, s. 5 [vid. 30. 12. 2019].

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We shall understand work in the light of Czech Copyright Code defining work of copyright as (i.) a result of creative author's activity, (ii.) which is as a result unique (original),174 (iii.) is fixed in a tangible medium, and (iv.) it is a character of work to be objectively perceived as a result (or part) of a creative category of art, primarily literary, or creative category of science.175

Conditions for copyrightability shall apply to audio and video elements of the video game such as musical composition, sound and voice recordings, photographic images, animation, or text. Similarly, CJEU has ruled in BSA v Ministerstvo kultury that GUI is not protected as computer software but may be protected by standard copyright if it is the author's own intellectual creation.176

As the technical aspect is an integral part of the video games, we shall again highlight that software elements of the video games are under the distributive approach protected only if original.177 Software elements might, therefore, be the primary game engine, ancillary code, or comments inserted into the code.

Court of Justice, however, had addressed the nature of video games in the case of Nintendo v PC Box followingly:

"In accordance with Article 1(1) thereof, the protection offered by Directive 2009/24 (Computer programs Directive) is limited to computer programs. As is apparent from the order for reference, videogames, such as those at issue in the main proceedings, constitute complex matter comprising not only a computer program but also graphic and sound elements, which, although encrypted in computer language, have a unique creative value which cannot be reduced to that encryption. (…) the graphic and sound elements, are part of its originality, they are protected, together with the entire work, by copyright in the context of the system established by Directive 2001/29 (InfoSoc Directive)."178

Subsequently, according to CJEU, graphic and sound elements are part of the game's originality and are protected together with the entire work. The phrase "together with the entire work," then implies that both elements individually and the work as a whole attract protection independently.179

The breaking point remains the question, which, Computer program or InfoSoc Directive, to apply to the copyright of video games. We may observe Advocate General Sharpston in Nintendo v PC Box arguing for granting the greater scope of protection, claiming:

174 Originality under European copyright framework is translatable as “původní,” “jedinečný,” or “originální.” Czech legal order, however, sets the criterion to “jedinečný” (unique) which is a stricter criterium for copyrightability. For detailed analysis see ZIBNER, Jan. Jedinečnost jako pojmový znak autorského díla [online]. Brno, 2017. s. 39-42 [vid. 6. 4. 2020]. Diplomová práce. Masarykova univerzita, Právnická fakulta. 175 TELEC; TŮMA, 2019, op. cit., s. 15-23. 176 Para 46 Judgment of the CJEU, BSA v Ministerstvo kultury. 177 Art 1 (3) Directive 2009/24/EC. 178 Para 23 Judgment of the Court of 23 January 2014, Nintendo Co. Ltd v PC Box Srl, 9Net Srl (Nintendo). 355/12. 179 RUSSELL, James. “Pwnership”: Is copyright appropriately equipped to handle videogames? [online]. Uppsala, 2018. s. 14 [vid. 13. 4. 2020]. Diplomová práce. Uppsala University, Department of Law.

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"Where complex intellectual works comprising both computer programs and other material are concerned – and where the two cannot be separated – it seems to me that the greater, and not the lesser, protection should be accorded."180

While the Court followed the Advocate General's advice, some academics argue that in doing so, CJEU neglected lex specialis doctrine.181 As Russell, however, notes, CJEU focused predominantly on the question of Digital rights management tools and answered the question of which Directive should apply in the context of those tools. We should, therefore, proceed with caution and interpret the ruling in the way that it does not establish sui generis protection of video games but rather confirms that video games do not fall under Computer programs Directive but are continuously governed by existing copyright regime.182

Russell further comments that CJEU might, in fact, be in favor of a unitary approach. It has not, however, have been granted an opportunity to address a unitary approach to the protection of video games. CJEU was to address the issue in Grund (2013), but the pending case was discontinued on procedural grounds.183 The Court, thus, was left with the interpretation in Nintendo v PC Box, which is not conclusive on the approach to video games.

In terms of the Czech Copyright Code, we could subsume the distributional approach to video games under the category of collective works. Collective works are work created by several authors, on the initiative and under the guidance of a natural or legal person, and presented to the public under its name. However, the contributions included in such work are not capable of independent use.184 In § 57 (7) Copyright Code says that computer programs are not collective works. However, we have learned from Nintendo v PC Box and BSA v Ministerstvo kultury, that software is just one of many elements combined in the video game.

Consequently, video games may indeed attract protection as a whole as collective work. However, protection would depend on the analysis of the last element of the definition of collective work, namely whether individual contributions are capable of existing independently. Arguments could, consequently, be made for both sides as many video games elements simply lack any use outside of the particular video game. On the other hand, video game soundtrack or art are, in many instances, even sold independently, and we must conclude that they, indeed, may exist independently.185

3.5 Interim Conclusion In the analysis of the legal status of video games WIPO claimed:

"It is our opinion that video games are complex creations, composed by multiple copyrighted works (e.g., literary works, graphics, sound, characters and software) which deserve independent legal protection. Although the majoritarian trend considers that software is the prevailing element of video games, we believe that the distinguishing element of one video game from another will not be

180 Para 35 Opinion of Advocate General Sharpston delivered on 19 September 2013, Nintendo v PC Box, C 355/12. 181 RENDAS, op. cit., s. 11. 182 RUSSELL, op. cit., s. 14. 183 Ibid., s. 15. 184 § 59 zákona č. 121/2000 Sb. 185 MACDONALD, Keza. Where to Buy Great Video Game Artwork. Kotaku [online]. publikováno 11. 3. 2015 [vid. 11. 4. 2020]; The Witcher 3: Wild Hunt Soundtrack. Steam [online]. [vid. 11. 4. 2020].

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the underlying software only, but also the various audiovisual and literary elements created for each video game."186

Similarly, the European legal approach should neglect neither technical aspects nor audiovisual aspects of video games. The distributional approach, thus, seems best equipped to address the legal nature of video games. European legal framework heads in a similar direction as it does protect only some elements of video games as software and leaves the protection of other elements up to standard copyright.

In BSA v Ministerstvo kultury, the CJEU had supported such an approach as the Court did not extend software protection to the entirety of video game.187 Similarly, in Nintendo v PC Box, Court did not protect video games under Computer programs Directive but under the InfoSoc Directive copyright framework.188 As a result, we protect copyrightable elements of video games individually.

The question, however, remains how to treat video games as a whole. As noted above, we should interpret Nintendo v PC Box cautiously.189 Therefore, while indeed "the graphic and sound elements, (…) are protected together with the entire work,"190 the protection offered does fall exclusively under neither the category of audiovisual works nor of computer programs. Application of norms addressing collective works is not persuading either as many elements of a video game are capable of independent existence, and precisely for that reason, they may attract copyright protection individually.

Consequently, seeing video games as multimedia works is the approach represented in the Czech Republic and among the members of the European Union.191 We have, however, identified tendencies to grant protection as a whole within the category of a computer program or audiovisual work.192 Subsequently, we shall perceive the protection in the light of the distributional approach.

Internationally, however, there is little guidance on the legal status of video games, which inflicts the territorial application of copyright.193 Thus, we need to be aware of these different legal approaches. License terms may subject the streamer to different legal approaches or streamer may stream, and therefore potentially breach copyright from different jurisdictions. Subsequently, video game streaming legal relationships become quickly complicated.

For illustration, we may consider a breach of license subjected to South Korean laws, while the streamer streamed video game from a European country. Consequently, the contractual relationship between streamer and the rightsholder is governed by South Korean laws. In contrast, the non-contractual relationship between platform and rightsholder is governed by the domestic international private law, namely by lex loci protectionis rule.194

To conclude, in this Section, we have established that we protect video games under different legal regimes. In Europe, however, the distributional approach to the legal status of video games prevails.

186 RAMOS, op. cit., s. 93. 187 Paras 41 and 42 Judgment of the CJEU, BSA v Ministerstvo kultury. 188 Para 23 Judgment of the CJEU, Nintendo. 189 RUSSELL, op. cit., s. 14. 190 Para 23 Judgment of the CJEU, Nintendo. 191 Judgment of the CJEU, BSA v Ministerstvo kultury. 192 See Rozhodnutí Odvolacího soudu v Gentu ze dne 19. 5. 2014, IEFbe 844, EA, Sega and Ubisoft v Bibnet; STAMATOUDI, op. cit., s. 177. 193 RAMOS, op. cit., s. 94. 194 POLČÁK et al., 2018, op. cit., s. 53-57.

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Legal protection regimes influence what parts of computer games we protect and the rights of legal users. Different protection regimes, moreover, come with a different set of rights and legal licenses, which may serve as a legal basis for video game streaming.195

Next, in Section 4.1, we shall address the communication to the public as the author’s exclusive right, which is exploited in video game streaming. Furthermore, we must inspect how video games can be communicated to the public via webcast. Furthermore, in Section 4.2, we shall inspect the authorization of such communication to the public. In Section 4.3, we shall analyze consequences of unauthorized communication of video game elements to the public.

195 Compare § 30 et seq., § 62 et seq. and § 65 et seq. zákona č. 121/2000 Sb.

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4. Selected Legal Aspects In this Section, we shall tackle selected legal aspects and regulation addressing the issue of video game streaming. We have briefly introduced some essential parts of the legal puzzle in previous Sections, mainly that video game streaming platforms fall under the definition of ISPs. Moreover, we have established that video games are subject to copyright, and the European Union protects video games under the distributional approach. Moreover, we have previously focused on three actors in video game streaming, namely the rightsholders, streamers, and platforms, whose role shall be addressed in this Section.

We shall, further, bear in mind that copyright is the source of legal protection and focus of our work. We shall not focus on other possible wrongdoings committed on video game streaming platforms. Therefore, we shall not delve into other breaches of intellectual property such as trademarks, human rights violations such as human dignity, or violations of data protection. However, we need to highlight that our subject matter might not strictly fall only under the category of copyright. In many instances, video game streams might also violate different norms. For example, we may consider hate speech and video game content combined in one webcast.196 To this end, we have selected only three legal issues to limit the scope of thesis. Nonetheless, we could also address different legal aspects such as copyrightability of streamers content.197

Following our structure from the introduction, we must, subsequently, determine whether webcasting amounts to the use of work protected by copyright. We shall, thus, analyze the right of communication to the public in Section 4.1.

Second, we shift focus towards authorization to communicate works to the public. To this end, we must seek appropriate entitlement, license, or copyright exemption or limitation. In the absence of any authorization, we can conclude that communication to the public via video game streaming is unauthorized.

Thus, in Section 4.2, we investigate authorization options, and we note the astounding differences in the quality of legal entitlements. Most importantly, we note that some rightsholders follow good practice whether they provide streamers with appropriate rights to monetize their activity or not. Some rightsholders, on the other hand, attempt to grant necessary rights while their license terms are heavily outdated, prone to legalese, or even non-existent.

Furthermore, the contractual and non-contractual relationships gain importance in this Section as a source of regulation. Contracts govern license relationship while legal norms govern terms between platforms and rightsholders. However, streamers may obtain video game copies illegally, and any subsequent relationship is also non-contractual. Moreover, we do not rule out the possibility of platform contracting with an individual rightsholder.

As we conclude unauthorized communication to the public, moreover, we must consider the legal consequences of copyright violation in Section 4.3. Thus, we shall consider the direct liability

196 GOOD, Owen S. Firewatch creator vows DMCA retaliation against PewDiePie for racist slur used in stream. Polygon [online]. publikováno 10. 9. 2017 [vid. 20. 4. 2020]; KHAN, Asif. Twitch bans deadmau5 for hate speech, use of homophobic slur. Shacknews [online]. publikováno 12. 2. 2019 [vid. 18. 4. 2020]. 197 Lee, particulary, noted absence of focus on such topic which presents alternative perception of video game streaming issue. See LEE, 2020, op. cit., s. 58.

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of users198 and platforms. Alternatively, we must also consider the accessory and injunctive liability of platforms with consideration of the safe harbor protection.

4.1 Use of Work Protected by Copyright Previously in Section 3, we have established that video games are works protected by copyright. Consequently, we must seek whether video game streaming amounts to copyright relevant use of video games.

In this Section, thus, we shall determine that webcasting amounts to communication to the public under the InfoSoc Directive and national laws.199 Next, we shall answer which parties communicate works to the public. Third, we must note specifics of communicating video games to the public. Right of communication to the public, thus, serves as the legal ground for webcasting, and the exploitation shall be covered by appropriate legal title as explored in next Section 4.2.

Similarly to Makeen, we differentiate between three types of streamed video, namely webcasting, on demand streaming, and internet retransmission of a broadcast.200 We shall understand webcasting as distributing video over the internet to geographically dispersed viewers simultaneously.201 Therefore, webcasting is, in essence, also video game streaming. On-demand video, on the other hand, is distributing video to users geographically and chronologically dispersed.202 Consequently, stored recordings of video game transmission available on-demand to the viewers would fall under this category. Retransmission of broadcast does not cover our case of video game streaming as platforms do not retransmit broadcast or cable signals carrying copyright works.203

4.1.1 Union Law European copyright framework recognizes webcasting as a form of the general right of communication to the public.204 Similarly, video on demand falls under the category of making available to the public right, which also falls under the umbrella of the broader right of communication to the public.205 Further on, we shall focus on the webcast of video games and communication to the public right.

Art 3 of the InfoSoc Directive established the right of communication to the public as the author's exclusive right.206 This right is, however, based on the broader framework. Namely, it has been first formulated in Art 11bis of the Berne Convention and revised with the Brussels Act 1948. The WIPO Copyright Treaty 1996 further introduced the concept of making available to the public.207

198 Who shall be understood as streamers for the purposes of this thesis. 199 MAKEEN, op. cit., s. 252. 200 Ibid., s. 247. 201 Ibid. 202 Ibid., s. 252-253. 203 Ibid., s. 257. 204 Ibid., s. 252. 205 Ibid., s. 256. 206 Art 3 Directive 2001/29/EC. 207 ROSATI, Eleonora. The CJEU Pirate Bay Judgment and Its Impact on the Liability of Online Platforms. European Intellectual Property Review [online]. 2017, roč. 2017, s. 3 [vid. 8. 5. 2020].

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Two Basic Elements of Communication to the Public InfoSoc Directive introduced the right of communication to the public into the current EU copyright framework. The Directive, however, did not define the communication to the public.208 InfoSoc Directive only states:

"Member states shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them."209

The CJEU had, consequently, sought to determine the definition of this right in roughly 20 cases defining two building blocks. These essential requirements are an act of communication directed to a public. Court had also introduced additional criteria to consider when determining whether an act is a communication to the public.210

Court understood public as a fairly large number of people, such as in the case of Filmspeler or SGAE.211 However, CJEU had also introduced the additional criterium of the new public as public, which was not taken into account by the rightsholder when authorizing the work initially. This criterion comes into play when there has been previous communication to the public related to the same works via the same technical means.212

If we were to consider the public in the sense of video games, we should differentiate between paid and F2P (free to play) video games. We should also bear in mind that new public criterium comes into play only if there is communication via the same technical means. Paid video games are distributed through various distribution channels and obtained once the user pays the license fee.213 The original intended public, in this sense, is anyone who pays the license fee. The new public would, therefore, be anyone who did not pay the license fee. Video game stream would be, therefore, easily concluded as directed at the new public as at least a portion of viewers did not obtain the license.214

On the other hand, users can play F2P games after only agreeing to the license terms. 215 Consequently, the rightsholder intended to communicate work to the general public on the condition of consenting to license. The new public would be, in this sense, somewhat problematic as all internet users are potential recipients of communications freely available online. Consequently, webcast is directed at new public only when it would be accessible to a group that otherwise would not have been able to obtain the F2P game.

The second requirement of an act of communication has shifted towards the sense that emission and transmission of protected work are sufficient and, therefore, all the law requires is merely making

208 Ibid. 209 Art 3 (1) Directive 2001/29/EC. 210 ROSATI, 2017, op. cit., s. 3. 211 Para 45 Judgment of the Court of 26 April 2017, Stichting Brein v Jack Frederik Wullems (Filmspeler). C 527/15; Para 38 Judgment of the Court of 7 December 2006, SGAE v Rafael Hoteles SA. C 306/05. 212 Ibid. 213 THOMAS, op. cit. 214 Furthermore, there is no technical tool available to streamers to limit their transmission to viewers who did legally obtain video game. 215 Such as F2P game Fortnite See Fortnite End User License Agreement. Epic Games’ Fortnite [online]. [vid. 23. 4. 2020].

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available of work.216 The actual transmission of work only simplifies the categorization. In its absence, courts need to consider additional criterium of deliberate intervention on the side of the user without which third parties could not access the work at issue.217 In consideration of video game streaming, thus, webcast may communicate the work even if there were no audience.

Again, however, we shall consider the additional criterium of deliberate intervention. It shall apply only to cases with the absence of actual transmission, therefore, to webcasts without any audience. Court had considered this criterion extensively concerning linking. However, the nature of the problem is similar. The transmission is offered to the public regardless of whether the public avails themselves of such opportunity.218 The deliberate intervention is, thus:

“an act of communication when it intervenes – in full knowledge of the consequences of its action – to give access to a protected work to its customers, and does so, in particular, where, in the absence of that intervention, its customers would not, in principle, be able to enjoy the work.”219

Full knowledge, moreover, should not be perceived as a subjective state of mind but rather as acceptance of the possible consequences of conduct.220 Viewers follow streams to hone their gameplay but also to preview video games before buying it.221 Notable is also the behavior of streaming celebrities that do not focus on only one particular video game but rather play a various roster of video games.222 Thus, we can conclude that streamers accept that they may communicate work to an unauthorized audience in consequence of their conduct.

Again, we should point out the category of F2P games. Unless the game has restricted access, viewers are generally able to access the work on their terms. Streamers without any audience streaming F2P games, thus, would not perform an act of communication due to a lack of deliberate intervention.

We may, therefore, conclude that video game streaming does, in general, fall under the definition of communication to the public. In more detail, however, we identify a specific category of F2P games that would fall outside the definition based on the additional criteriums of new public and deliberate intervention.

In summary, thus, streamer does not perform an act of communication if the game is freely accessible as the transmission lack deliberate intervention. Deliberate intervention, however, applies only to video game streams without any audience for lack of actual transmission of work. Further, streamer does not communicate the work to a new public if the game is freely accessible and, hence, addresses to the general public. Criterium of new public, nonetheless, applies if there was previous communication of the same work via the same technology, such as the internet.

216 ROSATI, 2017, op. cit., s. 3. 217 Ibid., s. 4. 218 Para 43 Judgment of the CJEU, věc C 306/05; Para 36 Judgment of the CJEU, Filmspeler. 219 ROSATI, 2017, op. cit., s. 4. 220 Ibid., s. 16. 221 WINGFIELD, op. cit. 222 As Ninja or Czech streamer Herdyn. See Herdyn - Played Games. TwitchTracker [online]. [vid. 9. 5. 2020]; Ninja - Played Games. TwitchTracker [online]. [vid. 9. 5. 2020].

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Subsequently, for majority of cases, we may conclude that video game streaming exploits the exclusive right of communication to the public, which needs to be authorized by the author unless the user is provided with another legal title to use the video game as we explore in Section 4.2.

Communication to the Public by Platforms So far, however, we have been considering only the streamers as the users communicating the work protected by copyright. Building upon The Pirate Bay case, nonetheless, qualification might prove more complicated. The Pirate Bay, in particular, shaped the perception towards the approach that by providing infrastructure in a certain way, ISP may itself perform an act of communication to the public.223

Consequently, we must further consider the ISP being the direct user communicating the work. This communication to the public, nonetheless, follows the same specification provided above. The question, thus, instead is, under which circumstances does ISP’s activity amount to communication to the public.

We must first note that it is irrelevant that users have uploaded content communicated to the public. Second, the full knowledge requirement for deliberate intervention can be satisfied by consideration of intermediary operation with particular regard of indexing uploaded content to help users locate and share works protected by copyright.224 Third, the intermediary cannot be regarded only to provide physical facilities if it undertakes indexation, categorization, deletion, or filtering activities.225

Moreover, The Pirate Bay moves the actual knowledge threshold towards constructive knowledge with “could not be unaware” formulation.226 Moreover, arguably, we rebuttably presume constructive knowledge for services operating for profit.227

Consequently, in consideration of video game streaming services, we must note that their operations might amount to communication to the public if they index, categorize, delete, or filter content uploaded by their users. Neither does it matter whether intermediary performs these activities automatically or manually.228 Moreover, we must presume constructive knowledge if the ISP operates for profit.229

We must also note that The Pirate Bay is not limited to piracy websites. On the contrary, it specifies categories of activities which might amount to communication to the public without explicitly limiting its application to piracy character of these activities. The current pending preliminary in the YouTube case question further supports such reading, possibly extending The Pirate Bay conclusion to a conventional commercial operator.230

The abovementioned analysis comes into play later in the analysis of potential liability in Section 4.3. Particularly we must note that if intermediary’s actions amount to communication to the public, the intermediary is the direct perpetrator and acts itself. Consequently, in these situations, safe

223 Para 47 Judgment of the CJEU, The Pirate Bay. 224 Ibid., Para 36. 225 Ibid., Para 38. 226 Ibid., Para 45. 227 Ibid., Para 46, Also see ROSATI, 2017, op. cit., s. 10. 228 ROSATI, 2017, op. cit., s. 11. 229 Ibid., Para 46, Also see ROSATI, 2017, op. cit., s. 10. 230 ROSATI, Eleonora. DSM Directive Series #1: Do Member States have to transpose the value gap provision and does the YouTube referral matter? The IPKat [online]. publikováno 29. 3. 2019a [vid. 2. 6. 2020].

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harbor protection is unattainable as it protects only passive intermediaries.231 Moreover, in The Pirate Bay decision, CJEU does not consider the application of safe harbor protection, further supporting this point.

Streaming Video Games as Communication to the Public We shall, moreover, take account of the Filmspeler case, which confirms that streaming work protected by copyright falls within the scope of InfoSoc Directive.232 Filmspeler also comments on the position of receiver of transmissions, considering that such a person does make temporary reproduction outside of lawful use under Art 5 of InfoSoc Directive.233 However, to conclude such a breach of copyright, we must also consider deliberation and knowledge of users when accessing unauthorized works.234 We shall, however, not consider such potential liability further.

Considering the distinctive character of works in question, we must also consider BSA v Ministerstvo kultury, where Court considered collective management of computer programs and GUI during broadcasting.235 The Court, in this case, held not only that GUI is not protected as a computer program as seen above, but also:

“Nevertheless, if, in the context of television broadcasting of a programme, a graphic user interface is displayed, television viewers receive a communication of that graphic user interface solely in a passive manner, without the possibility of intervening. They cannot use the feature of that interface which consists in enabling interaction between the computer program and the user. Having regard to the fact that, by television broadcasting, the graphic user interface is not communicated to the public in such a way that individuals can have access to the essential element characterising the interface, that is to say, interaction with the user, there is no communication to the public of the graphic user interface within the meaning of Article 3(1) of Directive 2001/29.”236

Coming back to Section 3, we must, next, differentiate elements of video games and which of those we communicate in a webcast to the public. On the one hand, we might consider that we communicate video games as a whole in the sense of Nintendo v PC Box. At the same time, however, video game elements are protected individually and may also be communicated individually. By analogy, we can conclude that communication of GUI is, further, limited in webcast due to lack of interaction between viewers and the video game itself. On the other hand, we can freely communicate video game elements, not requiring interaction, to the public via webcast.

First, we must consider the code, whether we speak of the primary game engine, ancillary code, or plug-ins, is protected individually within the virtue of Computer programs Directive. Consequently, we protect code as literary work, and its expression is the code in any form.237 What is, however,

231 The new DSM Directive follows the same logic in Art 17 (1) and (3). 232 Para 52 Judgment of the CJEU, Filmspeler. 233 Notion possibly opening even the viewers to liability which we shall not investigate further as we keep focus on three groups of parties, the rightsholders, streamers and the platforms. See Ibid., Paras 70, 71. 234 Ibid., Para 69. 235 See facts in Judgment of the CJEU, BSA v Ministerstvo kultury. 236 Ibid., Para 57. 237 Art 1 Directive 2009/24/EC.

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webcasted is the code’s functionality. Consequently, unless streamers broadcast the code’s expression, code is not communicated to the public via video game webcast.238

Video elements come in various forms. First, we may consider animation, photographic images, or character art, which, if copyrightable, are capable of being communicated to the public via webcast.239 Contrary to GUI, viewers do not need to interact with these video elements for them to be communicated.

Second, we can talk about the GUI, and in the sense of BSA v Ministerstvo kultury, we must conclude that webcast is not capable of mediating the interaction between viewers and computer game.240 Consequently, GUI cannot be communicated to the public via webcasting technology. On the other hand, elements of GUI, which also fall under the previous category animation, photographic images, or character art, are capable of being communicated to the public nonetheless.241

This notion, however, is increasingly dented as Twitch itself, albeit rarely, offers webcasts mediating the interaction via chatting console used for user input.242 Moreover, recently we have witnessed the emergence of new services such as Google Stadia offering webcasting video games into users' computers, intermediating the interaction.243 Users, thus, can play video games without any need to install games solely via the webcast. The notion of lack of interaction in BSA v Ministerstvo kultury,244 might, therefore, be challenged on the grounds of technological development. On the same note, the entire industry of video game streaming is based on the webcasting of GUI as one of the dominant elements. Hence, there is a clear economic significance not backed by appropriate rights.245 Consequently, the lasting note should be challenged in an attempt to strike a fair balance of rights between rightsholders and users.

Audio elements such as voice acting, sound recordings, and musical compositions are another element protected by copyright capable of being communicated to the public via webcast. Interestingly, Twitch employs content filters for music. In practice, thus, Twitch filters and removes musical works from video game stream recordings while keeping in-game music in place. Live streaming, however, remains unfiltered as it is technologically more difficult to filter out music from live video.246

We may also consider additional elements such as choreographies, scenarios, literary elements, maps, or architectural elements, which, again, if copyrightable, may be communicated to the public

238 Twitch, however, does offer video streams of programing and it is possible, that some streamer may actually attempt to work on video game code. See FINLEY, Klint. Want Free Coding Lessons? Twitch Makes It Happen in Real Time. Wired [online]. publikováno 26. 9. 2019 [vid. 24. 5. 2020]. 239 We may provide the example of splash character arts in League of Legends. See The Art of League of Legends. League of Legends [online]. [vid. 24. 5. 2020]. 240 Para 57 Judgment of the CJEU, BSA v Ministerstvo kultury. 241 Here we must carefully differentiate between the bare interface and elements which appear as GUI but fall under these categories. We might, possibly, consider differentiating the look and feel. Nonetheless, such differentiation appears as a complicated exercise. See ŠAVELKA, op. cit., s. 70-71. 242 See Twitch Plays. Twitch [online]. [vid. 14. 3. 2019]; Twitch Plays Pokémon. Bulbapedia [online]. [vid. 26. 2. 2019]. 243 WARREN, Tom. Google Stadia is a lonely place. The Verge [online]. publikováno 12. 5. 2020 [vid. 25. 5. 2020]. 244 Para 57 Judgment of the CJEU, BSA v Ministerstvo kultury. 245 As webcasting GUI is not considered communication to the public. 246 MAY, Ethan. What music are you allowed to play on Twitch? Medium [online]. publikováno 15. 1. 2019 [vid. 24. 5. 2020]; MCWHERTOR, Michael. Twitch implements YouTube-like system for blocking copyrighted audio. Polygon [online]. publikováno 6. 8. 2014 [vid. 24. 5. 2020].

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via webcast as they do not require interaction. To provide examples of such elements, we could speak of The Elder Scrolls' impressive book lore of roughly 950 pages,247 breathtaking user-generated architecture in Minecraft,248 or hundreds of kilometers large video game maps249.

Consequently, we must conclude that video game streaming allows communication to the public of certain video game elements and possibly also video game as a whole, depending on the legal status of video games, which remains inconclusive.250

4.1.2 Czech Law The right of communication to the public can be found in the Czech Copyright Code,251 defined as making the work available to the public in such a way that anyone may have access to it at a place and time of their choice, in particular by computer or similar network.252 At first glance, thus, we can argue that implemented text equals Art 3 of InfoSoc Directive. Similarly, academics have also accepted this right as communication directed to the public.253 Although, some commentaries offer little insight into the structure of the right of communication to the public and even explicitly claim that linking cannot constitute the right of communication to the public.254

We shall also briefly analyze relevant jurisprudence. The Supreme court has correctly observed that communication to the public is a specific copyright term, and the public needs to be differentiated from the public as constructed under public law.255 The Constitutional court, however, commented on a lack of specifics and predictability of consequences to apply the right of communication to the public to criminal law norms.256 Today in 2020, nonetheless, European case law is much more developed, and we should not take this notion of Constitutional court into account.

The Supreme court, moreover, had an opportunity to deal with communication to the public and GUI after BSA v Ministerstvo kultury. The Supreme court was challenged by the situation of internet coffee guests using GUI without an appropriate license. Supreme court had particularly noted that a contrario to BSA v Ministerstvo kultury the internet coffee allows interaction with software, and consequently, GUI is communicated to the public.257 We can observe that the Czech court also focused on the interaction between users and software via GUI to analyze whether the right has been

247 MILLER, Matt. Fan Creates Oblivion Lore Volume. Game Informer [online]. publikováno 23. 9. 2011 [vid. 25. 5. 2020]. 248 See TAKA, Tomo. Gamers design Brutalist buildings on Minecraft. The Spaces [online]. publikováno 17. 8. 2015 [vid. 25. 5. 2020]. 249 MORGANS, Matt. The Top 10 Biggest Video Game Maps. VGR [online]. publikováno 15. 9. 2018 [vid. 25. 5. 2020]. 250 See Section 3. 251 § 18 et seq. zákona č. 121/2000 Sb. 252 Ibid., § 18 Para 2. 253 TELEC; TŮMA, 2019, op. cit., s. 225. 254 An opinion from 2019 in direct contrast to CJEU case law. See CHALOUPKOVÁ, Helena; HOLÝ, Petr; URBÁNEK, Jiří. Mediální právo: Komentář [online]. Praha: C. H. Beck, 2019, s. 428-429 [vid. 15. 5. 2020]. 255 Rozsudek Nejvyššího soudu ze dne 30. 9. 2004, sp. zn. 4 Tz 124/2004. 256 Nález Ústavního soudu ze dne 12. 10. 2006, sp. zn. I. ÚS 69/06. 257 Rozsudek Nejvyššího soudu ze dne 25. 3. 2015, sp. zn. 30 Cdo 5008/2014.

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exploited. Contrary to lower courts, moreover, the Supreme court did follow BSA v Ministerstvo kultury and applied copyright protection to copyrightable GUI.258

4.2 Authorization Video games are the very core of video game streams, and for that streamers need first to obtain a video game copy. To use video games, users need an appropriate license. Usually, the author grants the license once the licensee pays the license fee. There is, however, a substantial category of F2P video games for which streamer only agrees to the license terms to obtain the license.

A common aspect to both is the contractual relationship between streamer and rightsholder as the basis of the relationship. Streamer, thus, obtains only rights granted in the license and rights granted by law, if any is applicable. Streamers could also obtain the video game illegally, thus non- contractually.259

4.2.1 Copyright Exemptions and Limitations First, we shall explore non-contractual uses of video games, namely exemptions and limitations of copyright, allowing uses of work protected by copyright without the consent of the author. Czech Copyright Code establishes the three-step test to determine the applicability of exemptions and limitations. The three-step test, thus, acts as the material condition for non-contractual use of work protected by copyright.260

Non-contractual uses which (i.) are laid down in special cases stipulated by law, (ii.) do not conflict with the regular use of the work, and (iii.) do not unreasonably prejudice legitimate interests of the authors, pass the three-step test.261 As Hálek notes, the application of (ii.) and (iii.) could be especially troublesome, as we might not consider game streaming regular use of work,262 and the unreasonable prejudice of legitimate interests becomes questionable263.264

Similarly to Hálek, we could identify free use,265 reference license,266 reporting license,267 and minor secondary use of work268 as potential legal titles.269 We must, however, conclude that free use

258 Nonetheless, Supreme court did not sufficiently argue its conclusion on copyrightability of GUI and, moreover, did not differentiate between work rent under § 16 of Copyright Code and communication to the public under § 18 of Copyright Code. See HARAŠTA, Jakub et al. Přehled aktuální judikatury. Revue pro právo a technologie [online]. 2015, roč. 12, č. 6, s. 56. 259 As has been shown on the example of The Witness, even popular streamers may stream pirated copies of video games. See KLEPEK, Patrick. A Closer Look At Why People Are Pirating The Witness. Kotaku [online]. publikováno 3. 2. 2016 [vid. 19. 4. 2020]. 260 TELEC; TŮMA, 2019, op. cit., s. 384. 261 Ibid. 262 As game streaming and let’s play videos gained on popularity throughout last two decades, they, in fact, may constitute a normal use of video game nowadays. 263 On one hand there is a legitimate interest of authors to control execution of their exclusive rights. On the other hand, game stream is an advertisement for the game developers and may skyrocket their video game in sales. See YARWOOD, op. cit. 264 HÁLEK, op. cit., s. 77. 265 § 30 zákona č. 121/2000 Sb.; Art 5 (2) b) Directive 2001/29/EC. 266 § 31 zákona č. 121/2000 Sb.; Art 5 (3) d) and o) Directive 2001/29/EC. 267 § 34 zákona č. 121/2000 Sb.; Art 5 (3) c) and o) Directive 2001/29/EC. 268 § 38c zákona č. 121/2000 Sb.; Art 5 (3) i) and o) Directive 2001/29/EC. 269 HÁLEK, op. cit., s. 77.

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shall not apply as the video game stream is not for personal and non-commercial use.270 Reference legal license shall not apply as streamers communicate the work in its entirety and not just exempts, and the use is not limited to illustrate for education or academic purposes.271 Reporting license shall not apply as streams are not coverage of current events, nor is video game use limited to the newsworthy scope.272 Minor secondary use of work is not applicable either since the video game use is not an accidental use of work in connection with intended principal use of another work or element.273 However, depending on the classification of video games, minor secondary use of work might apply to unintended secondary use of some elements in the video game.

Subsequently, we must conclude similarly to Hálek that non-contractual legal uses do not fit the purposes of video game stream, and streamers must seek other legal titles to pursue their activity.274 Such a legal title, consequently, must be a license granted by the author of the work.

4.2.2 License Agreements To study license terms, we shall first use Who Let's Play database, founded by the Reddit community for creators of Let's Play videos on YouTube.275 Next, we shall also inspect the license practice of three specific rightsholders. Subsequently, we attempt to formulate a general approach common to the industry.

First, we must highlight that the Who Let’s Play website seems severely outdated as the footer refers to 2014-2015. Moreover, the database misses more recent popular game titles such as PUBG.276 We must also proceed with caution as the database focuses on Let's Play videos, which are, in essence, not the same as video game streams.277

Analyzing the Who Let's Play database, we discover that overwhelming 271 rightsholders allow creators to make Let's Play videos, and only mere two rightsholders do not. Investigating more in- depth, however, we find out that 71 out of 271 rightsholders lay conditions to creators such as emailing the company, copyright notices, links to video games, or non-commercial use of the video game. Still, out of the remaining majority of rightsholders, we shall distinguish only 43 rightsholders stating rules in their End User Agreements and another three rightsholders creating respective Let's

270 The very essence of video game stream is to communicate the work to the public, not consume video game in private. 271 Even coverage of current new titles would most likely extend over the newsworthy scope. TELEC; TŮMA, 2019, op. cit., s. 430. 272 Ibid., s. 415. 273 Ibid., s. 460-461. 274 Hálek, however, focuses his analysis on Let’s play videos, which, while similar, are in essence different from video game live streamed video. See HÁLEK, op. cit., s. 80. 275 What started first as a comment list migrated to the wiki and subsequently the creator founded own domain for the project. See Let’s build a list of game studios that allow monetized LP’s! In: Reddit [online]. publikováno 16. 5. 2013 [vid. 20. 4. 2020]. 276 Company Let’s Play Policies. Who Let’s Play [online]. [vid. 20. 4. 2020]. 277 Let’s Play videos shall be understood as specific genre of YouTube videos offered to geographically and chronologically dispersed audience. Videos are moreover severely edited. Webcasting on the other hand consist of unedited video streamed to geographically dispersed audience in live time. Similarly monetization of these types of video are substantially different as YouTube relies solely on advertising and video game streaming platforms rely also on subscriptions as established in Section 2. For further details on Let’s Play videos See HÁLEK, op. cit.

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Play Policies. Among the remaining, 15 rightsholders consent through posts on Reddit, roughly 30 consent through Twitter, and two companies posted consent to Facebook.278

We need to, further, establish that non-commercial uses of video games cover video game streaming only to a limited extent. Streamers may enter a privileged relationship with the platform, which allows them to monetize their content. Such a streamer, thus, conducts commercial activity. Non-privileged streamers can also attempt to monetize their content through donations links, and such activity would also qualify as commercial. Consequently, the non-commercial use of video games covers only a non-privileged streamer streaming video games as a hobby absent of any attempts to monetize their activity.

As the Who Let's Play database showcases, it is extremely hard to obtain up to date rightsholders' license practices. Only a small portion of the rightsholders provide clear information in their license terms. The majority, however, grant rights in separate social media, forum, or blog posts. Those posts, nonetheless, hardly serve as legal basis as in many cases, they are out of date, posted by individual game designers, not the company itself, and are extremely hard to find.279 Moreover, many rightsholders allow only non-commercial use of their work, which does not cover any monetization of video game streaming.

Subsequently, the streamer is left with tedious work to locate the appropriate consent and figure whether its scope also entails video game streaming on different platforms.280 Ironically, even after finding such consent, the streamer cannot be certain of its legal validity. The safest solution would, therefore, seem for streamers to contact video game companies, where possible, and ask the permission directly.

As the Who Let's Play database is an imperfect overview of the market practice, we shall investigate license practices of three specific rightsholders representing three distinct video game categories. Among the most significant game companies, we shall study Blizzard Entertainment, among the F2P game category we shall read Epic Games' Fortnite license, and for the indie developers, we focus on Stardew Valley created by Concerned Ape.

Blizzard To justify our choice of Blizzard, we need to bear in mind that Blizzard is the creator of some of the biggest and most popular games in history across many various genres like strategy games, MMORPG281, RPG282, and FPS video games283. Even though Blizzard might be in decline from former glory, it is still a force to be recognized with substantial influence on market practices.284

First, we are going to read Blizzard's legal documents, namely EULA and Video Policy.285 Blizzard offers its games through its platform, and the use of platform and games is limited to "personal and

278 Ibid. 279 We could use an example of ARK: Survival Evolved forum post by „The Right Hand.“ See Youtube Monetization: ARK: Survival Evolved. In: Steam Forum [online]. publikováno 16. 5. 2015 [vid. 20. 4. 2020]. 280 Take an example of TaleWorlds Entertainment posting consent solely for YouTube to their forums See Monetizing Youtube Videos. In: TaleWorlds Forums [online]. publikováno 25. 4. 2012 [vid. 20. 4. 2020]. 281 Massively multiplayer online role-playing game such as World of Warcraft. 282 Role-playing game such as the Diablo series. 283 First-person shooter such as Overwatch. 284 TASSI, Paul. In 2019, The State Of Activision-Blizzard Is Not Strong. Forbes [online]. publikováno 4. 1. 2019 [vid. 22. 4. 2020]. 285 End User License Agreement. Blizzard Entertainment [online]. [vid. 22. 4. 2020]; Video Policy. Blizzard Entertainment [online]. [vid. 22. 4. 2020].

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non-commercial entertainment purposes only."286 Video game streaming and its monetization is neither personal nor non-commercial, and, therefore, we must seek an exception to the rule. EULA, however, does not address the issue any further.287 EULA also subjects streamers to French law, and in case of possible dispute, European streamers would be subjected to reasonably familiar legal obligations and European consumer protection rules, if applicable.288

Blizzard Video Policy addresses user-generated content, among which should fall also streamed video. Blizzard, thus, states:

"First and foremost, note that except as specifically provided herein, Blizzard Entertainment requires that the use of Blizzard Content must be limited to non- commercial purposes." 289

At the same time, however, the policy establishes an exception:

"Blizzard Entertainment reserves the right to use its products for all commercial purposes. The only exceptions to this rule are if you participate in partner programs with YouTube, Justin.tv, Blip.tv, Own3d.tv, or Ustream.tv (the "Production Websites") whereby a Production Website may pay you for views of a Production if you are accepted into their partner program."290

It is obvious that Blizzard is, consequently, aware of the commercial exploitation of its video games, and it allows users on specific platforms to monetize their products.

We need to highlight that among the platforms, all domains except YouTube are nowadays not accessible. Justin TV developed into Twitch, and we may argue that rights granted to Justin extend to Twitch.291 Blip ceased to exist, and its domain has been transferred to Disney Enterprises.292 Own3ed discontinued as well, and its domain is currently not registered.293 Ustream domain had been acquired, and currently it redirects to the IBM website.294

Moreover, we must draw attention to “Production Websites may pay you for views of a Production.”295 While platforms such as YouTube share revenue with content creators based on views, Twitch and other video game streaming platforms also share revenue from subscriptions and direct donations.296 Consequently, application of exception under Blizzard Video Policy to video game streaming might not be as straightforward.

Furthermore, Blizzard's terms are extremely out of date. Problematic might also be its determination of rights to Justin.tv as its coverage of Twitch is in question. Justin.tv transformed

286 Art 1. B. ii. End User License Agreement. Blizzard Entertainment [online]. [vid. 22. 4. 2020]. 287 It does only adress some kinds of prohibited commercial uses and „cloud computing“ where it prohibits streaming from server to device. This ban is, nonetheless, targeted at technology of streaming video game from central servers to devices of players such as Google Stadia. See Ibid., Art 1. C. v. 288 Ibid., Art 11. 289 Video Policy. Blizzard Entertainment [online]. [vid. 22. 4. 2020]. 290 Ibid. 291 TURK, Victoria. Why sport is the next frontier for Twitch. Wired [online]. publikováno 4. 10. 2019 [vid. 22. 4. 2020]. 292 blip.tv. who.is [online]. [vid. 22. 4. 2020]. 293 own3ed.tv. who.is [online]. [vid. 22. 4. 2020]. 294 Streaming Video Platform & Hosting Services. IBM Watson Media [online]. [vid. 22. 4. 2020]. 295 Ibid. 296 STEPHENSON, 2020, op. cit.

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already in 2014, and if Blizzard did not change its terms in 6 years, they might not want to extend the license to Twitch in the first place.297 Streamers from different platforms, moreover, should be cautious as license terms do not cover platforms like Facebook Gaming.298

Epic Games Next, we shall study the license practice of Fortnite, a game developed by Epic Games. Epic Games is a game company owned partially by Chinese Tencent. Further, it stands behind one of the most popular video game titles currently, Fortnite Battle Royale.299 Fortnite is a F2P game that the PC Gamer titled as "the Minecraft generation's arena shooter."300 We can showcase its popularity by the value of Ninja,301 the most popular streamer today, its pop-cultural impact302 or the hours watched303. Roughly 250 million people registered accounts for Fortnite, and almost 11 million people played the video game at once.304 Fortnite has also attracted partnerships from Disney and Marvel.305

For Epic Games, we need to explore the EULA and Epic Games' Fan Art Policy. In its EULA Epic Games introduces a similar basic rule stating that it grants personal, non-exclusive, non-transferable, non-sublicensable limited license.306 Moreover, it, again, limits the license by personal and non- commercial use of video game.307

Streamers may, therefore, not depend on this basic rule.

Further, EULA expressly incorporates Epic Games' policies and among them the Fan Content Policy.308 Fan Content Policy establishes exceptions from non-commercial use limitations for two categories of fan content, which are:

"In this Policy, ‘Fan Content’ means: (i) your fan art (such as artwork, photographs, videos, and other materials) that is based on the Epic IP; and (ii) your Epic IP- related personal, non-commercial websites and apps that are freely accessible to the public."309

Policy further states:

"Fan Content must have no commercial (i.e., monetary) objective. As an exception to this, fans are permitted to monetize web videos (such as YouTube) with

297 ROSE, Mike. Twitch parent company rebrands as Twitch Interactive. Gamasutra [online]. publikováno 10. 2. 2014 [vid. 22. 4. 2020]. 298 For more accurate terms See Video Policy. UBISOFT [online]. aktualizováno 1/2016 [vid. 25. 5. 2020]. 299 MESSNER, 2019a, op. cit. 300 The best PC games right now. PC Gamer [online]. publikováno 23. 3. 2020 [vid. 22. 4. 2020]. 301 MONTANO, op. cit. 302 Dance move known as the „Floss“ gained incredible popularity and even the attention of US‘ Supreme Court. See STATT, Nick. Fortnite keeps stealing dances — and no one knows if it’s illegal. The Verge [online]. publikováno 20. 12. 2018 [vid. 22. 4. 2020]. 303 Which amounted to almost 1.464 million hours watched in 2019. See Number of Fortnite hours watched worldwide 2019. Statista [online]. publikováno 25. 3. 2020 [vid. 22. 4. 2020]. 304 LOVERIDGE, Sam; FORD, James. How many people play Fortnite? Is it really as many as people say? gamesradar [online]. publikováno 18. 5. 2020 [vid. 23. 4. 2020]. 305 KNOOP, Joseph; DAVENPORT, James. What to expect from Fortnite in 2020. PC Gamer [online]. publikováno 16. 1. 2020 [vid. 23. 4. 2020]. 306 Art 1 Fortnite End User License Agreement. Epic Games’ Fortnite [online]. [vid. 23. 4. 2020]. 307 Ibid., Art 2. 308 Ibid. 309 Fan Content Policy. Epic Games [online]. [vid. 23. 4. 2020].

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advertisements, so long as those videos otherwise meet the requirements of this Policy."310

The fundamental problem for streamers, thus, would be whether the stated exception covers them.

The first issue could again be the limitation of monetization from advertisements. Videos on YouTube and webcasts are, in nature, similar, and streamers would comply. We shall note, nonetheless, that monetization on YouTube comes solely from the advertisement. Webcasts, on the other hand, also monetize other sources such as subscription or direct donations.311

The second issue, further, remains whether the webcasts fall under the category of fan art. We can understand fan art in different ways. First, it could entail all possible artistic works derived from Fortnite and created by fans. We would, thus, need to study whether the video game stream is copyrightable. A narrower definition could entail only artistic creations made by non-professional artists.312 The impractical criterion for the exception would, therefore, be the occupation of the streamer.

Furthermore, according to EULA, the contract is governed by laws of the State of North Carolina, and any disputes are resolved in individual arbitration body subject to the U.S. Federal Arbitration Act and federal arbitration law.313 Epic Games' position is, further, strengthened by the obligation of the licensee to indemnify the company for a wide range of costs.314

Epic Games are, consequently, another example of a prominent game developer aware of the exploitation of their product. They attempt to grant the necessary rights. The execution, however, is lacking as its application could fall apart on legalese.315 Consequently, if the rightsholder wished so, it could pursue litigation in favorable settings and aim at, for example, individuals who harm their public image.316

Stardew Valley Last, we shall have a look at the license practice of independent developers represented by Stardew Valley. Indie game developers tend to be smaller and independent teams or an individual, behind smaller game titles such as Stardew Valley developed by Eric Barone.317 Some game titles are published under more prominent Publisher to gain expertise and necessary background. Some are, however, published independently, such as Stardew Valley following the split with its publisher.318

310 Ibid., Art 1.4. 311 Which might, potentially, disqualify Twitch and other streaming platforms from this exception. See STEPHENSON, 2020, op. cit. 312 Such criterium is consistent with definition used by Hugo Awards given at the World Science Fiction Convention. See Hugo Award Categories. The Hugo Awards [online]. publikováno 19. 7. 2007 [vid. 23. 4. 2020]. 313 Art 12 Fortnite End User License Agreement. Epic Games’ Fortnite [online]. [vid. 23. 4. 2020]. 314 Ibid., Art 9. 315 Streamers might assume that license covers them. Monetization via Twitch, however, has also other sources such as subscriptions and, moreover, qualification of „fan art“ might be problematic. Consequently, in potential dispute license might not cover webcasting via video game streaming platforms. 316 Such as in the example of PewDiePie targeted for harming image of video game by using racist slur. See GOOD, op. cit. 317 CHALK, Andy. Stardew Valley creator Eric Barone finally has a decent desk. PC Gamer [online]. publikováno 16. 4. 2020 [vid. 22. 4. 2020]. 318 HORTI, Samuel. Stardew Valley going it alone after creator splits with publisher. PC Gamer [online]. publikováno 1. 12. 2018 [vid. 22. 4. 2020].

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The game publisher should grant the expertise on how to publish the game to the market but also the necessary legal background.

Nonetheless, neither on the official website nor distribution pages can we find EULA.319 Consequently, distribution channel norms would apply as in the case of Steam, GOG, or Humble store.320 Steam and Humble Store limit the obtained license to personal and non-commercial use.321 GOG, however, does leave license terms up to game developers. Therefore, in the absence of license terms, we shall apply national rules to fill out the license void.322

Despite the absence of EULA, the official webpage FAQ states:

"Can I talk about/post videos of your game on Youtube/Twitter?

Absolutely. Please feel free to create videos about Stardew Valley. You have permission to monetize your YouTube videos featuring Stardew Valley content."323

Again, the independent developer is aware of possible exploitation and monetization of its video game. The exception, however, is granted only to Youtube and Twitter. The rightsholder, thus, states that monetization of Stardew Valley on any other platform is prohibited. Consequently, any streamer of Stardew Valley would be in violation of copyright.

General Approach To conclude, our brief analysis of three rightsholders showcased awareness of the community. Similarly, all three rightsholders gave permission to monetize on specific platforms. Nonetheless, while the intentions are noble, their execution is lacking far behind as we have seen on outdated rules in EULA of Blizzard, legalese issues in the case of Fortnite, and narrow targeting of rules on the webpage of Stardew Valley.

Together with our conclusions drawn on Who Let's Play, we have discovered that overall non- commercial limitations of the use of video games apply. Exceptions granted could be hard to apply. We identified a tendency to limit exceptions to specific services. Moreover, some agreements or posts on social media were severely outdated. Further, individuals without the competence to act on behalf of the rightsholder posted authorizations on social media.

Streamers, thus, may be civilly liable either for contractual or non-contractual breach. Non- contractual liability norms apply to streamers who obtained their games illegally.324 License terms, on the other hand, often delegate applicable law and streamer is liable according to it.325

Further, we must also consider possibility of an implied license based on acceptation of monetization. License terms often contain explicit provisions safeguarding its rights if rightsholders

319 Stardew Valley. Steam [online]. [vid. 23. 4. 2020]; Stardew Valley. Stardew Valley [online]. [vid. 23. 4. 2020]. 320 Steam Subscriber Agreement. Steam [online]. [vid. 23. 4. 2020]; Terms of Service. Humble Bundle [online]. [vid. 23. 4. 2020]; Legal info. Gog.com support center [online]. [vid. 23. 4. 2020]. 321 Art 2 Steam Subscriber Agreement. Steam [online]. [vid. 23. 4. 2020]; Art 1 b) Terms of Service. Humble Bundle [online]. [vid. 23. 4. 2020]. 322 § 2376 (2) zákona č. 89/2012 Sb., občanský zákoník. 323 Stardew Valley - FAQ [online]. [vid. 23. 4. 2020]. 324 Such as § 2910 Civil Code (liability for breach of legal obligation) in Czech legal environment. See § 2910 zákona č. 89/2012 Sb. 325 Such as § 2913 Civil Code (breach of contractual obligation) in Czech legal environment. See Ibid., § 2913.

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fail to enforce their rights.326 Consequently, acceptance of the video game streaming industry does not derogate game developers’ right to enforce their intellectual property according to terms.

Consequently, video game streamers pursue their activity on uncertain legal grounds, and they may fall victim to whims of rightsholders, competition, and police enforcement. Such as in the case of PewDiePie, where nothing was stopping DMCA claim once the rightsholder decided to act.327 Similarly, Let’s Player Eroktic has been served DMCA notice because of as rightsholder commented: “incorrect information and overall negativity about their game.”328 On the same note, the platform may target an individual based on notice submitted by the third party with ill intentions.329

We must, however, note contradictory conclusions drawn by Halliday.330 First, Halliday concludes in relation to DOTA 2, World of Warcraft, and Minecraft consent of rightsholders for video game streaming. Halliday limits such consent only by the condition that monetized content is accessible to the public without any fee.331

We must, however, disagree. First, World of Warcraft falls under the abovementioned Blizzard Video Policy. It, thus, limits monetization to the production websites, which include only YouTube from currently existing platforms and possibly also extend Twitch. No other video game streaming platform is, however, covered. Consequently, streamers using Facebook Gaming to stream World of Warcraft, for example, would violate license terms.

On the other hand, concerning Minecraft, streaming and its monetization are, indeed, allowed. Moreover, these terms explicitly state that Mojang does not consider streaming and its monetization a commercial activity.332 Valve follows similar logic in its Video Policy.333

We, however, must also highlight quite the opposite cases such as 2K Games, which in their policy explicitly state:

“’Non-Commercial’ means that you don't (…) use other advertising-driven monetization.”334

We can, thus, identify that approach represented by Mojang or Valve is not a general rule, but rather just one of the possible perceptions.

326 Such as „Blizzard’s failure to enforce a provision of this Agreement shall not be construed as a (1) waiver of such provision, or (2) diminishment of any right to enforce such provisions. Further, Blizzard may choose to waive enforcement of a provision of this Agreement in a particular instance; however, you are still obligated to comply with that waived provision in the future.” See End User License Agreement. Blizzard Entertainment [online]. [vid. 22. 4. 2020]. 327 GOOD, op. cit. 328 HALL, Charlie. Escape From Tarkov team barrages YouTuber with DMCA takedowns over `misinformation`. Polygon [online]. publikováno 17. 12. 2018 [vid. 26. 5. 2020]. 329 KLEPEK, Patrick. Twitch Admits It Got Tricked Into Banning Streamers Talking Over the Democratic Debate. Vice [online]. publikováno 26. 2. 2020 [vid. 4. 6. 2020]; GAFFORD, Travis. Twitch Streamer Claims He Received Unfair DMCA Takedown From Azubu. GameSpot [online]. publikováno 13. 3. 2015 [vid. 26. 5. 2020]. 330 HALLIDAY, op. cit. 331 Ibid., s. 11. 332 See Terms and Conditions. Mojang Studios [online]. [vid. 27. 5. 2020]. 333 Video Policy. Steam [online]. [vid. 27. 5. 2020]. 334 Policy on posting copyrighted 2K material. 2K Support [online]. publikováno 8. 5. 2013, aktualizováno 11. 4. 2020 [vid. 1. 6. 2020].

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Halliday, further, analyzes terms of twenty most streamed video games on the platform.335 He concludes that thirteen out of twenty do allow monetization, not considering it as commercial use.336 Among those games, he also involves examples of World of Warcraft or Overwatch covered by Blizzard license. It is, nonetheless, incorrect to assume that Blizzard considers monetization a non- commercial use. On the contrary, Blizzard states:

“restriction that Productions be limited to "non-commercial" uses also means that you may not license a Production you have created to another company for a fee, or for any other form of compensation, without specific written permission from Blizzard Entertainment to do so. (…) The only exceptions to this rule are if you participate in partner programs with YouTube, Justin.tv, Blip.tv, Own3d.tv, or Ustream.tv (the “Production Websites”) whereby a Production Website may pay you for views of a Production if you are accepted into their partner program.”337

Consequently, even if Blizzard’s license extends to Twitch, monetization exception only constitutes an exception from non-commercial limitation. Blizzard in no way considers monetization a non- commercial use.

Similarly, Halliday concludes that for another five games, such as Escape from Tarkov, it is unclear whether indirect monetization is permitted.338 We, however, would argue that in the case of at least one of these games, Escape from Tarkov, it is clear that monetization violates its license. The rightsholder specifically issued nearly 50 DMCA claims against Let’s Player Eroktic on YouTube.339

Based on his findings, Halliday formulates conclusion:

“the majority of them (rightsholders) do not interpret indirect monetization (such as voluntary subscriptions or sharing in the platform’s advertising revenue) as amounting to commercial use may be indicative of a general practice and interpretation of such use within the industry.”340

That is, however, a false impression, and it would be to incorrect to formulate such a general approach for the entire industry.

On the contrary, our analysis concludes that video rightsholders consider monetization a commercial use of their games with exceptions such as Valve or Mojang. However, rightsholders in the majority do grant exceptions to monetization on some platforms. Some rightsholders provide clear general rule, and some formulations might prove problematic. Similarly, failure to enforce does not derogate any rights, nor does it imply any license.

Consequently, general practice does not amount to considering monetization a non-commercial use. Rather, rightsholders perceive not enforcing their rights as 341 and they do not want to anger

335 HALLIDAY, op. cit. 336 Ibid., s. 23. 337 Video Policy. Blizzard Entertainment [online]. [vid. 22. 4. 2020]. 338 HALLIDAY, op. cit., s. 23. 339 HALL, op. cit. 340 HALLIDAY, op. cit., s. 24. 341 See YARWOOD, op. cit.

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the community342. Rightsholders, subsequently, react only to instances impacting the image of their video game and enforce their rights in such cases.343 In this sense, rightsholders wield copyright as a tool of censorship to silence content harming their public image on top of copyright infringement. Consequently, monetization via sites such as YouTube or Twitch is generally perceived to be a commercial activity. On the other hand, we must note exceptions to the rule such as Valve or Mojang.

We must further highlight that the abovementioned license issues are entirely unnecessary, and the legal uncertainty of streamers could be easily fixed if only rightsholders invested in proper license agreements. Understandably, not all rightsholders favor commercial exploitation via webcasting. However, those who do and silently accept such business for reasons specified above only endanger content creators who have to pursue their activity on uncertain legal ground. We perceive such a situation as entirely unnecessary. Furthermore, in Section 5.2.2, we argue that the introduction of new obligations under the DSM Directive could disrupt the current practice and, to the benefit of streamers, introduce new and better license practice.

Last but not least, we shall highlight § 2358 et. seq. of Civil Code addressing license agreements. Particularly we shall take note of § 2376 of Civil Code defining the scope of granted license in the absence of explicit contract provision. As we have analyzed above, norms such as this are to be used to determine possible contractual void between parties for cases such as Stardew Valley. Non- contractual legal use of video games has been previously analyzed.

4.3 Liability We have previously considered webcasting as communication to the public in Section 4.1 and problematic authorization practice in Section 4.2. Consequently, we must determine which parties and under what conditions bear the legal consequences of lack of authorization for communication to the public of video games. Subsequently, we shall determine that streamers are the primarily liable party and platform could be considered to communicate works to the public in the light of The Pirate Bay case or could be considered secondary liable.344 Nonetheless, we must note the safe harbor protection possibly exempting ISPs from liability and the injunctions as carve-outs from the safe harbor.

4.3.1 Union Law Secondary Liability and Safe Harbor First and foremost, we need to highlight that liability is based on national norms as there is no European legal document prescribing liability. It shall be noted, however, that some academics argue that CJEU did attempt to establish Union secondary liability doctrine on its own. Particularly Husovec argues that:

“Without the harmonization of a central part of the intermediary liability puzzle – the accessory liability, there are, in theory, at least three ways in which the CJEU generally can approach secondary liability in tort without a legislative intervention. The first is (1) to simply acknowledge that it is the law

342 Which is potent tool of substantial changes to video games such as in the case of Star Wars Battlefront II See PARKER, Jason. Why a Star Wars game is making Reddit really mad. CNET [online]. publikováno 13. 11. 2017 [vid. 8. 5. 2020]. 343 HALL, op. cit.; GOOD, op. cit. 344 Para 47 Judgment of the CJEU, The Pirate Bay.

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of the Member States governs the grounds for tortious secondary liability and only engage in moderation of its excessive forms through Article 3 of the Enforcement Directive and fundamental rights. The second is to engage in a judicial activism (2) by creating autonomous common criteria for accessory liability on the top of the scope of the rights. And the third is to respond by (3) incorporating ad hoc solutions of the secondary liability directly into the scope of the rights. The existing case-law does not seem to pursue a single trend but their mix.”345

As Husovec highlights, both Advocates General and CJEU remarked the lack of Union secondary liability.346 Particularly in L’Oréal v eBay Court held: “[i]t is therefore in the context of national law that the conditions under which such liability arises must be sought.“347

Husovec, however, argues that in Donner case, the Court had introduced two additional criteria to determine secondary liability.348 Similarly, in Daimler case Court negatively defined secondary liability, thus, delineating its limits.349

It is, therefore, possible that the creation of the European doctrine of secondary liability is underway.350 For this paper, however, we shall remain within the boundaries of member state secondary liability laws, specifically the Czech legal order, which recognizes only the indirect liability.351 As Husovec, moreover, notes, Court seems reluctant to expressly establish Union doctrine despite the urgency of the Slovakian government in the GS Media case.352

In concentration on the Czech legal norms, we shall identify several norms that may serve as a basis for joint liability of the platform. We shall, however, focus on the Czech legal environment later in a dedicated Section.

The previously introduced E-Commerce Directive provides exemptions from non-contractual liability of selected types of ISPs. We have identified that video game streaming platforms fall under the category of hosting platforms as they are ISPs whose service consists of the storage of information provided by its users. Although live streaming services offer only temporary storage, we have identified they still provide a hosting service, albeit for the limited time of the transmission.

E-Commerce Directive sets out four conditions for hosting ISPs to avoid liability for information stored by its users. Providers need to (i.) be passive, (ii.) do not have actual knowledge of illegal activity or information and, as regards claims of damages, be not aware of facts or circumstances from which the illegal activity or information is apparent, (iii.) upon obtaining such knowledge or awareness, providers need to act expeditiously to disable access or remove the information, and (iv.) the recipient of the service shall not act under the authority or control of the provider.353

Regarding the condition of passivity Husovec notes:

345 HUSOVEC, 2017, op. cit., s. 67. 346 Ibid. 347 Para 107 Judgment of the Court of 12 July 2011, L’Oréal SA v eBay International. C 324/09. 348 Para 27 Judgment of the Court of 21 June 2012, Titus Alexander Jochen Donner. C 5/11. 349 Para 36 Judgment of the Court of 3 March 2016, Daimler AG v Együd Garage Gépjárműjavító és Értékesítő Kft. C 179/15; HUSOVEC, 2017, op. cit., s. 69. 350 HUSOVEC, 2017, op. cit., s. 69. 351 HUSOVEC, 2014, op. cit., s. 51 et seq. 352HUSOVEC, 2017, op. cit., s. 69. 353 Ibid., s. 52-53; Rec 42 and Art 14 Directive 2000/31/EC.

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“The issue of neutrality/passivity is key for two reasons. First the intermediaries not qualifying as passive providers do not qualify for safe harbor of any kind and are thus thrown into the uncharted waters of many national laws. (…) Second it exponentially increases legal uncertainty because safe harbors, especially for hosting, are built on very easily moving foundations.”354

E-Commerce Directive bases passivity of providers in Rec 42 of the E-Commerce Directive, and its principle for the entire liability-free zone was confirmed in Google France355.356 Court refers to this condition also as “neutrality condition” and tests it by asking whether “operator has not played an active role allowing it to have knowledge or control of the data stored.”357

We shall seek further guidance in Court rulings, particularly Google France and L’Oréal v eBay. In Google France Court comments passivity by stating:

“(…) the activity of the information society service provider is ‘of a mere technical, automatic and passive nature,’ which implies that that service provider ‘has neither knowledge of nor control over the information which is transmitted or stored.’”358

and

“(…) mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability.”359

Thus, the Court concluded the criterium of passivity, which is not contaminated by the for-profit orientation of service.

In L’Oréal v eBay Court furthers the concept stating that:

“Where, by contrast, the operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer-seller concerned and potential buyers but to have played an active role of such a kind as to give it knowledge of or control over, the data relating to those offers for sale. It cannot then rely, in the case of those data, on the exemption from liability.”360

Consequently, ISP playing an active role in the development of the content and optimization of its presentation falls outside safe harbor protection due to lack of passivity.

Safe harbor protection also relies on the determination of which content is provided by recipients of the service. Across Europe, we can identify rules identifying “adopted content” as ISP’s own. Moreover, in Estonia, courts ruled online forums to be a publisher of third-party comments, further

354 HUSOVEC, 2017, op. cit., s. 55. 355 Paras 114, 120 Judgment of the Court of 23 March 2010, Google France v Louis Vuitton. C 236/08 a 238/08. 356 HUSOVEC, 2017, op. cit., s. 54. 357 Para 113 Judgment of the CJEU, L’Oréal v eBay.; Paras 114, 120 Judgment of the CJEU, Google France v Louis Vuitton. 358 Para 113 Judgment of the CJEU, Google France v Louis Vuitton. 359 Ibid., Para 116. 360 Para 116 Judgment of the CJEU, L’Oréal v eBay.

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steering away from a clear division between ISP and its users.361 Consequently, any content “owned” by ISP falls outside the E-Commerce Directive protection. In our further analysis, we need to be mindful of varying European legal landscape and take account of platforms' position towards content uploaded by its users.

Regarding the condition of actual knowledge, we must highlight that the E-Commerce Directive does not harmonize ways of obtaining knowledge. Consequently, we may witness a country and platform-specific notice and takedown systems.362 The standard criterium, however, is the perspective of “diligent economic operator.”363 Furthermore, general knowledge is not sufficient. Constructive knowledge, on the other hand, may be obtained in any situation such as undertaking investigation on own initiative or receiving an incomplete notice not sufficient to constitute actual knowledge.364

The third condition is acting expeditiously upon obtaining knowledge.365 The term expeditiously may become problematic as we can observe criterium from different perspectives. Rightsholder perspective offers shorter timescale, especially if its smaller scale company or author. On the other hand, platforms may well take weeks to resolve disputes, especially if its smaller startups without sufficient compliance staff. We can, however, cautiously formulate this condition in favor of the ISP’s perspective.366

The last condition of no control or authority over the recipients of the service reflects the dividing line implied in passivity condition. Acts of any person who acts under the direction or authority of ISP, thus, make safe harbor protection unattainable.

Husovec, moreover, provides us with a list of conditions which, on the contrary, should not disqualify intermediary from being covered by the safe harbor. Namely, we recognize (i.) intermediary drafting precise architecture for the content of third parties, (ii.) exceeding the scope of hosting service, (iii.) technically transforming form of information, and (iv.) financial benefit of the intermediary.367

If ISP fulfills all of the abovementioned criteria, safe harbor protection covers its operation, and it cannot be held liable for acts of third parties. That does not, however, mean that the protection is absolute as Infosoc and Enforcement Directives introduced injunctions into the European legal framework serving as carve-outs from the otherwise liability-free zone.

Injunctive Liability Injunctions against intermediaries are based on Art 8 (3) of InfoSoc Directive and Art 11 of Enforcement Directive and serve as a cooperation tool, not as a tool of sanction against intermediaries.368 The CJEU also pointed out that injunctions against intermediaries differ from “injunctions which may be obtained against infringers of an intellectual property right.”369 Husovec, thus, explains:

361 HUSOVEC, 2017, op. cit., s. 55-56. 362 Ibid., s. 53. 363 Paras 120, 122, 124 Judgment of the CJEU, L’Oréal v eBay. 364 HUSOVEC, 2017, op. cit., s. 53. 365 Art 14 (1) (b) Directive 2000/31/EC. 366 POLČÁK et al., 2018, op. cit., s. 83-90. 367 HUSOVEC, 2014, op. cit., s. 112. 368 HUSOVEC, 2017, op. cit., s. 60. 369 Ibid., s. 61-62; Para 124 Judgment of the CJEU, L’Oréal v eBay.

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“The measures prescribed by Article 8(3) InfoSoc Directive and Article 11(III) of the Enforcement Directive are therefore better understood as some obligatory cooperation remedies imposing accountability without liability available before the authorities.”370

We can differentiate two kinds of injunctions, (i.) injunctions targeting infringers, and (ii.) injunctions targeting non-infringers. The CJEU had clarified this notion in L’Oréal v eBay stating:

“(…) ‘injunction’ in the third sentence of Article 11 differs considerably from the use, in the first sentence thereof, of the words ‘injunction aimed at prohibiting the continuation of the infringement’, the latter describing injunctions which may be obtained against infringers of an intellectual property right.”371

Consequently, following previous analysis, we need to determine whether safe harbor protection covers the ISP. We can target not covered ISPs with secondary liability and also apply for injunctive relief. However, if we find an ISP not liable and covered by the safe harbor, we can still apply for an injunction. The scope of such injunction, however, is limited:

“the injunction obtained against that operator cannot have as its object or effect a general and permanent prohibition on the selling, on that marketplace, of goods bearing those trade marks.”372

In that sense injunction against non-infringer must be understood as

“positive obligation of assistance with a particular goal and never as a general and permanent prohibiton of some conduct. (…) Put differently, the goal of an order, or its effect should not be to prohibit conduct, but to prescribe a specific conduct.”373

We can identify three elements to establish a course of action, namely (i.) service being intermediary, (ii.) “whose service are used by a third party,” and (iii.) “to infringe an intellectual property right.”374 Term intermediary is broader to ISP, and its scope encompasses anyone:

“who engages in economic activity, in the course of which, he or she is in a position to prevent third-party wrongdoing.”375

Further, the CJEU opted to consider not only non-infringers but also active intermediaries to fall under injunctive liability.376

We construct the second element also very broadly to target anyone “who even unwittingly carries a third-party infringement.”377 The only limitation, thus, is the ability of an intermediary to put an end to infringement.378 The CJEU shines a light on this requirement in UPC Telekabel. For our purposes,

370 HUSOVEC, 2017, op. cit., s. 63-64. 371 Para 128 Judgment of the CJEU, L’Oréal v eBay. 372 Ibid., Para 142. 373 HUSOVEC, 2017, op. cit., s. 109. 374 Ibid., s. 87. 375 Ibid., s. 90. 376 Ibid., s. 88. 377 Ibid., s. 91. 378 Ibid., s. 92.

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the relationship is, however, more straightforward, as video game streaming platforms are intermediary used by third parties to store and transmit information.379

The third element focuses on acts of the third party that infringes intellectual property rights. There is a question of whether wording includes only primary or also secondary infringements. We shall, however, follow Husovec’s reading, understanding infringer as “anyone who violates the right that qualifies as intellectual property.”380

Consequently, regarding the video games streaming platforms, we can conclude that they are considered an intermediary381 whose service is used by third parties382 to infringe on intellectual property rights383.

Further, we shall also consider the limits of injunctions, namely general monitoring prohibition. Art 15 of the E-Commerce Directive prohibits general monitoring. Measures such as website blocking, disconnections, filtering obligations, or de-indexation are considered monitoring, but the issue remains what amounts to prohibited general monitoring.384

In Scarlet Extender, CJEU had rejected injunctions requiring social network or internet access providers to install filtering systems involving

“systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent.”385

Husovec, thus, established that:

“any proactive measures attempting to prevent infringements from a particular infringer can be compatible as long as they do not extend to his other infringements that aren’t of the ‘same nature.’”386

Consequently, we can still target any ISP covered by a safe harbor with an injunction. However, its scope is limited by the prohibition of general monitoring, and that injunction shall not permanently prohibit certain conduct. The platform can be, thus, held accountable solely based on being in a position to prevent infringement of others while not being liable.387 We, however, shall not investigate the general monitoring prohibition further as our focus lies rather in imperfect licensing practice and its consequences.388

4.3.2 Czech Law Primary Liability In this Section, we must, first, consider the possible direct liability of users, and, second, the primary liability of the intermediary. Both parties can under above-specified conditions perform an act

379 Contrary to Internet acess provider targeted by website-blocking injunction although only its customers were able to possibly connect to infringing website in question. See facts in Judgment of the Court of 27 March 2014, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH. C 314/12. 380 HUSOVEC, 2017, op. cit., s. 92-93. 381 See Section 2.2. 382 See Section 2.2. 383 See Section 4.1 and 4.2. 384 HUSOVEC, 2017, op. cit., s. 119. 385 Ibid.; Para 38 Judgment of the Court of 24 November 2011, Scarlet Extended SA v SABAN. C 70/10. 386 HUSOVEC, 2017, op. cit., s. 121. 387 Ibid., s. 8. 388 For detailed analysis of general monitoring under European law See HUSOVEC, 2017, s. 117-137.

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of communication to the public.389 Consequently, unless authorized, both can either breach their contractual or non-contractual obligations.390

Breach of a contractual obligation under § 2913 of Civil Code shall apply to breach of an obligation under license, such as use limitation to non-commercial cases. We can establish liability under this provision if there is a breach of contractual obligation, damages, and causal nexus.391

For illegally obtained games or intermediaries not covered by the license, we identify a breach of legal obligation, namely the copyright, under § 2910 of the Civil Code. Breach of a legal obligation, subsequently, follows the same legal preconditions and additionally considers the fault of the perpetrator.

Further, we shall also consider the criminal and administrative liability. Under Czech laws, we shall examine § 270 of Penal Code and § 105a and § 105b of Copyright Code. Penal Code prescribes a penalty for not a slight breach of intellectual property.392 Any Czech streamer could be, thus, targeted if over these thresholds with even a possible penalty of imprisonment. Similarly, an intermediary could be held criminally liable for its communication to the public of works protected by copyright.

Here, we must provide an example of Czech streamer Agrealus who, just in May 2020, was able to earn 350.000 CZK in a small number of days. Most of that amount came from few followers in just a few last days of May, and these contributions were record-breaking in the Czech Twitch community.393 Moreover, he admitted earning roughly 500.000 CZK a month.394 Subsequently, we can easily conclude that such a breach has crossed the provided threshold.

Nonetheless, applying penal liability may seem excessive. To mitigate this excess, we must apply the measure of intentionality. Thus, if the perpetrator is aware that work is protected by copyright, we might conclude intention in consideration of other relevant factors.395 Nonetheless, we suppose that streamers should be aware of copyright protection when streaming video games,396 and, thus, they might be vulnerable even to penal liability.

Moreover, even streamers or intermediaries with smaller revenues may be punished according to Copyright Code with fines capped at 100.000 CZK for a physical person and 150.000 CZK for a legal entity.397

Indirect Liability and Safe Harbor We can base liability on specific norms of criminal, administrative, or civil law. Within the scope of civil law, we must seek for legal title to establish the liability. We can identify mainly the liability

389 See Section 4.1. 390 See Section 4.2. 391 HULMÁK, Milan et al. Občanský zákoník VI. Závazkové právo. Zvláštní část (§ 2055–3014): komentář [online]. Praha: C. H. Beck, 2014, s. 1569 [vid. 18. 11. 2019]. 392 Which shall be understood as not a rare intance of infringement or insignificant breach. See ŠÁMAL, Pavel et al. Trestní zákoník: komentář [online]. 2. vyd. Praha: C. H. Beck, 2012, s. 2751 [vid. 18. 11. 2019]. 393 The biggest bid was over roughly 3.500 EUR See BARTKOVSKÝ, Martin. Nejbohatší český hráč počítačových her zlomil rekord. Agraelus dostal od fanoušků během pár dnů čtvrt milionu. Reflex.cz [online]. publikováno 27. 5. 2020 [vid. 31. 5. 2020]. 394 BARTKOVSKÝ, Martin. Agraelus – rozhovor: Hraním her vydělává půl milionu měsíčně. Jak? Reflex.cz [online]. publikováno 13. 12. 2019 [vid. 31. 5. 2020]. 395 ŠÁMAL, op. cit., s. 2753. 396 Afterall, to obtain video game, they must, e.g., agree to EULA. 397 Roughly 3.700 EUR and 5.500 EUR. See § 105a (1) (a) and (2); § 105b (1) (a) and (2) zákona č. 121/2000 Sb.

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as the direct perpetrator as discussed previously, liability as a civil offense participant, and obligation to intervene in the protection of others.398

Husovec claims the obligation to intervene in the protection of others as the leading legal source for liability of ISPs.399 We can differentiate this obligation under § 2900 of Civil Code, aiming at the active behavior of the obliged person and § 2901 of Civil Code, addressing the identical obligation in three specific situations of the passive behavior of the obliged person.

The passive obligation is limited only to the person (i.) who created or controls dangerous situation, (ii.) with a personal relationship with the perpetrator, and (iii.) for whom the intervention is cheaper in comparison to imminent damage.400 Intermediaries, in fact, often do create and control the dangerous situation as they do define rules and technical possibilities for their users.401 Similarly, their intervention may be cheaper in comparison to imminent damage as we elaborate further. Personal relationship, however, is, at best, doubtful. Therefore, we are going to focus on situations under (i.) and (ii.).

First, we need to answer the question of what can be qualified as a dangerous situation. A dangerous situation can be understood as a situation possibly leading to another’s harm.402 Key, however, is a high probability of harm to others. We can conclude intermediary’s subsumption under this category only following analysis of its business model and technical design and subsequent level of risk.403

Considering the ease of intervening related to imminent damage, we, and any court of law, must conduct a careful analysis considering not only the ease and price of intervening now but also the impact of such obligation in the future.404 Husovec uses Hand’s rule for this purpose, analyzing whether expenditure on intervention is lower than the cost of total damages multiplied by the probability of harm occurring.405 Only in situations where expenditure is lower such an obligation should be imposed. It shall be noted, however, the limit of the prohibition of general monitoring under Union and Constitutional law, as we elaborate in this Section.406

Depending on the specific case, we may, consequently, conclude whether the video game streaming platform did have an obligation to intervene in the protection of others for cases of passive behavior.

For active cases, we can depend on § 2900 of Civil Code imposing an obligation to intervene when own actions negatively impact freedom, life, health, or property of others. The fundamental problem, for application, however, remains what can be understood as property, and when does platform act.

398 Husovec, moreover, identifies liability for incompetent person and for the person used. These however, are not viable solution to our puzzle of video game streaming platform liability. Platform is not in position similar to school or parents to establish liability for incompetent person. Its users, moreover, are economically and organizationally independent, thus we cannot rely on liability for person used. See HUSOVEC, 2014, op. cit., s. 63-73. 399 Ibid., s. 59. 400 Ibid., s. 80. 401 POLČÁK et al., 2018, op. cit., s. 11-13. 402 HULMÁK, op. cit., s. 1517. 403 HUSOVEC, 2014, op. cit., s. 82. 404 Ibid., s. 83-84. 405 Ibid. 406 Ibid.

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Regarding the issue of property, Husovec, referencing Telec,407 argues that property within the meaning of § 1011 of the Civil Code does also includes intellectual property. Lavický, on the other hand, while directly referencing Telec in his commentary, challenged this conclusion and concluded that neither moral rights nor property rights constitute things within the meaning of the Civil Code.408

Such a conclusion is based on the fact that property rights are exempted as they are not transferable inter vivos, invaluable, and intangible.409 Telec and Tuma, nonetheless, refuse such reading.410 Consequently, subsuming intellectual property under the notion of property within the Civil Code meaning of property is after six years of effect of Civil Code subject of academic discussion. Subsequently, in the application of § 2900 of the Civil Code, we may run into authorities refusing to protect copyright under § 2900 of the Civil Code.

The further problem represents the issue of when the platform is active. Husovec concludes that omissive action does fall under provision § 2900 of the Civil Code.411 Contrary, Hulmák concludes that omissive action must fall under § 2901 of the Civil Code.412 This issue of application of the correct provision, thus, constitutes further problems when establishing liability.

In the application of both provisions, furthermore, we need to take account that most commonly, the obligation to intervene arises when ISP receives a notice. This reflects the fact that damage must be recognizable. Recognizability must be considered in the context of a particular situation and private life customs. In the context of the Supreme Court ruling, we must also put a higher standard on any professional provider of service with experience and knowledge in pursuit of its specialized activities.413

Recognizability, thus, must be viewed in the context of the professional orientation of intermediary and context of the situation. Any notices, further, contribute to recognizability, and intermediary must learn from such notices to reasonably prevent similar breaches in the future and to avoid willful blindness. Based on notice, ISP acts reactively. However, learning upon such cases, the intermediary must also start acting proactively.414

Next, we shall consider the liability as a participant. Accessory liability in Czech legal order can be based on §§ 2910 and 2915 of the Civil Code. Provision § 2910 of Civil Code prescribes breach of a legal obligation such as absolute right, among which also fall intellectual property rights.415 Provision § 2915 of the Civil Code prescribes solidary liability for offenses committed by several perpetrators. Thus, the Civil Code anticipates several offenders jointly liable. Civil law doctrine, moreover, accepts that participation is characterized by the absence of joint action and absence of intent to act jointly.416

407 TELEC, Ivo. Duševní vlastnictví a jeho vliv na věc v právním smyslu. Právní rozhledy. 2011, roč. 19, č. 12. 408 LAVICKÝ, Petr et al. Občanský zákoník I. Obecná část (§ 1 - 654): komentář [online]. Praha: C. H. Beck, 2014, s 1756 [vid. 15. 5. 2020]. 409 Ibid. 410 TELEC; TŮMA, 2019, op. cit., s. 335. 411 HUSOVEC, 2014, op. cit. s. 80. 412 HULMÁK, op. cit., s. 1514. 413 Rozsudek Nejvyššího soudu ze dne 28. 2. 2013, sp. zn. 25 Cdo 2819/2011. 414 HUSOVEC, 2014, op. cit., s. 88-91. 415 HULMÁK, op. cit., s. 1546. 416 HUSOVEC, 2014, op. cit., s. 58; HULMÁK, op. cit., s. 1583; ŠVESTKA, Jiří et al. Občanský zákoník: komentář [online]. 2. vyd. Praha: C. H. Beck, 2009, s. 1270 [vid. 18. 5. 2020].

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Husovec concludes that the application of liability as a participant broadens the concept of participation, which is unnecessary as an obligation to intervene in the protection of others suffice.417 Following our analysis above, we have identified specific problematic vital points such as classification of intellectual property as property in the application of § 2900 of Civil Code, or the problem of recognizability. Depending on the court of law and specific case, thus, one could apply these provisions in diversely varied forms. Consequently, we must conclude that considering an intermediary as a participant in an offense might be a viable tool for establishing liability for the content of others when the obligation to intervene proves inapplicable.

Finally, we must also address the solidarity for damages, unjust enrichment, and defensive claims. Solidarity is based on § 2915 of the Civil Code, which addresses only damages. The situation, consequently, gets complicated when we try to apply this norm to different legal claims. Defense claims such as removal claims may work while solidary. On the other hand, a refraining claim can get troublesome as one party, without any means to motivate the other may suffer consequences of another’s refusal to act accordingly.418

Unjust enrichment also may encounter problems if applied solidary. In regards to participation, unjust enrichment is incorrect to apply solidary unless expressly provided by law.419 In cases of obligation to intervene, on the other hand, the obliged person does not use the work, and its liability is only concluded by broadening the offense with the obligation to intervene. Moreover, the intermediary in such a situation does not save on license fees as it is typical for the direct offender and, thus, we would have to base any claim fair remuneration under § 40 (4) of Copyright Code.420

In terms of criminal and administrative law, we may conclude liability based on the participation of ISPs. We understand a participant as a person who willfully participates in an offense against the same object and pursues the same consequences, while the participation is indirect. Moreover, there must be an existing connection between acts of participant and perpetrator.421

Within the meaning of Czech legal order, participation is regulated under §§ 23 and 24 of Penal Code and § 11 of Code on Liability for Minor Offences. In penal law, we separate participation and complicity. Participation is characterized by the absence of joint action and the absence of will to act jointly.422 Complicity, on the other hand, can be concluded if we identify intentional joint action or will to act jointly.423

Participation can take many forms, and in our case of video game streaming platforms, we may mainly consider helping users breach intellectual property or inciting users to commit the breach. Consequently, if we conclude criminal liability of streamers under § 270 of Penal Code, we may, based on the existence of joint action or will to act jointly, pursue liability of ISP based on §§ 23 or 24 of Penal Code.

417 HUSOVEC, 2014, op. cit., s. 59. 418 Compare: Ibid., s. 61, 88. 419 Ibid., s. 60. 420 Ibid., s. 88. 421 HUSOVEC, 2014, op. cit., s. 57. 422 Ibid., s. 58. 423 ŠÁMAL, op. cit., s. 333-334.

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In terms of Code on Liability for Minor Offences, participation takes only the form of complicity. Therefore, we must seek joint action or intent to act jointly to conclude liability as a participant for offenses under § 105a (1) (a) and (2), and § 105b (1) (a) and (2) of the Copyright Code.424

Both in cases of participation under criminal and administrative law, participators are independently liable. Their liability, however, is based on acts of perpetrators. Consequently, the platform’s user acts, and we base any further liability on their actions according to the criteria above. Potentially, we may also conclude that ISP committed offense itself, however, we would have to seek specific legal provision prescribing qualified help as a breach of law425.426

Last but not least, we shall consider the safe harbor within the Czech legal order. E-Commerce Directive had been implemented into the Czech legal order as law n. 480/2004. The hosting ISPs are regulated under § 5. However, the implementation is, at best, lacking in execution. Paragraph, thus, states that hosting intermediary is not liable if (i.) in view of the subject of his activity and the circumstances and nature of the case, he could have known that the content of the information stored or the user's conduct was unlawful, or if (ii.) he has become aware of the unlawful nature of the content of the stored information or the unlawful conduct of the user and has not immediately taken all steps that may be required of him to remove or make such information inaccessible.427

We can observe that Czech legislators inverted the norm construction. Consequently, norm positively provides situations in which ISP is liable. Thus, instead of establishing safe harbor protection for specified cases, it seemingly establishes the liability of the ISP.428 This has been repeatedly criticized,429 however, no correction has taken place so far. As Maisner highlights, such a result is absurd as many penal norms require intentional fault while (i.) and (ii.) equal negligent behavior.430

Paragraph 2 goes even further in terms of imperfect implementation as it states that intermediary under the previous paragraph is always liable if it exercises, directly or indirectly, a decisive influence on the user’s activity.431 We can compare this to original wording:

“Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.”432

Similarly to the previous case, instead of determining a group of intermediaries outside of the scope of safe harbor protection, Czech implementation positively establishes liability for this group.433

424 JEMELKA, Luboš; VETEŠNÍK, Pavel. Zákon o odpovědnosti za přestupky a řízení o nich: komentář [online]. 2. vyd. Praha: C. H. Beck, 2020, s. 95 [vid. 17. 5. 2020]. 425 For example that intermediary performs communication to the public for cases under The Pirate Bay. 426 HUSOVEC, 2014, op. cit., s. 58. 427 § 5 zákona č. 480/2004 Sb. 428 MAISNER, Martin. Zákon o některých službách informační společnosti: Komentář [online]. Praha: C. H. Beck, 2016, s. 69 [vid. 15. 5. 2020]. 429 POLČÁK, 2012, s. 69. 430 POLČÁK et al., 2018, op. cit., s. 83-90. Wolters Kluwer, 2018.; MAISNER, op. cit., s. 67. 431 § 5 (2) zákona č. 480/2004 Sb. 432 Art 14 (2) Directive 2000/31/EC. 433 POLČÁK et al., 2018, op. cit., s. 83-90.

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While this legislative inconsistency is troubling, any application of Czech implementation shall be euroconformly interpreted, thus autonomously in alignment with E-Commerce Directive and relevant CJEU case law.434

This legislative imperfection confused the Czech Supreme court, which concluded that liability for stored information is based on § 5 Para 1 of implemented law.435 This norm, however, is not competent to establish any liability in light of the E-Commerce Directive. Municipal Court in Prague, however, despite confusing wording in case of Uloz.to correctly analyzed liability and safe harbor protection while providing a detailed description of the safe harbor system.436

Injunctive Liability Even in cases where we cannot conclude any liability of ISP, or if the intermediary is exempted by safe harbor protection, we can pursue liability of service requesting injunctive relief. Most commonly, injunctions take the form of refraining and removal claims or the right to information.437 If targeting non-infringer, however, we may impose an obligation only if reasonable to request.438 Its application must be for such cases related to obligations imposed upon the infringer.439 Further, we consider only injunctions obtainable against non-infringers, as an injunction against infringer follows less strict conditions.

We impose removal and refraining obligations under explicit provision § 40 (1) (f) of Copyright Code. We must, further, differentiate between intermediaries being directly liable and cases when their service is used by third parties to infringe. Provision, thus, allows applying for prohibiting the provision of service. We shall, nonetheless, again remind CJEU ruling in L’Oréal v eBay stating that injunction “cannot have as its object or effect a general and permanent prohibition.”440 Using argumentum a maiore ad minus we may easily conclude that the abovementioned provision also allows for lesser obligation such as the prohibition of certain specific conduct on the platform.441

Rightsholders can claim the right to information under § 40 (1) (c) (3) of Copyright Code. Information is limited in the scope of the unauthorized use, price of service, identification of person infringing, and other information related to unauthorized copies.442 Further, it can be applied to a non- infringing intermediary only if the service used for infringement is provided for direct or indirect economic benefit.443 In its application, moreover, we must consider limitations by other rights such as data protection.444

We shall further specify whether claims under § 40 (1) of Copyright Code must be supported by court intervention. Generally, claims under this provision arise with committed delict. However, in situations of balancing against other rights, such as data protection, we must seek a higher passing level to ensure sufficient protection. Otherwise, any intermediary would have no motivation

434 MAISNER, op. cit., s. 70. 435 Rozsudek Nejvyššího soudu ze dne 31. 7. 2013, sp. zn. 23 Cdo 2623/2011. 436 Paras 25–27 Rozsudek Městského soudu v Praze ze dne 22. 2. 2019, sp. zn. 34 C 5/2017. 437 Ibid., s. 164-171. 438 § 76 zákona č. 99/1963 Sb., Občanský soudní řád. 439 SVOBODA, Karel et al. Občanský soudní řád: komentář [online]. 2 vyd. Praha: C. H. Beck, 2017, s. 310 [vid. 18. 5. 2020]. 440 Para 142 Judgment of the CJEU, L’Oréal v eBay. 441 HUSOVEC, 2014, op. cit., s. 168. 442 See § 40 (1) (c) zákona č. 121/2000 Sb. 443 Ibid., See § 40 (1) (c) (3). 444 HUSOVEC, 2014, op. cit., s. 172.

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to expend finance on proper examination of claims.445 Similarly, in claims seeking removal or refrain, which might impose general monitoring obligations, it is desirable to seek court authority.

Consequently, any video game streaming platform may be held accountable for its users' content.446 If we find platform non-infringer, any injunctions are limited in the scope of § 40 (1) (f) and (c) (3) of the Copyright Code. Any infringer, however, may be targeted by a broader range of injunctions according to § 40 of Copyright Code. Injunctions are, moreover, limited by general monitoring prohibition studied by other authors.447

4.4 Interim Conclusion In Section 4.1, we have concluded that video game streaming amounts to copyright relevant use of work, namely the communication to the public. Communication to the public consists of two building blocks, the act of communication directed to the public.448 In general, video game streaming falls under communication to the public. Nonetheless, we have identified the category of F2P games for which, for lack of new public449 and deliberate intervention,450 such a conclusion might be more problematic.

Further, we have discussed the possibility of video game streaming platforms communicating to the public themselves in the light of The Pirate Bay.451 Subsequently, platforms operation might amount to communication to the public if it indexes, categorizes, deletes, or filters content uploaded by its users, notwithstanding whether such activities are carried out manually or automatically.452 Moreover, we presume constructive knowledge for platforms operating for profit.453 Furthermore, The Pirate Bay ruling could extend to commercial operators such as video game streaming platforms.454 In consequence, parties carrying out the acts of communication to the public shall be held direct perpetrators for cases without proper authorization.

For cases of communication to the public, moreover, we must consider the specific nature of works protected by copyright. Video games might potentially be communicated as a whole, depending on the currently inconclusive legal status of video games. Video game elements that are protected by copyright and do not require interaction, furthermore, can be communicated to the public via webcast.455

In Section 4.2, we focused on authorization issues based either on copyright exemptions and limitations or on license agreements. First, we have ruled out copyright exemptions and limitations as a possible ground for video game streaming.

Next, we focused on license agreements first studying the Who Let’s Play database and second analyzing contractual terms of three specific rightsholders. Who Let’s Play database showcased

445 Ibid., s. 178. 446 Even if not liable. See HUSOVEC, 2017, op. cit., s. 8. 447 For detailed analysis of general monitoring under Czech law see HUSOVEC, 2014, s. 84-86. 448 ROSATI, 2017, op. cit., s. 3. 449 Para 45 Judgment of the CJEU, Filmspeler; Para 38 Judgment of the CJEU, SGAE. 450 ROSATI, 2017, op. cit., s. 4. 451 Para 47 Judgment of the CJEU, The Pirate Bay. 452 ROSATI, 2017, op. cit., s. 11. 453 Ibid., Para 46, Also see ROSATI, 2017, op. cit., s. 10. 454 Compare with the pending YouTube referral. See ROSATI, 2019a, op. cit. 455 Such as audio elements, video elements except GUI or other elements such as literary elements, choreographies, scenarios, maps, or architecture.

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the difficulty for streamers to locate appropriate authorization as only a fragment of rights holders provided authorization clearly in EULA. Similarly, it showcased that limitation of non-commercial use was occurring limitation to video game streaming. Common practice, furthermore, was rightsholders posting authorization to social networks. Legal certainty of such authorization, however, might prove doubtful as authorizations tend to be outdated, posted by people not capable of acting on behalf of the rightsholder, and are extremely hard to locate.

Putting such obstructions to video game streaming, moreover, proves utterly unnecessary as it is mostly grounded in bad license practice rather than in the unwillingness of rightsholders to grant necessary rights.456

Inspection of specific contractual terms, moreover, proved that license itself can be heavily outdated457 or could specify exceptions too narrowly458. Moreover, we even identified the complete absence of contractual license terms in the case of Stardew Valley.

Subsequently, we have formulated the general approach in contrast to Halliday.459 We argue that rightsholders consider video game streaming commercial exploitation of their video games. Group of rightsholders provides content creators with appropriate exceptions with different degrees of accuracy.460 Other rightsholders, on the other hand, refuse to grant necessary monetization rights altogether.461

Subsequently, legal grounds for video game streaming remain problematic for entirely unnecessary reasons. Insofar, moreover, rightsholders used the copyright as a tool of censorship in attempts to silence undesirable content, which harmed their public image on top of the copyright infringement.

In Section 4.3, we have explored the consequences of unauthorized communication to the public. The liability is based on national norms. Namely, we have identified streamers as direct perpetrators and, possibly, also video game streaming platforms as direct perpetrators for cases of their communication to the public in the light of The Pirate Bay.462

For cases of the platform not communicating to the public, we must seek indirect liability legal titles, most likely obligation to intervene or participation.463 We could, moreover, target platforms under penal or administrative norms.464

456 We have, nonetheless, identified for example Capcom or 2K Games as rightsholders limiting uses of their works willingly and in clear manner. Remaining rightsholders, however, perceive no enforcement as profitable and with to not anger the community. See for example YARWOOD, op. cit. 457 Such as in the case of Blizzard. 458 Such as limiting monetization exclusively to advertisement revenue while video game streaming services also monetize subscriptions and direct donations which, hence, fall outside these definitions. Similarly, we have seen lists of specific partner websites which, in all cases, contained YouTube. Other video game streaming platforms, on the other hand, did not make it on the lists. 459 HALLIDAY, op. cit., s. 24. 460 Compare Valve, Epic Games and Blizzard license terms. 461 See Capcom or 2K Games contractual terms. 462 For more details on direct liability see Section 4.3 and HUSOVEC, 2014, op. cit., s. 51-52. 463 HUSOVEC, 2014, op. cit., s. 52 et seq. 464 Ibid., s. 55-58.

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Next, we have considered the application of safe harbor protection subject to four requirements.465 Intermediaries fulfilling these criteria are covered with safe harbor protection except injunctive claims, which serve as carve-out from this liability-free zone.466

465 Providers need to (i.) be passive, (ii.) do not have actual knowledge of illegal activity or information and, as regards claims of damages, be not aware of facts or circumstances from which the illegal activity or information is apparent, (iii.) upon obtaining such knowledge or awareness, providers need to act expeditiously to disable access or remove the information, and (iv.) the recipient of the service shall not act under the authority or control of the provider. See HUSOVEC, 2017, op. cit., s. 52-53. 466 Ibid., s. 57 et seq.

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5. DSM Directive The DSM Directive is a legislative document adopted in April 2019 by European legislative bodies with the aim to modernize EU copyright rules for the digital era.467 DSM Directive represents the result of lengthy negotiations, and it is to be transposed into national law by 7 June 2021.468 The negotiations, however, were marked by controversies noted by the academic community469 and the general public470.

DSM Directive represents a radical change to established copyright rules in the online environment under the current framework. While the availability of injunctions under the DSM Directive remains untouched,471 Directive substantially revises existing rules for intermediary liability and operating of intermediaries.472

Subsequently, we aim to provide an overview of the video game streaming industry, intersecting rights, and relationships, and address any liability issue. We shall analyze obligations prescribed to the industry under the DSM Directive with a particular focus on Art 17 (1)-(5) as they directly impact video game streaming platforms. We do not claim that remaining provisions do not impact their business. However, those impacts have been studied by others.473 Moreover, we shall not focus on copyright limitations and exemptions under Art 17 (7), although, potentially, they might serve a legal ground for webcasting.474

We must, further, note that the European Union is not the only stakeholder moving away from a well-established intermediary liability model. In May 2020, US Copyright Office called the DMCA safe harbor system flawed, specifically highlighting:

“current implementation of Section 512 is out of sync with Congress’ original intent, including: eligibility qualifications for the service provider safe harbors; repeat infringer policies; knowledge requirement standards; specificity within takedown notices; non-standard notice requirements; subpoenas; and injunctions.”475

5.1 Article 17 We shall separate analysis of Art 17 into three Sections focusing on three areas corresponding to the structure of Section 4. First, we shall study changes to communication to the public under

467 Copyright reform: the Commission welcomes European Parliament’s vote in favour of modernised rules fit for digital age. European Commission [online]. publikováno 26. 3. 2019 [vid. 27. 5. 2020]. 468 On current implementation progress See DSM Directive Implementation Tracker. International Communia Association [online]. Notion [vid. 28. 5. 2020]. 469 STALLA-BOURDILLON, Sophie et al. An academic perspective on the copyright reform. Computer Law & Security Review [online]. 2017, roč. 33, č. 1. 470 Such as the „Meme Ban“ See REYNOLDS, Matt. What is Article 13? The EU’s divisive new copyright plan explained. Wired [online]. publikováno 24. 5. 2019 [vid. 27. 5. 2020]. 471 HUSOVEC, Martin; QUINTAIS, João Pedro. How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms [online]. 2019, s. 5 [vid. 30. 12. 2019]. 472 HUSOVEC, 2017, op. cit., s. 70. 473 HALLIDAY, op. cit. 474 For anylysis on exemtpions and limitaiton See, for example, Article 17 Stakeholder dialogue: COMMUNIA input paper, op. cit. or KELLER, 2020, op. cit. 475 Copyright Office Releases Report on Section 512. Copyright.gov [online]. publikováno 4. 6. 2020 [vid. 27. 5. 2020].

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Art 17 (1). Second, we shall analyze the emerging authorization issues. Third, we must analyze changes to liability under the new directive.

5.1.1 Use of Work Protected by Copyright Under Art 17 (1), OCSSPs perform an act of communication to the public. We must, thus, consider who is performing the act of communication to the public. Next, we must analyze the character of communication to the public under Art 17 (1).

Online Content Sharing Service Provider “‘online content-sharing service provider’ means a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes.”476

First, we shall answer the question, which services fall under the DSM Directive framework. Critical in our assessment is the category of OCSSSPs established under Art 2 (6). We must also assess its applicability to video game streaming services.

According to Rec 63, we hold platform an OCSSP on a case by case basis.477 As explained in Section 2.2, video game streaming platforms may store third-party information only for the duration necessary for transcoding and streaming to viewers.478 Thus, as Rosati highlights, we must consider whether the temporality of storage does play any relevance to the qualification of OCSSPs.479

The temporality of storage is criterium determinant to the classification of ISPs under the three E- Commerce categories. Hosting ISPs are services providing storage without any particular temporal limitations. Caching ISPs, on the other hand, offer only temporary storage.480

We might argue that reference to Art 14 of E-Commerce Directive in Art 17 (3) excludes the applicability of DSM Directive to ISPs offering transient or temporary storage. It would, however, be incorrect to seek guidance in the E-Commerce Directive, which addresses limitations of liability for third-party activities. DSM Directive, on the contrary, establishes liability for providers’ actions.481

Moreover, we have previously established that even if the abovementioned limitation applied, video game streaming platforms fall under the category of hosting ISPs as they do not provide automatic, intermediate and temporary storage within the meaning of Art 13 of E-Commerce Directive.482

Determining factor, however, shall be the purpose pursued by services that equal storing and giving access to a large quantity of protected works uploaded by users.483 Consequently:

476 Art 2 (6) Directive 2001/29/EC. 477 Ibid., Rec 63. 478 ROSATI, 2020, op. cit., s. 2. 479 Ibid., s. 5. 480 Ibid. 481 Ibid., s. 5-6. 482 Ibid., s. 5. 483 Art 2 (6) Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

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“What is relevant for the qualification of a provider as an OCSSP in principle is the purpose that it pursues (to store and give the public access to a large amount of protected subject matter uploaded by users) and, with that, the role that it performs (organization and promotion of such subject matter for profit-making purposes), not the duration (e.g., permanent or temporary storage of protected content) of the activity at hand.”484

Moreover, we must highlight the criterium of for-profit making purposes. This criterium serves to exclude services that do not play an important role in the online content market and do not compete with other online content services for the same audience.485 Video game streaming services, however, do pursue profit-making purposes, for example, by providing advertising or subscriptions.

Following our analysis above, we must qualify video game streaming platforms as services falling under the category of OCSSP. Consequently, video game streaming platforms are obliged under Art 17 to operate in ways discussed in the following Sections 5.1.2 and 5.1.3.

Communication to the public “Member States shall provide that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.”486

DSM Directive establishes that OCSSPs “perform an act of communication to the public (…) for purposes of DSM directive.” However, the right of communication to the public was introduced into Union law by Art 3 of the InfoSoc Directive. It is, therefore, essential to investigate whether the DSM Directive’s communication to the public introduces new and different communication to the public. This question becomes especially important in interpreting Art 17 (1) in light of CJEU's current case law. Moreover, we must ask whether communication to the public under Art 17 (1) constitutes the authors’ exclusive right.

There are three possible ways in which we can interpret the communication to the public under the DSM Directive. We can see it as (i.) carve-out from the international minimum standard, (ii.) carve- out from the EU extension of communication to the public, and (iii.) extension of the EU extension.487 We shall, thus, inspect these three interpretations.

Carve out from the international minimum would reflect the communication to the public under international treaties.488 However, there remain two substantial issues with this interpretation. First, Art 17 would have to comply with the three-step test as prescribed by international treaties.489 Second, other signatories would have to legislate equivalent rights.490 Consequently, it would be difficult to argue in favor of such interpretation as no other signatory has such a broad exploitation

484 ROSATI, 2020, op. cit., s. 6-7. 485 Rec 62 Directive 2019/790. 486 Ibid., Art 17 (1). 487 HUSOVEC; QUINTAIS, op. cit., s. 5-8. 488 Ibid., s. 5. 489 Ibid., s. 5-6. 490 Ibid., s. 5.

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right, and the liability mitigation mechanism might not comply with tree step tests under international treaties.491

Observing Art 17 of the DSM Directive as carve-out from EU extension would encompass a pre- existing right covering OCSSPs even without specific provision. Either we would consider communication to the public, thus, subject to a three-step test per Art 5 (5) of the InfoSoc Directive, or as lex specialis to Art 3 of the InfoSoc Directive, thus not applying the three-step test according to the InfoSoc Directive.492

The last interpretation, as an extension of the EU extension, introduces a communication to the public on top of previously legislated one. Consequently, the DSM Directive would introduce a sui generis communication to the public into the Union law not subject to restraints of InfoSoc Directive.493

Husovec and Quintais, consequently, claim that interpreting Art 17 as either lex specialis or sui generis communication would be compatible with Union law. The critical point in this distinction, however, would be the applicability of current case-law, which would apply only to the lex specialis option.494 Nonetheless, CJEU shall have the final word on the matter, possibly even in the pending YouTube referral.495

For our purposes, however, we shall draw the conclusion that both interpretations are within the possibilities. While Husovec and Quintais inclined towards the sui generis option, they cannot rule out observing this communication to the public as lex specialis.496 We shall, thus, operate with both interpretations for this Section.

Interestingly, we must note the approach represented by some collective rights management organizations straight-out refusing such interpretation. On the contrary, they claimed this right to fall under the InfoSoc Directive right.497 However, as established above, the situation is much more complicated from a legal standpoint.

Further, we must also draw attention to the fact that under Art 17 of the DSM Directive, OCSSPs themselves are the ones performing the communication to the public.498 Previously, we have discussed the situation of service being an inactive player hidden under the safe harbor. However, with the DSM Directive, we are shifting towards explicitly stating that OCSSPs act if they give the public access to copyright-protected works uploaded by its users.499

Last but not least, we must highlight the lack of agreement on the nature of communication to the public under Art 17 (1). Janssens, on the one hand, perceived the communication to the public under Art 17 (1) as a hybrid.500 On the other hand, Husovec and Quintais qualified it as exclusive right

491 Ibid., s. 5-6. 492 Ibid., s. 6-7. 493 Ibid., s. 8. 494 Ibid., s. 10. 495 ROSATI, 2019a, op. cit. 496 Ibid. 497 See 27:15 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license? In: YouTube [online]. 17. 6. 2019 [cit. 7. 5. 2020]. 498 ROSATI, 2020, op. cit., s. 6. 499 HUSOVEC; QUINTAIS, op. cit., s. 3. 500 12:10 Article 17: How to implement new rules for online platforms? First Panel, General issues: What is it? And who is the target?, op. cit.

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and noted several possible objections.501 Different classification, however, could bear significance for remedies such as damages or injunctions.502 Similarly to previous question, only CJEU can provide us with absolute answers.

In summary, thus, we cannot, with certainty, determine the nature of communication to the public under Art 17 (1). We can consider it a lex specialis or sui generis communication to the public. Moreover, we could observe communication under Art 17 (1) as exclusive authors’ right or copyright exception or limitation.503

Subsequently, the different nature, for example, could impact current CMO mandates, which might or might not extend to communication under Art 17 (1) based on the perspective. Subsequently, CMOs, for example, could be required to seek new contracts with authors for representation in the scope of Art 17 (1).504

5.1.2 Authorization In Section, we shall focus on the authorization issues in the light of the DSM Directive. We must recall our previous conclusion in Section 4.2 on the scope of authorization provided by rightsholders to streamers, which bear relevance on obligations OCSSPs to seek authorization themselves. Subsequently, we shall consider the obligation to obtain authorization under Art 17 (1). Moreover, we shall consider the authorization merger under Art 17 (2).

Obligation to obtain authorization “An online content-sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter.”505

Under Art 17 (1), OCSSPs have further prescribed an obligation to seek authorization, most commonly license, for their acts of communication to the public. We must, however, consider different options available to the industry in obtaining authorization. Moreover, these options are just as much available to the lawmakers, and the national implementation may prescribe a specific authorization scheme for OCSSPs’ communication to the public under Art 17 (1).506

Further, we must note that authorization is a broader term to license and may include other options, such as making the communication an exception or copyright limitation.507 Consequently, Husovec and Quintais, identified six possible authorization schemes, (i.) direct licensing, (ii.) voluntary collective licensing, (iii.) collective licensing with extended effect subject to Art 12, (iv.) mandatory collective management, (v.) statutory license, and (vi.) hybrid licensing.508 Halliday, moreover,

501 HUSOVEC; QUINTAIS, op. cit., s. 9, 15. 502 36:00 Article 17: How to implement new rules for online platforms? First Panel, General issues: What is it? And who is the target?, op. cit. 503 HUSOVEC; QUINTAIS, op. cit., s. 15. 504 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license?, op. cit. 505 Art 17 (1) Directive 2019/790. 506 Ibid., s. 15-16. 507 Ibid., s. 16. 508 Ibid., s. 17.

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identified implied licensing as the possible legal title for operations under the (i.) direct licensing scheme.509

Firstly, we shall discuss the direct licensing as an option. Any direct license would need to specify the rights in question, therefore, differentiating between lex specialis and sui generis communication to the public does not make any difference. Consequently, both OCSSPs and users need to seek authorization for their activities unless their authorizations merge under Art 17 (2), as explained later.510

On the other hand, we must also consider situations of users’ direct license extended to OCSSPs. According to Rec 69, the extension of license may happen if the rightsholder explicitly provided users with authorization to communicate work to the public. The nature of such license, thus, is that users obtain the license for their activities, which extends to necessary acts of communication by OCSSPs.511

Halliday, moreover, claims that OCSSPs might also be extended non-explicit license arguing that Rec 69 is non-binding provision.512 He claims the legal basis of Soulier where CJEU provided that implicit expression of consent might also be applicable.513 Halliday, thus, claims that extending authorization is in line with CJEU case law.514 We can find a similar note by Husovec and Quintais, who, however, contradict the note by referring and emphasizing Rec 69 condition of explicitness.515

We, however, must note substantial differences between the InfoSoc Directive, which served as a legal basis for Soulier and between the DSM Directive. Namely, the InfoSoc Directive does not limit consent to explicit provision. Consequently, its applicability might not be as clear, and we must advise against the reading of possible implicit license as it makes OCSSPs vulnerable to not being covered by license at all.

Whether OCSSPs would rely on an explicit or implicit license, we must inquire whether relying on this option would suffice the requirement of Art 17 (4) (a) to make best efforts to obtain authorization. Similarly to Halliday, we must argue that obtaining authorization by reliance on users’ authorization is passive in nature and, consequently, if users fail to obtain authorization, OCSSPs could not benefit from protection under Art 17 (4).516

Second, we must consider the voluntary collective licensing. Such an option presents us with a voluntary organization of rightsholders into CMOs. Voluntary CMOs operate under a special Union legal regime, and we must note problems with such an authorization model. Mainly, the license provided by voluntary CMOs can rarely provide a representative portfolio of works to suffice obligations under Art 17 (4) (a) on a multi-territorial basis.517 Consequently, voluntary collective licensing does not seem to provide workable solutions.

The point of lack of representative portfolio arises from the fact that CMOs cannot cover non- members. The music industry, in particular, has a well-developed structure and presence of CMOs.

509 HALLIDAY, op. cit., s. 27. 510 HUSOVEC; QUINTAIS, op. cit., s. 18. 511 Ibid. 512 HALLIDAY, op. cit., s. 27. 513 Para 35 Judgment of the Court of 16 November 2016, Marc Soulier, Sara Doke v Premier ministre, Ministre de la Culture et de la Communication. C 301/15. 514 HALLIDAY, op. cit., s. 27. 515 Compare p. 18 and 19 in HUSOVEC; QUINTAIS, op. cit., s. 18-19. 516 HALLIDAY, op. cit., s. 27. 517 HUSOVEC; QUINTAIS, op. cit., s. 19.

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Thus, it is one of few industries where it might be possible to obtain a truly representative catalog of works from CMO. Otherwise, the catalog obtained would, most likely, not suffice best efforts to obtain authorization under Art 17 (4) (a).518

Regarding the pan-European license point, we must note two possible paths, either (i.) CMO could provide catalog it represents for the entire territory of the EU, or (ii.) employ the Collective Rights Management Directive’s rules on multi-territorial licensing. The second option, however, seems beyond reach as it is available only to rights covered by the InfoSoc Directive to musical works. Thus, only if we consider the communication to the public under Art 17 (1) lex specialis, CMOs might provide a multi-territorial license to musical works under Directive rules. The first option, on the other hand, depends on the presence and portfolio of CMOs. Except for the music industry, however, we hardly can find CMOs able to license a substantial catalog on the entire territory of the Union.519

The third option employs a collective licensing mechanism with extended effect envisioned by Art 12. Its essence lies in the ability of CMOs to include non-members into their catalog provided non-members do not opt-out. However, for CMO to manage such a system, it would need to be sufficiently representative. Consequently, industries without well-developed collective rights management system could not employ this authorization scheme.520

Moreover, we must consider potential problems of direct licensing, which similarly apply also to voluntary collective licensing and collective licensing with extended effect. Foremost, if OCSSPs must obtain license on the national level for 27 states, they might opt to geo-block content.521 Geo- blocking would be a reasonable choice for markets that are not able to generate enough revenue to cover the cost of authorization.522 To put an example, if YouTube found out that rap music does not generate enough revenue in the Czech Republic to cover its license, it might decide not to license rap music for the country at all.

Furthermore, users must rely on OCSSPs provided information to assess where their acts are covered by OCSSPs’ license subject to Art 17 (2).523 Consequently, unless national drafters provide a requirement for transparency or the OCSSP in question is transparent by nature, users find themselves in a complicated situation of not knowing what content they can share without possible consequences.

The fourth option, again, employs CMOs, but this time rightsholders must administer their rights through a CMO, either by law or by necessity.524 Husovec and Quintais concluded that nor considering the right of communication to the public as lex specialis neither as sui generis communication

518 Ibid., s. 20. 519 Ibid., s. 19-20. 520 Moreover, if employed, CMOs must proceed in consideration of other criteria under Art 12 such as that direct licensing is too costly or impractical, in well-defined areas of use, and they must safeguard legitimate interests of rightsholders. See Ibid., s. 20. 521 SENFTLEBEN, Martin. Bermuda Triangle – Licensing, Filtering and Privileging User-Generated Content Under the New Directive on Copyright in the Digital Single Market [online]. 2019, s. 4 [vid. 27. 5. 2020]. 522 Ibid. 523 Ibid., s. 3-5. 524 Husovec and Quintais provide the example of tandem of statutory license and mandatory collective licensing where rightsholder must by law or neccessity manage their rigths through CMOs. See Ibid., s. 21.

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precludes member states from employing this mechanism.525 However, this management scheme might still be subjected to some obligation under the Collective Rights Management Directive.526

The fifth option envisions creating a statutory license for the right of communication to the public under Art 17 (1), shifting the exclusive author’s right towards an exception. Rightsholders would, thus, have to suffer intrusion for determined compensation. Whichever the nature of communication to the public under Art 17 (1), we can safely conclude that lawmakers are free to establish this authorization scheme. However, national lawmakers need to carefully consider compensation- determination procedure to safeguard rightsholders rights.527

While on one side, statutory licensing presents an advantageous solution for lawmakers as it provides effective means of enabling OCSSPs operation while safeguarding rightsholders’ rights, it cannot cover commercial acts of their users. As discussed further in the next Section, commercial activities of users would, hence, remain subject to contractual freedom not effectively solving all possible content exploitations.528

Last but not least, we must consider hybrid licensing, which effectively combines some of the previous forms of authorization schemes.529 We might, for example, combine statutory licensing with mandatory collective management to take the burden off national agencies collecting the statutory license fees.530

For our purpose, we shall highlight direct licensing, voluntary collective licensing, and collective licensing with extended effect as video game streaming platforms could encounter several problems under these schemes, as discussed in Section 5.2.2. The remaining solutions, however, present workable solutions for the video game streaming market.

Authorization Extension to Users “authorisation shall also cover acts carried out by users of the services falling within the scope of Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis or where their activity does not generate significant revenues.”531

Provision of Art 17 (2), thus, extends any authorization granted to OCSSPs also to its users. The reference to InfoSoc Directive covers the article addressing the rights of communication to the public and making work available to the public. Thus any user act falling within the scope of these rights is covered by OCSSPs’ authorization except the provided limitations.532 As we have established in Section 4.2, video game streaming constitutes a communication to the public and, thus, such authorization is necessary.

525 Ibid., s. 22. 526 Ibid. 527 Ibid., s. 22-23. 528 Ibid., s. 24. 529 Ibid. 530 Such as the US‘ mechanical license for musical works for which fees are handled by Government, Publishers and HFA as CMO. See PARKS, Kevin. Music & Copyright in America: Toward the Celestial Jukebox. Reprint edition. Chicago: American Bar Association, 2014. 531 Art 17 (2) Directive 2019/790. 532 Art 3 Directive 2001/29/EC.

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Further, we shall investigate the limits of authorization extension. These limits are (i.) users acting on a commercial basis, and (ii.) user’s activity generating significant revenues.

We shall identify users acting on a commercial basis as a subjective criterium determining limitations of obligation to seek authorization. We must seek guidance in Rec 69, explaining a commercial basis as for example, “sharing content without any profit-making purpose.”533 As Halliday observes, a critical part of the definition is the profit-making purposes which imply subjective criterion in mind.534

Significant revenues, on the other hand, represent an objective criterium for instances where content, ignoring the intent of the user, does generate significant revenue.535 This criterion makes the classification of user’s conduct simpler as there might be instances where determining users’ intent might be difficult.

Exploitation acts of OCSSPs are, consequently, merged with non-commercial exploitation of users. As soon as OCSSP obtains a license for its activities, the merged licenses cannot be split.536 However, users’ commercial acts falling outside the Art 17 (2) are regulated exclusively under Art 3 of InfoSoc Directive.537

5.1.3 Liability Third, we must analyze the shift in platform liability determination. In Section 4.3, we have determined that platforms could be held a direct perpetrator in the light of The Pirate Bay ruling or otherwise, secondarily liable for acts carried out by users.538 Safe harbor protection under the E- Commerce Directive nonetheless shielded passive providers from bearing the liability.

Under the DSM Directive, on the contrary, OCSSPs carry out acts of communication to the public, and their liability cannot be shielded by E-Commerce Directive safe harbor. Instead, the DSM Directive introduced a new liability exemption mechanism. Last but not least, this Section shall address liability for acts falling outside authorization merger under Art 17 (2).

E-Commerce Inapplicability “When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in this Directive, the limitation of liability established in Article 14(1) of Directive 2000/31/EC shall not apply to the situations covered by this Article.”539

OCSSPs, per definition, perform their own acts of communication to the public. Compared to previous regime maintaining ISPs as passive actors unless they breached their passivity, we, per definition, move away from previously known safe harbor regime. Explicitly regulating so, moreover, might have only declaratory effect as active behavior precludes intermediary from utilizing the entire relevant section of E-Commerce Directive.540

533 Rec 69 Directive 2019/790. 534 HALLIDAY, op. cit., s. 19. 535 Ibid., s. 20. 536 HUSOVEC; QUINTAIS, op. cit., s. 13. 537 Ibid., s. 14. 538 Para 47 Judgment of the CJEU, The Pirate Bay. 539 Art 17 (3) Directive 2019/790. 540 HUSOVEC; QUINTAIS, op. cit., s. 3.

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As noted above, however, this paragraph shall not be understood as a limitation of OCSSPs to intermediaries previously falling under the category of hosting ISPs. The key criterium is the purpose of their activity. As long as service provider pursues storing and giving access to a large quantity of protected works uploaded by users, it falls under the category of OCSSPs.541

Liability Exemption “If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).”542

Art 17, moreover, establishes a new safe harbor applicable to OCSSPs. Safe harbor, thus, covers OCSSPs’ own acts of communications to the public for which they failed to obtain authorization and offers them alternative escape route out of liability. Safe harbor, however, is limited by a set of rules which we shall discuss below.

Moreover, we must highlight that these conditions apply cumulatively. Consequently, if OCSSPs, for example, fulfill obligations under (b) and (c) but fail to make best efforts to obtain authorization, they still fall outside this provision and bear the liability.543

Arguably, Rec 66 opposes such reading by explicitly stating that unless rightsholders provide relevant and necessary information under Art 17 (4) (b), OCSSPs cannot be held liable for unauthorized communication to the public.544 We must, however, oppose this reading. Rec 66 presents a non-binding provision serving to interpret respective articles. Art 17 (4), on the other hand, is written as cumulative criteria and takes precedence. Consequently, lawmakers should have used different formulation of Art 17 (4) if they wanted to construct this norm in such a way. We might illustrate this point thusly:

“If no authorisation is granted and rightsholders have provided the service with the relevant and necessary information, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have.”

541 Art 2 (6) Directive 2019/790. 542 Art 17 (4) Directive 2019/790. 543 See Quintais at 52:55 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license?, op. cit. 544 Such as the claim of SACEM representative on European Copyright Roundtable debate. See Ibid., 40:20.

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“If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter for which rightsholders provided the service with the relevant and necessary information, unless the service providers demonstrate that they have.”

Second, the Rec 66 rather implies that unless OCSSPs have been provided with the relevant and necessary information, they cannot ensure the unavailability of specific works. Consequently, they cannot be held liable as they fulfilled the requirement under Art 17 (4) (b) and (c). However, they still must meet the best efforts to obtain authorization. Consequently, Rec 66 serves to affirm the principle of two out of three cumulative criteria which solely depend on the rightsholders’ activity.

Best effort First, we must note the repeated use of OCSSPs’ best efforts. In May 2019, Rosati noted substantial differences in respective translations, namely the “greater efforts,” “best efforts,” “greatest efforts,” and “all efforts.”545 A brief review of respective language versions proves this remains true in June 2020, and translations have not been corrected or aligned.

Analyzing the respective translations, we must note that there might, in fact, be differences in meaning between respective translations. These differences may rely on pure linguistic differences. However, they may also involve a move from subjective criteria such as in made their best efforts towards employing more objective assessment of their own efforts, such as made their greatest effort.546

The DSM Directive does not further explain best efforts, interpretation of the term, so crucial for the entire Art 17 (4). We might, thus, be facing interpretation issue already on this early stage. Issue, which might complicate the application of safe harbor and its conditions across the entire European Union.547

However, we must highlight the subjective limitations of Art 17 (5). In its light, we must consider the conditions set by Art 17 (4) in consideration of particular OCSSP. Consequently, best efforts must be proportionate to the type or size of the service.548 Thus, best efforts made by YouTube and some smaller video sharing platforms operating on a national scale must be deemed substantially different.

Best efforts to obtain authorization Under Art 17 (4) (a), OCSSPs must, first, make their best efforts to obtain authorization. We must, however, ask what best efforts under this obligation is. Quintais considers a tiered system based on Art 17 (5).549 We might, therefore, even consider only legal information on the OCSSPs’ webpage with a contact form to be sufficient in cases of small start-ups. On the contrary, YouTube would need

545 ROSATI, Eleonora. DSM Directive Series #5: Does the DSM Directive mean the same thing in all language versions? The case of „best efforts" in Article 17(4)(a). The IPKat [online]. publikováno 22. 5. 2019b [vid. 30. 5. 2020]. 546 Ibid. 547 Ibid. 548 HUSOVEC; QUINTAIS, op. cit., s. 4. 549 See 38:00 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license?, op. cit.

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to pass a much higher bar.550 Moreover, best efforts to obtain authorization must necessarily also include the rightsholder’s refusal to grant the license.551

Consequently, we might consider measures such as contact form, approaching the major players in the industry, contacting the collective rights management organization, or a diligent search of rightsholders to pass the bar depending on the size of the platform. However, whichever of the measures would suffice, it should aim predominantly on the main content on the OCSSPs’ service.552

We must also consider the license fee in weighting the best efforts. Again, depending on the size of the platform, its business model, or its audience, we must consider what authorization fee presents fair remuneration.553 Surely, a small start-up video sharing platform operating on a national scale cannot afford as much as YouTube. Consequently, if OCSSP approaches the rightsholder who offers simply too high of a price, OCSSP is still able to utilize the liability exemption.

Moreover, we must also note potential competition issues raised by forcing OCSSPs to negotiate their license terms. Larger OCSSPs might be inclined to abuse their position and put pressure on significantly smaller licensing groups such as independent labels or individual authors. Their tactics may even amount to unfair practices such as in the case of alleged Google’s attempt to extort IMPALA.554 Consequently, competition authorities must step in to ensure the proper functioning of this new authorization obligation.

Subsequently, Husovec and Quintais designate the safe harbor escape route to be applicable only if (i.) rightsholders deny authorization, or (ii.) authorization made the best efforts to gain the authorization.555 OCSSPs can never know all works users might upload to their service and cover all possibilities by license. Moreover, they might face troubles in obtaining authorization for 27 different jurisdictions.556 We can, therefore, safely assume that OCSSPs must rely on the exemption mechanism, at least in a number of cases.557

Best efforts to ensure unavailability Under the Art 17 (4) (b) OCSSPs are, further, obliged to (i.) make best efforts, by employing (ii.) high industry standards of professional diligence to ensure the unavailability of specific works to the public, for which (iii.) rightsholders have provided the service with relevant and necessary information.

First, again, OCSSPs must make best efforts while the scope of this term is unclear. Consequently, we must proceed on a case by case basis employing the tier system to assess which measures are proportionate to expect from small start-ups and which, on the contrary, must be undertaken

550 Ibid. 551 Some industries even stated to prefer filtering to licensing in the first place. See KELLER, Paul. Article 17 stakeholder dialogue (day 2): Filters, not licenses! International Communia Association [online]. publikováno 11. 11. 2019 [vid. 28. 5. 2020]. 552 See 5:00 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license?, op. cit. 553 Ibid., see 1:09:00. 554 CABRERA BLÁZQUEZ, Francisco Javier et al. The legal framework for video-sharing platforms [online]. Štrasburk: European Audiovisual Observatory, 2018, s. 92 [vid. 15. 5. 2020]. 555 HUSOVEC; QUINTAIS, op. cit., s. 4. 556 Unless OCSSPs could utilize some kind of pan-European license, granted authorizations are regionally restricted. 557 SENFTLEBEN, op. cit., s. 3-4.

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by the most significant services. Further guidance is also offered by Art 17 (5), which provides that in assessing best efforts, we must consider the availability of suitable and effective tools and their cost. Setftleben, however, warns that this might lead to industry seeking to minimize cost by employing cheap solutions, which might lead to excessive content blocking.558

The second criterium seems to inevitably rush towards the usage of automated filtering tools to ensure the unavailability of works protected by copyright.559 However, much has been discussed on the point of algorithmic justice and automated filtering tools.560 Consequently, we must uphold that general monitoring obligation is incompatible with relevant case law and encroaches upon fundamental rights.561

Moreover, the Art 15 of E-Commerce Directive is applied due to reference in Art 17 (8) and, thus, OCSSPs cannot be obliged to general monitoring.562 The question only remains, what obligations would amount to general monitoring obligation. Further, we must note, that lawmakers attempted to steer away from general monitoring prohibition by stating: “ensure the unavailability of specific works.” This neutral language, however, in practice, moves towards automated tools.563

Third, to activate the preventive and removal obligation, rightsholders must be active themselves and provide OCSSPs with relevant and necessary information. Although it might seem intuitive that OCSSPs are not liable as long as they did not receive the relevant information,564 such construction is incorrect. OCSSPs are obliged under Art 17 (1) to seek authorization, and only if they fail to do so, they may be protected by escape route through Art 17 (4) by fulfilling the cumulative criteria as explained above. Therefore, OCSSPs cannot just passively await rightsholders to provide the information, but they must also seek authorization themselves.

In conclusion, we must first assess the best efforts on a case by case basis to determine how should any technological measure be undertaken. Second, we must seek to avoid a general monitoring obligation. As Halliday notes, OCSSP could be obliged to search for specific content, which they would filter out of all uploaded works.565 Future case-law, however, shall address the point of algorithmic copyright enforcement, which is not possible to cover in the limits of this thesis sufficiently. Third, removal and preventive obligations are triggered only upon the rightsholder providing necessary and relevant information.

558 SENFTLEBEN, op. cit., s. 5. 559 Ibid., s. 5. 560 For example see DYMITRUK, Maria. The Right to a Fair Trial in Automated Civil Proceedings. Masaryk University Journal of Law and Technology [online]. 2019, roč. 13, č. 1 [vid. 13. 5. 2020]; FROSIO, Giancarlo. Algorithmic Enforcement Online. In: TORREMANS, Paul (ed.). Intellectual Property and Human Rights [online]. 4. vyd. Kluwer Law International, 2020 [vid. 30. 5. 2020]; POLČÁK, Radim. Procedural and Institutional Backing of Transparency in Algorithmic Processing of Rights. Masaryk University Journal of Law and Technology [online]. 2019, roč. 13, č. 2; TÓTH, Andrea Katalin. Algorithmic Copyright Enforcement and AI: Issues and Potential Solutions through the Lens of Text and Data Mining. Masaryk University Journal of Law and Technology [online]. 2019, roč. 13, č. 2; WOLFE, Alan. Algorithmic Justice. Cardozo Law Review. 1990, roč. 11; Alternatively on the problem of content moderation see GILLESPIE, Tarleton. Custodians of the internet: platforms, content moderation, and the hidden decisions that shape social media. New Haven: Yale University Press, 2018. 561 See HUSOVEC, 2017, op. cit., s. 122-137; Also SENFTLEBEN, op. cit., s. 6-8. 562 HUSOVEC, 2017, op. cit., s. 120-121. 563 SENFTLEBEN, op. cit., s. 5. 564 See CMO represenative making this point at 39:00 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license?, op. cit. 565 HALLIDAY, op. cit., s. 43.

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Acting expeditiously Further, Art 17 (4) introduces the obligation to act expeditiously upon receiving notice. Similarly to the obligation under Art 14 of the E-Commerce Directive, we must note that acting expeditiously can be observed either from the perspective of the rightsholder or from the perspective of OCSSPs. Both perceptions are relevant, however, the timeframe might substantially differ.566 Again we must consider this condition in light of Art 17 (5). Thus, small OCSSPs are not assumed to have sufficient staff to react, possibly even within days. Big OCSSPs, on the other hand, are expected to have sufficient system in place to ensure a prompt reaction. Thus their timescale must be perceived in a much shorter period.

Acts falling outside Article 17 (2) Last but not least, we must consider the situation of the user performing unauthorized commercial communication to the public and its consequences for the OCSSPs. First, OCSSP might not be covered by an authorization for their acts of communication to the public, and, thus, their liability would be subject to Art 17 (4). Second, however, OCSSPs could be covered by an authorization for own acts of communication to the public, which, by its nature, cannot extend under Art 17 (2) to commercial acts of its users. Husovec and Quintais present for these situations two scenarios with substantial impacts on liability.567

The first scenario sees users as the primarily responsible party for their commercial acts of communication to the public. OCSSPs are absolved of any liability as authorization covers their acts. However, provided such application, OCSSPs, thus, lack any incentives to remove and prevent the reappearance of infringing content per Art 17 (4). Consequently, infringing acts outside Art 17 (2) trigger consequences only for users, and OCSSPs can be targeted only under the injunction framework.568

The second scenario presents the situation of users still being primarily responsible parties to obtain authorization. However, OCSSPs still need to fulfill requirements under Art 17 (4). Consequently, if OCSSPs fail to remove and prevent the reappearance of content, they could be held liable as they satisfied only the requirement to make the best efforts to obtain the license.569 Arguably, such reading is precluded by the first sentence of Art 17 (4) limiting its application to situations when OCSSPs fail to obtain authorization. Nonetheless, such reading incentives OCSSPs to remove the infringing content and is more aligned with the general aims of Art 17 570

In conclusion, there is a possibility that OCSSPs could still be held liable despite their authorization if they fail to perform their duties under Art 17 (4). Consequently, we can identify potential friction open to judicial intervention and interpretation.

5.2 Changes to Video Game Streaming Platforms’ Obligations In Section 4, we have addressed several points concerning video game streaming services. We shall follow a similar structure, and, thus, analyze (i.) the communication to the public of video games and their elements under the DSM Directive, (ii.) license agreements and new authorization possibilities,

566 POLČÁK et al., 2018, op. cit., s. 83-90. 567 HUSOVEC; QUINTAIS, op. cit., s. 14. 568 Ibid., s. 14. 569 Ibid. 570 HUSOVEC; QUINTAIS, op. cit., s. 5.

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and (iii.) OCSSPs’ liability for unauthorized communication to the public. We shall, however, avoid injunctive liability framework, which applicability remains untouched by the DSM Directive.571

5.2.1 Use of Work Protected by Copyright In Section 4.1, we concluded that video streaming equals communication to the public with a set of exceptions depending on the availability of the video game. Exceptions, however, were based on relevant case law on the right of communication to the public under the InfoSoc Directive. Now we are moving towards different right of communication to the public, and we must question the applicability of the previous case law.572

First, we might consider communication to the public within Art 17 (1) as lex specialis and, thus, we could apply previous relevant case law. Consequently, our conclusion of non-communication of F2P video games due to lack of deliberate intervention and the new public is still valid. Both the users and video game streaming services would not perform an act of communication to the public when F2P games were webcasted.

Second, we must consider communication to the public under Art 17 (1) as sui generis communication. Necessarily, thus, its scope would need to be clarified for us to conclude that F2P games are not communicated. We, however, for purposes of our thesis, assume that CJEU would apply rules analogously, and F2P games would not be communicated to the public. If, however, Court rules otherwise, we might end up with an ironic situation that users do not communicate F2P games to the public under the InfoSoc Directive, while the OCSSPs do.

Whichever of options applies, we move towards a clear situation of video game streaming platforms performing acts of communication. Previously, we could arrive at such reading only employing the logic of The Pirate Bay ruling.573 Subsequently, rightsholders appear in a clearer situation to enforce their intellectual property.

5.2.2 Authorization Second, we shall analyze the new authorization obligations and options available to video game streaming platforms. We shall proceed by exploring, first, specific authorization schemes as introduced in Section 5.1.2 and analyze their possible application in the video game streaming industry. Second, we must consider the license merger on video game streaming platforms.

Licensing Issues National lawmakers may leave authorization schemes up to industry. Video game streaming platforms, thus, could rely exclusively on direct licensing or voluntary licensing alternatives. Alternatively, the national implementation might opt for collective licensing with an extended effect. For the remaining schemes of mandatory collective licensing, statutory license, or hybrid licensing, we could not identify any substantial issues concerning video game licensing and, therefore, our conclusions above in Section 5.2 uphold.

First, we shall consider the direct licensing approach in relation to the best efforts to obtain authorization under Art 17 (4) (a). Interestingly, we must note the tendency presented by Twitch. Its representative did claim that considering the best efforts to gain authorization, approaching the most

571 42:30 Article 17: How to implement new rules for online platforms? First Panel, General issues: What is it? And who is the target? In: YouTube [online]. 17. 6. 2019 [cit. 7. 5. 2020]. 572 HUSOVEC, QUINTAIS, op. cit. s. 10. 573 See Para 30 et seq. Judgment of the CJEU, The Pirate Bay.

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significant shareholders in the market suffices.574 We must, however, argue that the largest video game streaming service in the world should perform more than that to suffice the criterium. We argue this point on two grounds.

First, the video game market presents a significantly smaller scale market with much fewer stakeholders compared to for example, the music industry.575 Consequently, any OCSSPs in such industry has much fewer individual actors to approach and bargain the license with.

Second, the identification of the rightsholders in the case of video games is much easier compared to other industries. Categories of video offered on Twitch correspond to video game titles, and to get listed, Twitch must approve or add itself the title to the list.576 Thus, Twitch is aware of specific video games on its platform. Simply accessing games’ webpage, moreover, in the majority of cases guides the OCSSPs to its rightsholder, including contacts.

Subsequently, Twitch and other video game streaming services must seek to identify and approach a broader range of rightsholders to satisfy the requirement of best efforts under Art 17 (4) (a).

Nonetheless, direct licensing does offer the advantage of contractual freedom. Consequently, video game streaming platforms wishing to safeguard their business and users, could approach sufficient share of rightsholders and obtain authorization for own acts of communication to the public extending to non-commercial exploitation by users. Contractual freedom, moreover, would allow video game streaming services also to negotiate commercial exploitation for their services, thus, covering all user activity. Consequently, not only streamers but the service itself would be safeguarded against sudden turns in industry practices.

If we were to consider voluntary collective licensing, we must note the lack of presence of any video game industry CMO in Europe. Consequently, unless the video game industry develops CMOs in the aftermath of the DSM Directive, a voluntary licensing scheme is not employable.

CMOs presence also has its impacts on the availability of collective licensing with extended effect. Art 12 requires the CMO to be sufficiently representative. Therefore, there is little space for the application of this scheme in the current environment of no CMO altogether.

Considering the possible emergence of CMOs for the video game sector, moreover, does seem unlikely. As Halliday notes, rightsholders in the industry can maintain direct relationships with their licensees.577 First, end users often need to play video games through services such as Steam or Battle Net.578 Second, the industry can enforce its rights effectively.579

Further, we must consider possible reliance on users’ licenses. As noted above, if the appropriate license covers acts of users, then OCSSPs are extended such license for their necessary acts. However, Rec 69 limits this rule only to situations of rightsholders' explicit statements. Halliday, on the contrary,

574 See 36:00 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license?, op. cit. 575 HALLIDAY, op. cit., s. 30. 576 See 2 Ways to Make Your Indie Game More Visible on Twitch. Medium [online] publikováno 13. 12. 2016 [vid. 30. 5. 2020]. 577 HALLIDAY, op. cit., s. 32-33. 578 Ibid., s. 32. 579 Ibid., s. 33.

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claims that Rec 69 is non-binding and argues in light of Soulier in favor of implied licensing.580 We, nonetheless, argue against such reading.

Furthermore, subject to our analysis of license terms in Section 4.2, we identified several tendencies. First, rightsholders often allow non-commercial use of their video games. Second, monetization via streaming websites is often considered commercial exploitation. Third, some rightsholders allow monetization via certain services, most commonly YouTube, their formulation, however, often might not extend to Twitch or other services. Fourth, some rightsholders, on the contrary, consider monetization via streaming websites non-commercial exploitation.581

Considering the options of the extended license, thus, there are several problems to unpack. Video games are, in legal circumstances, obtained under license. These licenses, as a general rule, do not prohibit non-commercial exploitation of video games. Consequently, users do not need a license extended from OCSSPs under Art 17 (2) for their non-commercial video game streaming. On the contrary, OCSSPs can rely on such a license only if explicitly stated. Consequently, video game streaming services should not generally rely on the extended license as license terms mostly contain only this general rule.

On the other hand, we have a category of video games that do not mind non-commercial exploitation on specific platforms.582 We argue that for video games falling under this category, video game streaming services might be able to rely on the extended license if the provision is sufficiently explicit.

Regarding commercial exploitation, we have a category of rightsholders who do not consider streaming a commercial use. Thus, the abovementioned limitations of explicitness would apply. Moreover, even if the rightsholder provides only general commercial use prohibition but also exceptions for specific sites, we must consider this exception to include also non-commercial uses on these platforms. Consequently, such a license could also be extended to OCSSPs.

In conclusion, however, we must note that license expansion is possible strictly on a case by case basis as we do not accept the notion of implied license. Consequently, reliance on users’ authorization does not seem wise.

Furthermore, the expansion of users’ license would likely not suffice the requirement of the best efforts to obtain authorization under Art 17 (4) (a). On the contrary, such reliance does not amount to any efforts as OCSSPs would not perform any actions. As expressly noted in Rec 69, there should be no presumption in favor of OCSSPs that their users cleared necessary rights. Consequently, in case of possible issues, or potentially illegally obtained video games on their platforms, video game streaming platforms would not be able to employ the second escape route through Art 17 (4).

License Merger For instances where video game streaming platforms opt to cover license fees for its users, we must further ask to which user conduct does license under Art 17 (2) extend. To this end, we must consider what the subjective criterium of acts on a commercial basis constitutes. Further, we shall seek what activity of video game streaming services generates significant revenues.

580 HALLIDAY, op. cit., s. 27. 581 See Section 4.2. 582 Policy on posting copyrighted 2K material. 2K Support, op. cit.

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In application on our video game streaming platforms, we can identify two critical elements to determine the intent. First, we must find out whether a particular streamer entered the privileged relationship with the platform, thus contractually regulating how is the platform’s revenue shared with its user. Second, in the absence of a privileged relationship, we must seek monetization elements via other services such as PayPal links. Identifying the intent, thus, is no complicated task.

Observing the significant revenues, we would have to obtain specific figures on streamer’s revenue. We would need to further answer what amount constitutes significant revenues. However, as we can establish intent, we do not need to seek exact numbers.

While Halliday correctly notes that we can determine significant revenue only after content had been communicated to the public, his conclusion that prior authorization is impossible is incorrect.583 Video game stream can only generate revenues if streamers intents so. Streamers must take active steps to gain the profit either by entering the privileged relationship or by sharing a monetization link to other services.

We argue that platform design does not allow generating any revenue unless users act on a commercial basis. Even to enter the privileged relationship, streamers must showcase an economic potential in their activity.584 Consequently, we can conclude that users’ actions cannot generate significant revenues unless users act on a commercial basis. On the other hand, acting on a commercial basis does not need to result in significant revenues, thus, even a mere PayPal link without any donations would qualify.

According to Art 17 (2), thus, OCSSPs' own authorization does not extend to commercial activities. Subject to our license terms analysis in Section 4.2, we can conclude that a significant share of the video game industry does not grant streamers rights of commercial exploitation either.

Consequently, the problematic unauthorized video game streaming remains the problem as neither currently nor under DSM Directive are streamers’ commercial activities covered. We must, however, note that some video game companies do grant monetization authorization, and some even do not consider monetization a commercial activity.585 Possibly, thus, the video game streaming industry could carry unaffected by the DSM Directive if the rightsholders were to continue not enforcing their rights against streamers and video game streaming platforms.

In regard to streamers’ communication to the public, subsequently, our analysis above in Section 4.1 applies since it constitutes a communication to the public under Art 3 of InfoSoc Directive.

We must, further, note a particular claim made in an academics debate by the representative of Twitch, stating that if streamers’ livelihood depends on their creative activity, it is necessary to put a simple authorization scheme for OCSSPs to obtain authorization.586 However, that is a misunderstanding of the merge of licenses, as presented above. Authorization obtained by Twitch covers only non-commercial acts of its users. Consequently, streamers, whose livelihood depends on their activity, still fall outside OCSSPs’ authorization since it constitutes a commercial activity.

583 HALLIDAY, op. cit., s. 19. 584 By showcasing regular streaming activity generating significant advertising revenue for platform from its viewers. See Joining the Affiliate Program. Twitch Help [online]. [vid. 24. 3. 2020]. 585 In detail see Section 4.2. 586 See 1:09:00 Article 17: How to implement new rules for online platforms? Second Panel, Licensing modalities: What and how to license?, op. cit.

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5.2.3 Liability Last but not least, we must analyze possible interactions under Art 17 (4). We have sufficiently covered let (a) in Section 5.2.2. Therefore, we shall focus on the preventive and removal obligations under (b) and (c). Specifically, we shall note the problematic implications of rightsholders providing OCSSPs with relevant and necessary information.

As we have noted above, preventive and removal obligations are triggered once the rightsholders provide OCSSPs with relevant and necessary information. However, as we have observed previously, the rightsholders in the video game industry rarely provide such information. This, mostly, relates to the fact that video game rightsholders trigger their rights only in situations of individual infringements, which not only violate their intellectual property rights but also harm the public image of the video game.587 The only rightsholder in the past who employed its right against all infringements was Nintendo in 2013.588 Arguably, however, the motive was not to remove infringing content but rather to gain monetization revenue.

Consequently, unless all rightsholders behaved as Nintendo seeking direct profit for their content via authorization fees and enforcing their right through direct liability, which is not unlikely, the entire industry might remain dormant. Instead of receiving notices triggering their obligations, video game streaming services might, in fact, operate as usual due to a lack of interest of rightsholders to enforce their rights.

Interestingly, we have seen Twitch representative proposing industry solution to standardize the provision of the relevant and necessary information. Namely, Twitch proposes to make a database of sort for rightsholders to register their works.589 Although this reminds of the US copyright registration system, we must attest that this is, indeed, construction of this obligation.590 However, we must urge the industry not to rely only on such a potential database when seeking authorization as it might not suffice Art 17 (4) (a). Nonetheless, if such a database is established, we might observe a lack of any video game rightsholders registering their works into the database.

Elaborating on the alternative scenario, radical changes to business might occur to video game streaming platforms. Insofar Twitch has not been challenged by preventive obligation even concerning one specific video game. Consequently, changes under the DSM Directive might also potentially bring a tidal wave of notices forcing the services to employ filtering rapidly. Consequently, these changes may severely impact their business.

Further, we must also highlight that so far, rightsholders have mostly used notice and takedown system to censor undesirable content based on copyright. We may provide examples of PewDiePie or Eroktic stroke for a harmful image. Moving on by serving notice, rightsholders would trigger not only removal but also a preventive obligation. Consequently, the industry is forced to decide where their interest lies and whether they genuinely wish to allow video streaming services, or instead whether they prefer to control their works. Suddenly, there would be no middle ground of enforcing while ignoring the rest, which would be a positive change.

587 Whether it might be innapropriate language or open criticism of product. See GOOD, op. cit.; HALL, op. cit. 588 COWAN, op. cit. 589 Ibid., see 11:30. 590 Under this system, to enforce their rights, rightsholders must first file copyrigth registration. See Registration. Copyright.gov [online]. [vid. 9. 6. 2020].

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After all, however, we must urge for an entirely different solution. In Section 4.2, we have identified several problems with license practices in the industry. Problems that translate from imperfect license agreements. Problems such as outdated lists of allowed monetization websites, limitations only to specific services, most commonly YouTube, which cannot extend to Twitch and other streaming services, or lack of any license at all.

Moving on, thus, we shall argue that the DSM Directive, in fact, presents the entire industry with a unique opportunity to revise their license practice towards users and, freshly, also towards OCSSPs. Should the industry choose to formulate a clear and well-formulated monetization exception, all potential problems for the industry fall. However, the rightsholder would lose ground for censoring undesirable content, which might hinder the license reform change.

In conclusion, it is necessary to revise these practices to fill out a regulative void that endangers the most vulnerable group. The group which consists of streamers and other content creators who invest their creativity and time and whose livelihood does stand on unstable groundwork. Group, which, due to imperfect licenses, does violate intellectual property despite the rightsholders being fine with it. Group, which might be sanctioned potentially even by penal law if their infringements are too successful.591

5.3 Implementation Recommendations In this Section, we shall focus on the future implementations of the DSM Directive and seek to formulate points of recommendations based on our analysis provided above.

European Commission launched stakeholders’ consultations of which we have currently seen six rounds. The 7th round was due to happen by the end of March 2020. However, due to the COVID 19 health crisis, it could not take place. The consultations with stakeholders are to produce guidelines for implementation, which were initially expected before summer 2020, thus leaving national lawmakers with roughly a year to work.592

The absence of guidelines in due time, however, has severe consequences. European Commission has not provided unifying voice urging member states to take consideration of certain aspects. Therefore, insofar, we have seen quite different approaches in national proposals. Moreover, we can see opening clauses leaving further implementations to different forms of law not following parliamentary scrutiny. That does, however, seem possibly harmful as Art 17 might severely impact fundamental rights.593 Furthermore, we must also note that in such a situation, early national drafts might inspire the general tendency towards bad practices.594

Consequently, we aim to summarize several points of recommendations of what to consider when implementing Art 17. Our recommendations, however, should also be consulted to the Commission’s guidelines, if possible. Moreover, our analysis limits itself to Art 17 (1)–(4), which were studied

591 Such as BARTKOVSKÝ, 2020, op. cit. 592 See 1:15:30 Video recording from last weeks COMMUNIA salon. International Communia Association [online]. publikováno 28. 5. 2020 [vid. 1. 6. 2020]. 593 Ibid. 594 Such as not implementing exceptions under Art 17 (4) although European Commision provided in Parlamientary explenation guidance that referal to existing exception and limitations does not suffice. See Ibid., 1:05:30.

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in detail above. We aim to cover these provisions since much of the current discussion focuses on problems of safeguarding users’ rights and overblocking.595

5.3.1 Current State of Affairs Currently, as of May 2020, we have seen national drafts in six member states. However, only five of them included Art 17. Thus, we shall not discuss the German draft any further. French and Dutch drafts, on the other hand, are even already discussed in national parliaments. For our purposes, we decided to group French, Dutch, and Belgian drafts in one group as they tend to follow the wording and structure of Art 17 strictly. Croatian and Hungarian drafts, on the other hand, opt for more creative approaches, and they shall be discussed individually.596

France, Netherlands, Belgium First, we shall note that all states opt to implement Art 17 in more provisions, thus avoiding possible pitfalls of implementing Art 17 only for copyright but not for other subject matter such as neighboring rights. The other common aspect is that these states chose to follow the structure and wording of Art 17. Thus, these implementations do not explain whether the right of communication to the public under Art 17 (1) constitutes lex specialis or sui generis communication to the public. Neither states provide guidance on the definition of OCSSPs or conditions for the safe harbor under Art 17 (4).597

Interestingly, Dutch and Belgian proposals contain open clauses in expectation of further needs of the implementation. Consequently, no parliamentary scrutiny would be required to adapt drafts. However, such an approach might be problematic for safeguarding fundamental rights.598

Regarding issues raised above, we must, further note, that these states do not specify an authorization scheme. Consequently, OCSSPs must rely on direct or voluntary collective licensing. As we have explained above, however, such an approach might prove problematic.

Croatia Croatia drafted its implementation into four articles and provided much further guidance. We shall thus, follow the structure of the Croatian draft.

First, Croatia explicitly provided that the communication to the public under Art 17 (1) constitutes an exclusive author’s right under the relevant right of communication to the public.599 Consequently, Croatia does constitute this right as subject to the InfoSoc Directive or possibly as the lex specialis right. We, however, cannot be certain whether such right is confined by communication to the public under Art 3 of InfoSoc Directive or rather constitutes sui generis right. Consequently, such implementation could have far-reaching consequences on the limitations of communication to the public and application of existing case law.600

595 For one of recent contributions adressing these issues see the german draft See KELLER, Paul. A better way to implement Article 17, New German proposal to avoid overblocking. International Communia Association [online]. publikováno 15. 4. 2020 [vid. 2. 6. 2020]. 596 For current stage of implementation See DSM Directive Implementation Tracker. International Communia Association [online]. Notion [vid. 28. 5. 2020]. 597 See 1:21:15 Video recording from last weeks COMMUNIA salon. International Communia Association [online]. publikováno 28. 5. 2020 [vid. 1. 6. 2020]. 598 Ibid., 32:00 et seq. 599 Art 43 (1) Chorvatská republika, návrh implementačního zákona: Nacrt Prijedloga Zakona o Autorskom Pravu I Srodnim Pravima [online]. [vid. 1. 6. 2020]. (strojový překlad) 600 As disscussed in depth by Husovec and Quitais. See HUSOVEC; QUINTAIS, op. cit., s. 5-11.

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Second, Croatia provided further guidance from Directive related to the definition of OCSSPs.601 Guidance, however, contains only examples provided in the Directive. Croatian legislator, thus, did not attempt to find more examples and possibly further clarify the definition.

Third, the draft specifies the form of authorization to be consent in writing or another formal manner.602 Consequently, Croatia also limits the authorization schemes to direct licensing or voluntary collective licensing.603 Provision, besides, limits possible forms of authorization.

Fourth, the authorization contract shall be fair and maintain a reasonable balance between authors and OCSSPs and should be subject to appropriate compensation.604 Croatia thus expands the legislative text by subjecting the authorization to further conditions that shall safeguard the rights of authors.

Fifth, interestingly, best efforts were translated into the condition of doing everything within OCSSPs’ power.605 As we have discussed above, such change might lead to substantially different application of Art 17 (4).

Sixth, the draft adopts Rec 62 wording of non-availability of Art 17 (4) escape route to piracy services.606 We note this as a correct translation of this recital as opposed to incorrect reading of excluding piracy websites altogether from the category of OCSSPs.607 Consequently, piracy websites are considered OCSSPs and do perform an act of communication to the public.

In conclusion, we might note several problems in the Croatian draft.608 On the other hand, Croatia opted to safeguard the fair balance of authorization contracts explicitly. Such provision, and especially subsequent activity, would help to prevent abuse of dominant position, which we might expect in some industries. The structure of provision and their content is mostly in line with Art 17 and, consequently, may serve as an inspiration to other national drafters.

Hungary Hungarian draft also follows the structure of Art 17 while implementing some creative solutions.

First, notably, the Hungarian draft presents a different authorization scheme. Namely, the draft prescribes authorization via mandatory collective licensing.609 Consequently, industries without CMO presence must develop organizations for this purpose.

Second, implementing Art 17 (2) draft creates a burden of proof on OCSSPs’ side for cases of doubt about the existence of appropriate authorization. Even more interestingly, implementation specifies that license covers non-commercial use and non-commercial revenue.610 Such wording implies a category of non-commercial use generating non-significant revenue. Such wording must be interpreted in the light of Rec 69. Thus, an extended license does not cover content shared with profit-

601 Art 43 (3) Chorvatská republika, návrh implementačního zákona. 602 Ibid., Art 43 (4). 603 This notion is further supported by Art 43 (6). 604 Ibid., Art 43 (5). 605 Ibid., Art 44 (1) (a). 606 Ibid., Art 44 (6). 607 See 56:30 Article 17: How to implement new rules for online platforms? First Panel, General issues: What is it? And who is the target?, op. cit. 608 For example improper implementation of Art 17 (7) omitting some of exceptions and limitations. 609 §57/B(1) Maďarsko, návrh implementačního zákona: Törvénya Szerzői Jogról [online]. [vid. 8. 6. 2020]. (strojový překlad) 610 Ibid., §57/B(2).

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making purposes or content which was shared without profit-making purposes that generate significant revenues.

Third, best efforts under Art 17 (4) were translated into two variations. First, OCSSPs must perform all efforts to obtain authorization. Second, OCSSPs must make everything within their power to ensure unavailability. Third, OCSSPs must make all efforts to remove notified works.611 Consequently, the Hungarian draft shifts best efforts towards all efforts standard. Moreover, it arguably, dependent on the accuracy of machine translation, creates two different standards, further blurring the dividing line.

Most notably, thus, Hungary opted to prescribe a specific authorization scheme, which might prove problematic to industries with underdeveloped CMOs presence. Consequently, any national drafter should proceed with caution before implementing an identic obligation.

5.3.2 Use of Work Protected by Copyright Any national legislator should first attempt to understand what communication to the public under Art 17 (1) does mean, and, subsequently, avoid formulations going in the wrong direction. Potentially, lawmakers could create a situation under which communication to the public would be subjected to restraints incompatible with Art 17 (1) interpretation.

Husovec and Quintais introduced several possible perceptions of communication to the public under Art 17 (1). We have, thus, identified the approach of lex specialis or sui generis communication to be workable solutions.612 However, in the Croatian draft, we have seen an attempt to subject the t right under communication to the public within InfoSoc Directive or make it lex specialis right. This might, however, prove problematic.

Subjecting the communication under Art 17 (1) to limitations of InfoSoc Directive might be perceived either as subject to the three-step test under InfoSoc Directive or as an extension of InfoSoc right and not subject to its restraints. The second option presents the workable lex specialis option. This interpretation is, further, relevant for Art 17 (4) as , under the first option, the liability exemption mechanism would be subjected to restraints of Art 5 (5) of InfoSoc Directive.613

Consequently, unfortunate wording could subject the communication under Art 17 (1) to incompatible restrictions. We would, thus, recommend national drafters to follow the original wording without the reference to already implemented right under the InfoSoc Directive. Similarly, we urge national drafters to provide communication to the public under Art 17 (1) in a separate provision and not attempt to incorporate the wording under the current provision on the right of communication to the public.614 Thus, subsequent law is ready for any possible interpretation of the CJEU.

On another note, we must consider whether communication to the public under Art 17 (1) constitutes the author’s exclusive right. Janssens, for example, called it a hybrid.615 Husovec and Quintais, on the other hand, incline to qualify it as exclusive right while noting several possible

611 Ibid., §57/D(1). 612 HUSOVEC; QUINTAIS, op. cit., s. 5-11. 613 Ibid., s. 7. 614 44:40 Article 17: How to implement new rules for online platforms? First Panel, General issues: What is it? And who is the target?, op. cit. 615 Ibid., 12:10.

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objections.616 This classification, however, could impact available remedies such as damages or injunctions.617 Consequently, national drafters should be aware of these differences and carefully consider the construction of this right. We would, moreover, recommend steering towards perception as exclusive right in alignment with Husovec and Quintais.

Another recommendation should focus on differentiating between works protected by copyright and other subject matter. Implementing Art 17 only into copyright law is, thus, not sufficient as it must also cover neighboring rights.618 Consequently, we urge national drafters to be mindful of other provisions and structure of respective laws and not omit other protected subject matter out of scope.

The last recommendation addresses the qualification of OCSSPs. The list provided in recitals is helpful, and its implementation, such as in the Croatian draft, is helpful to smaller local OCSSPs to consider whether they qualify. To this end, national drafters could even consider providing more examples to help further navigate the landscape. On the other hand, providing too many examples could prove counterproductive.619

On the contrary, however, national drafters should be careful in implementing the piracy exception from Rec 62. The scope of that formulation does not remove piracy services from the category of OCSSPs but instead aims to remove such services from being eligible to apply escape route under Art 17 (4).620 The consequence of inverted implementation could lead to an ironic situation of attempting to apply The Pirate Bay ruling to determine whether piracy websites even perform communication to the public, which is in direct contrast with the aim of the DSM Directive.621

5.3.3 Authorization Further, we must also explore licensing modalities under Art 17 (1) and (2). We must be mindful of several facts. First, in some sectors, we can identify minimal or no presence of CMOs.622 Second, we must highlight that commercial users’ exploitation is not covered by an extended license under Art 17 (2).

We have introduced several authorization schemes. However, we have also noted that direct licensing, voluntary collective licensing, and collective licensing with extended effect are problematic. These schemes might lead to geo-blocking and most likely will not cover commercial acts of users. Moreover, OCSSPs might not provide their users with sufficient information on what catalog they cover.

Consequently, if national drafters choose these options, we recommend an OCSSPs’ obligation to provide transparent information on catalog their licenses cover. Similarly, OCSSPs themselves should seek to cover commercial acts of users also in consideration of their potential liability, as we discuss in Section 5.2.3. Legal obligation seeking to cover commercial activity, thus, at least for most significant platforms, might shift the balance towards user rights.

616 HUSOVEC; QUINTAIS, op. cit., s. 9, 15. 617 36:00 Article 17: How to implement new rules for online platforms? First Panel, General issues: What is it? And who is the target?, op. cit. 618 Ibid., 47:00. 619 CJEU could disprove some of the national examples. Consequently, legal certainty which later turns out wrong might be more harmful. See CHAVANNES, Remy. The Dutch DSM copyright transposition bill: safety first (up to a point) – Part 2. Kluwer Copyright Blog [online]. publikováno 11. 6. 2020 [vid. 23. 6. 2020]. 620 Ibid., 56:30. 621 Para 47 Judgment of the CJEU, The Pirate Bay. 622 Such as the video game industry.

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The geo-blocking problem, however, likely will not be answered by voluntary authorization schemes. In a landscape of 27 voluntary authorization, OCSSPs are going to have a difficult time obtaining a catalog covering entire Europe. Moreover, their seeking authorization necessarily is going to be subject to economic considerations, thus, not investing in the authorization for markets without profit to cover authorization.623 Consequently, we argue in favor of the Hungarian approach or other authorization schemes.

We perceive especially the statutory license as a solution as it provides an effective approach to allow OCSSPs’ operation while safeguarding the rights of users and authors. Consequently, OCSSPs would have a more straightforward way towards authorization and operation across member states without necessary geo-blocking. Moreover, such an approach safeguards users’ rights as it limits possibilities for employment of measures under Art 17 (4).624

Last but not least, we recommend considering similar provisions to the Croatian draft safeguarding fair contract maintaining a reasonable balance between authors and OCSSPs subjected to appropriate compensation.625

5.3.4 Liability Regarding the rules on liability, we urge national drafters to consider the best efforts criterium under Art 17 (4) and translate equal rule. Otherwise, national laws could introduce different OCSSPs’ obligations for each member state.

We have, moreover, observed current national drafts following the structure of Art 17 (4) closely, which we perceive as good practice. Nonetheless, to safeguard user rights, we recommend national drafters to consider proposals and analysis of other academics.626

5.4 Interim Conclusion In this Section we shifted our focus towards the regulation under the DSM Directive, which we have introduced in Section 4.1. We have focused on selected legal issues of communication to the public, authorization, and liability in the context of the DSM Directive. Compared to Section 4.1, we have focused predominantly on platforms that are addressees of the new legal obligations. We have not studied Art 17 (6)-(10) that prescribe obligations to safeguard user rights.

Analyzing the communication to the public under Art 17 (1), we established the unclear nature of such communication.627 First, we established that under Art 17 (1), OCSSPs communicate to the public. Second, it is unclear whether it shall be understood as lex specialis or sui generis communication.628 Third, it is unclear whether communication to the public under Art 17 (1) constitutes an exclusive authors’ right or something entirely else.629 Last but not least, we studied the new category of OCSSPs, which also includes the video game streaming platforms.

Next, we focused on authorization issues. Under Art 17 (1), OCSSPs are obliged to seek authorization from rightsholders for their own acts of communication to the public. We identified several possible

623 SENFTLEBEN, op. cit., s. 3-5. 624 HUSOVEC; QUINTAIS, op. cit., s. 24. 625 Ibid., Art 43 (5). 626 HALLIDAY, op. cit.; KELLER, 2020, op. cit. 627 HUSOVEC; QUINTAIS, op. cit., s. 5-8. 628 Ibid., s. 8 et seq. 629 Ibid., s. 15.

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authorization schemes, however, only some of them presented workable solutions.630 Moreover, we studied the license merger under Art 17 (2), concluding the exclusion of acts on a commercial basis or activity generating significant revenues being excluded from license merger.631

The last part of Section 5.1, introduced the new mitigation mechanism under Art 17 (4). Nonetheless, we have especially noted possible issue for OCSSPs who obtain authorization for own acts of communication to the public. Specifically, we noted that, possibly, they could still be obliged to perform best efforts under Art 17 (4) (b) and (c) as obtaining authorization fulfills only Art 17 (4) (a).632 Subsequently, even obtaining a license could not protect OCSSPs from liability for unauthorized users’ communications to the public.

Next, we shifted our focus towards video game streaming platforms and changes to their obligations. These changes, however, shall be understood in comparison to Section 4, which presents the current legal regime.

In regard to the communication to the public, we noted the problematic application of existing case law to communication to the public under Art 17 (1) due to uncertain nature.633

On authorization issues, we highlighted the current license practice, which lead to the conclusion that OCSSPs cannot rely on rightsholders to provide sufficient authorization to users.634 We also concluded the unavailability of implied license to OCSSPs. Subsequently, we argue in favor of collective or statutory licensing, which provides platforms and users with sufficient legal titles. Nonetheless, the insofar problematic commercial exploitation cannot be covered by neither of these options.635 In conclusion, thus, we argue that the DSM Directive, most of all, presents rightsholders with an opportunity to reevaluate their license agreements and provide the industry with sufficient legal ground for video game streaming beneficial to all parties involved. On the other hand, rightsholders could opt to carry on with the current, problematic, practice.

In the last part of Section 5.2, we focused on the changes to the liability regime. We, specifically, highlighted the lack of notices under the current regime. Subsequently, we question whether the new rules under the DSM Directive shall truly change the current practice.

Based on our analysis of Art 17 of the DSM Directive and video game streaming industry, we have formulated points of recommendation for national implementation in Section 5.3. First, lawmakers should understand that communication to the public under Art 17 (1) constitutes either lex specialis or sui generis communication and avoid subjecting the rights under Art 17 (1) to incompatible restrictions.636 Moreover, it is yet unclear whether we should perceive communication to the public under Art 17 (1) as exclusive right or as copyright exception.637 We also urged drafters to implement Art 17 not only to copyright but also to neighboring rights.638 National drafters should also be aware of the OCSSP definition and might cautiously attempt to provide further guidance.

630 Ibid., s. 17. 631 HALLIDAY, op. cit., s. 19-20. 632 HUSOVEC; QUINTAIS, op. cit., s. 14. 633 Ibid., s. 10. 634 In detail see Section 4.2. 635 See Section 5.2.2. 636 HUSOVEC; QUINTAIS, op. cit., s. 7. 637 Ibid., 15. 638 47:00 Article 17: How to implement new rules for online platforms? First Panel, General issues: What is it? And who is the target?, op. cit.

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Second, we have considered authorization schemes. In alignment with the Hungarian draft, we argued against voluntary licensing schemes, which might heavily restrict the availability of content online and lead to geo-blocking.639 On the other hand, we favor mandatory collective licensing, or even the statutory license, which could genuinely provide sufficient entitlement for web 2.0. Drafters, however, should also consider whether not to extend the platform’s license also to acts outside of Art 17 (2).

Last but not least, we have warned caution in transposing the best efforts requirement under Art 17 (4) as different translations might set different legal standards.640 Subsequently, national drafters should seek to follow the original best efforts as closely as possible.

639 SENFTLEBEN, op. cit., s. 4. 640 ROSATI, 2019b, op. cit.

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6. Case Study: Twitch We shall dedicate the last Section to a particular video game streaming service, Twitch. Twitch shall represent industry practices in a focused environment and allow us insight into legal problems discussed in the theory above. Moreover, based on our analysis, we shall formulate general conclusions applicable to video game streaming platforms.

We are going to follow a similar structure to previous Sections, thus, first, recalling a conclusion on communication to the public and video game streaming as established in Section 4.1. Second, we shall recall the conclusion on authorization to communicate to the public as analyzed in Section 4.2. Third, we shall seek to identify liable parties to bear consequences of lack of authorization building upon the conclusion drawn in Section 4.3. Last but not least, we shall apply the shifting regime of DSM Directive to Twitch based on conclusions in Section 5.2.

6.1 Use of Work Protected by Copyright In Section 4.1, we have successfully established that webcast equals communication to the public. Moreover, as we did establish in Section 3, video games consist of a multitude of various elements such as computer code, audiovisual elements, and others. First, therefore, we shall recall how are these different video game elements communicated during the webcast as analyzed in Section 4.2. Moreover, we shall recall that we protect video games both as a whole and their individual elements in the sense of Nintendo v PC Box and BSA v Ministerstvo kultury.641

We have previously concluded that video game elements not requiring interaction allow communication to the public via webcast.642 Subsequently, we identified works protected by copyright communicated to the public via webcasting.

Furthermore, we must note the category of F2P games and their wide availability. In Section 4.1, we noted it might be challenging to conclude deliberate intervention and communication to the new public as these video games are widely accessible via the internet. Consequently, concluding deliberate intervention for webcasts without any audience may prove difficult for lack of deliberate intervention as the content is accessible to third parties even without the communication in question. Webcasts with the audience may still lack the criterium of the new public if the video game had been distributed via previous communication using the same technological means.

Last but not least, in the light of The Pirate Bay, we argued that even platforms such as Twitch might directly communicate works to the public.643 Subsequently, if such communication is unauthorized, Twitch is a direct perpetrator.

6.2 Authorization Next, we have analyzed the authorization issues in Section 4.2. Webcasts communicate at least some video game elements to the public, and potentially, depending on its qualification, its entirety. We, thus, must seek the legal title. However, as we have established in Section 4.2, relying on license terms may prove difficult due to inconsistent license practice, or outdated terms. License may also easily fall

641 Para 46 Judgment of the CJEU, BSA v Ministerstvo kultury; Para 23 Judgment of the CJEU, Nintendo v PC Box. 642 Such as audio elements, video elements except GUI or other elements such as literary elements, choreographies, scenarios, maps, or architecture. 643 Para 47 Judgment of the CJEU, The Pirate Bay.

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victim to legalese such as fan art or monetization solely via advertising. Consequently, we must recall that webcasting may often be based on uncertain legal grounds.

6.3 Liability In this Section, we shall apply findings from Section 4.3 to a specific business model. Therefore, we shall note the contractual terms between Twitch and its users and several notable practices that shall be determinant for the direct, indirect and injunctive liability and application of the safe harbor.

6.3.1 Contractual Terms We shall address the relationship between streamers and platform, regulated by Terms of Service, Community Guidelines, and Twitch affiliate agreements. This analysis leads to conclusions on the platform’s relationship to the content and any position of authority it may have towards the platform’s users.

Twitch’s Terms of Use state:

“if you submit, transmit, display, perform, post or store User Content using the Twitch Services, you grant Twitch and its sublicensees, to the furthest extent and for the maximum duration permitted by applicable law (…), an unrestricted, worldwide, irrevocable, fully sub-licenseable, nonexclusive, and royalty-free right to (a) use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content (…) in any form, format, media or media channels now known or later developed or discovered.”644

Twitch, subsequently claims license over content provided by its users in the broadest scope possible. Such license might, however, cross the threshold between own content and third-party content, possibly depriving Twitch of safe harbor protection. Depending on the jurisdiction, it might be observed as the adoption of content, thus, making it the platform’s own.645 Similarly, it might deprive Twitch of safe harbor protection due to acquiring constructive knowledge of content uploaded by its users.

Twitch further asks its users for warranties:

“You are solely responsible for your User Content and the consequences of posting or publishing it. You represent, and warrant that: (1) you are the creator and owner of the User Content or otherwise have sufficient rights and authority to grant the rights granted herein; (2) your User Content does not and will not (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right (…) Twitch reserves all rights and remedies against any users who breach these representations and warranties.”646

Twitch, thus, shifts the responsibility to users. We shall note, however, that even such users’ warrant would not safeguard safe harbor application if we can conclude breach of safe harbor rules. Art 9 and 10 follows the same logic prohibiting users from infringing intellectual property rights.647

644 Art 8 a) Terms of Service. Twitch.tv [online]. [vid. 27. 2. 2020]. 645 HUSOVEC, 2017, op. cit., s. 55-56. 646 Art 8 b) Terms of Service. Twitch.tv [online]. [vid. 27. 2. 2020]. 647 Ibid., Art 9 and 10.

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Twitch, further, explicitly regulates its right to claim remedies for users’ conduct from them. Subsequently, even if rightsholders seek action against Twitch, the platform could apply for a remedy from its users. Consequently, users are the end link endangered the most by imperfect market practice.

If we further inspect the Community Guidelines, we find an entire dedicated Section to intellectual property rights, stating:

“You should only share content on Twitch that you own, or that you are otherwise authorized to share on Twitch.”648

Following our analysis in Section 4, streamers should, therefore, seek authorization to communicate video game elements to the public. Twitch, however, supports this notion by giving a few examples of what streamers should be aware of altogether omitting the authorization to communicate work to the public except prohibiting playing pirated video games.649 We might, consequently, argue whether a reasonable operator should have been aware of the essence of video game webcasting being the right of communication to the public and instruct its users to seek appropriate authorization.650

Furthermore, we shall note the existence of the Twitch Affiliate Agreement to which any person wishing to monetize their content via platform must consent. Affiliate Agreement only regulates monetization schemes and becoming the affiliate. They reference Terms of Use regarding possible infringements; therefore, we shall apply the abovementioned.

We can, subsequently, conclude that streamers act on their discretion without any authority or direction of Twitch. The content they produce, however, is licensed to Twitch in the broadest possible scope. Such licensed content may, however, be perceived as adopted content. Similarly, it might contribute to the platform’s knowledge of infringing content.

6.3.2 Notable Practices Further, we must also note several Twitch practices that might have consequences on the attainability of safe harbor protection. In light of The Pirate Bay, they might also lead to the classification of infrastructure provision as an act of communication to the public.651

First, we must observe that video game streaming services operate with profit-making purposes. We have analyzed their operations in Section 2. For our purpose, we must highlight the advertising- driven revenue or subscription-based access to specific features.

Second, as highlighted above, Twitch claims broad license over user-generated content. There are, thus, two points of significance with possible contamination effect of passivity criterium. Twitch is effectively adopting users’ content and, consequently, makes it own content. Subsequently, Twitch may not qualify at all for safe harbor protection in jurisdictions such as Germany.652

648 Community Guidelines. Twitch [online]. [vid. 25. 5. 2020]. 649 Ibid. 650 Moreover, in the light of DSM Directive legislative procedure Twitch CEO showcased such awareness. See SHEAR, Emmett. From our CEO: A letter to Twitch creators about Article 13. Twitch Blog [online]. publikováno 5. 12. 2018 [vid. 3. 6. 2020]. 651 Para 47 Judgment of the CJEU, The Pirate Bay. 652 HUSOVEC, 2017, op. cit., s. 55-56.

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Similarly, we can perceive the claim of ownership over the content as an active step towards the content. These active steps may potentially contaminate safe harbor protection as it implies constructive knowledge of content.

Third, we must consider the character of the business and the professionality of the intermediary. Twitch expertise and focus lies in webcasting video games, and we might presume familiarity with the industry. While Twitch is not aware of individual cases of infringement, as a reasonable operator, it should be familiar with license gaps and general restraint to grant monetization rights.

Fourth, moving towards individual infringements, Twitch subscription Twitch Prime offers subscribers monthly free content such as video games, character skins, booster packs, or in-game currency.653 Free games do not necessarily reflect the game’s popularity on Twitch. On the other hand, free content for video games does cover some of the more popular video games such as skins for Fortnite, content for Destiny 2, or character skins for League of Legends.654 This curated choice, thus, reflects the popularity of video games on the platform, and Twitch must, therefore, be aware of popular video game titles webcasted on the platform. Consequently, as a reasonable operator, it should be aware of license practices of these particular games, further contributing towards the platform’s constructive knowledge.

Fifth, in July 2018, Twitch introduced personalized recommendations as a feature to its users. Twitch recommends content based on the viewers’ interest.655 Consequently, Twitch must be aware of the content of webcasts to optimize these recommendations. Similarly to Twitch Prime, personalized recommendations imply knowledge of infringing content, possibly, depriving Twitch of its safe harbor protection.

Sixth, Twitch offers categories of video content which correspond to video game titles. Moreover, to add a title to the list of categories, Twitch must approve requests or add the game itself.656 Twitch, thus, gives users of its platform tools to locate works protected by copyright.657

Seventh, Twitch uses webcast recordings for its promotional purposes. Thus, scrolling through posts on Facebook or Instagram, we can observe captures from specific streaming channels streaming specific video games.658 We can thus, conclude that Twitch is aware of concrete instances of video game use on their platform and that it knows the content.

We must, however, note that Twitch knowing of particular content does not equal it knowing of its illegality. Ideally, rightsholders should enforce their rights through notice and takedown system. In the case of Twitch, we can identify only the DMCA notice webpage following the US law.659 Twitch has, however, not received any DMCA or E-Commerce notices claiming infringement of video game content. Its knowledge, therefore, cannot be based on notices. On the other hand, Twitch should be

653 PIERCE, op. cit. 654 PIERCE, op. cit.; PAGES, Mat. Free Twitch Prime Games May 2020: Amazon Prime Members Can Claim 7 Games Now. GameSpot [online]. publikováno 29. 5. 2020 [vid. 25. 5. 2020]. 655 Introducing Tags and New Categories: New Ways to Discover Streamers on Twitch. Twitch Blog [online]. publikováno 26. 9. 2018 [vid. 8. 11. 2019]. 656 2 Ways to Make Your Indie Game More Visible on Twitch. Medium [online]. publikováno 13. 12. 2016 [vid. 30. 5. 2020]. 657 Para 36 Judgment of the CJEU, The Pirate Bay. 658 See Twitch (@twitch). In: Instagram [online]. [vid. 26. 5. 2020]. 659 Point should be therefore made of how different notices under E-Commerce Directive and Digital Millenium Copyright Act are. See DMCA Guidelines. Twitch [online]. aktualizováno 27. 3. 2019 [vid. 10. 4. 2020].

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aware of the similar problem of monetization of Let’s Play videos and lack of proper license authorizations.660

6.3.3 Primary Liability Streamers are, consequently, bound to not infringe intellectual property according to Twitch rules. In Section 4.2, we observed that license terms often contain specific provisions addressing monetization. Formulations of such legal grounds, however, often are imperfect.661

Moreover, we have encountered at least one big video game company explicitly denying monetization of its video games.662 At the same time, however, its game Monster Hunter World has been among the top 50 most streamed games on Twitch in April 2020, attracting over 2.56 million minutes watched.663 Consequently, we must conclude that at least a portion of video games webcasted on Twitch are communicated to the public without authorization. Moreover, we argue that more significant portion of video games on Twitch might prove problematic due to uncertain terms.

As we have concluded in Section 4, unauthorized communication to the public is an infringement of copyright pursuable under § 2910 of Civil Code as a non-contractual breach of law or § 2913 of Civil Code for breach of license terms. In terms of penal and administrative law, streamers are punishable by law either according to § 270 of Penal Code or according to § 105a and § 105b of Copyright Code.664

Moreover, we must address the issue of whether the platforms are also performing acts of communication to the public. First, we shall thus analyze whether Twitch provides only physical facilities or goes beyond by performing indexing, categorization, deletion, or filtering activities.665 We know that Twitch offers tags for users to categorize their content. Moreover, we can identify hidden tags classifying content geographically666 and video game corresponding categories. These features, further, allow users to locate works protected by copyright.

Consequently, we can conclude that Twitch’s operation might amount to communication to the public. Next, we must analyze whether Twitch deliberately intervenes. Considering that Twitch operates for profit, we, first, rebuttably presume constructive knowledge. Moreover, other relevant factors such as Twitch Prime, broad license over the content, personalized recommendations, or categorization of content further contribute to constructive knowledge of the platform.

660 FUTTER, Mike. Here’s Where Publishers Stand On YouTube Monetization And Copyright Right Now. Game Informer [online]. publikováno 13. 12. 2013a [vid. 25. 5. 2020]; FUTTER, Mike. Tidal Wave Of YouTube Copyright Claims Underway. Game Informer [online]. publikováno 11. 12. 2013b [vid. 25. 5. 2020]; COWAN, Danny. Nintendo mass-claims revenue from YouTube „Let’s Play" videos. Engadget [online]. publikováno 16. 5. 2013 [vid. 25. 5. 2020]. 661 For example platform-specific titles such as Stardew Valley allowing monetization on Youtube. See Stardew Valley - FAQ [online]. [vid. 23. 4. 2020]. 662 See Capcom in Company Let’s Play Policies. Who Let’s Play [online]. [vid. 20. 4. 2020]; Capcom also states in its EULA to Monster Hunter World that „Capcom shall grant a non-exclusive license to users who install the Program to their own personal computer only for the purpose of playing the game for its personal use under the condition that the users shall abide by and comply with the provisions hereunder.” See Monster Hunter: World - EULA. Steam [online]. [vid. 25. 5. 2020]. 663 Monster Hunter World. Newzoo Analytics [online]. [vid. 25. 5. 2020]. 664 Such as the example of Agraelus. See BARTKOVSKÝ, 2020, op. cit. 665 Para 38 Judgment of the CJEU, The Pirate Bay. 666 Depending on the country we are accessing the service from, we can see content creators from the same country under „recommended.“

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In conclusion, pending referrals in the case of YouTube might provide clarification on Twitch position under current law.667 Consequently, Twitch could be liable for its actions and actions of its users as direct perpetrator subject to identical norms and conditions as its streamers.

6.3.4 Indirect Liability We have now successfully demonstrated that Twitch streamers are infringing copyright and that Twitch’s operation might amount to communication to the public. Next, we shall look into the platform’s indirect liability. We must consider the indirect liability for the eventuality that Twitch activity would not amount to communication to the public.

We shall mainly take into account the platform’s practices and position towards the content to conclude whether we can assume Twitch’s indirect liability and consider the safe harbor protection. Moreover, we shall also address Twitch’s injunctive liability.

Starting with liability, we can conclude liability based on national norms. In the Czech legal environment, we shall focus predominantly on the obligation to intervene in the protection of others and participation on infringement, which are closely tied to the acts of the primary perpetrator.

Twitch service could be specified as a passive provision of streaming infrastructure and potential active involvement in the monetization of content via, for example, bits668. Platform’s active behavior falls under the provision § 2900 of the Civil Code, which applicability is still subject to academic discussion due to the uncertain legal status of intellectual property as property within the meaning of the Civil Code.669

Passive behavior falls under the obligation to intervene under § 2901 of the Civil Code and is limited to three specific situations. Obligation to intervene due to personal relationships with the perpetrator is not applicable. Such a relationship, although it might be contractual, is characterized by a higher level of trust between parties.670 Twitch contracts with its users via standard form contracts and platform users have little possibility to change the contractual terms unless they attract substantial viewership motivating Twitch to negotiate. Concluding personal relationships with a higher level of trust, consequently, seems inaccurate.

We can, on the other hand, assume that Twitch not only created a dangerous situation but also controls it. Twitch did define rules which serve as boundaries to the users’ behavior.671 We understand the dangerous situation as a situation that possibly leads to another’s harm with a high probability of harm. Because Twitch is based on webcasting protected content, moreover, with proper authorization lacking, we, indeed, can subsume Twitch under this passive obligation.

The third situation considers the ease of intervening in comparison to imminent damage. As explained in Section 4.3, we would need to conduct detailed and careful analysis employing Hand’s rule to consider ease of intervening in a specific case and future.672 Such an analysis, however, is out of the scope of this thesis.673 We must, therefore, conclude that Twitch might also be obliged under this provision.

667 ROSATI, 2019a, op. cit. 668 Guide to Cheering with Bits. Twitch Help [online]. [vid. 25. 5. 2020]. 669 See Section 4.3. 670 HULMÁK, op. cit., s. 1517-1518. 671 POLČÁK et al., 2018, op. cit., s. 11-13. 672 HUSOVEC, 2013, op. cit., s. 83-84. 673 Moreover, we can base Twitch liability under § 2901 of Civil Code already in previous condition.

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Furthermore, we must note, that obligation to intervene is tied to the recognizability of harm considered in the context of the case or customs of private life.674 Twitch is professional acting in the field for almost ten years and attracting the most frequent traffic. Thus, it is justified to measure harm’s recognizability by a higher standard in the sense of Supreme court ruling.675 Moreover, considering the primary platform’s focus on video games streaming, we shall assume that Twitch, as a professional operator, should recognize the harm to the absolute rights of third parties.

Typically, notices of infringement contribute to the recognizability of harm. However, there is currently no case claiming violation of the rightsholders’ rights. Thus, Twitch's obligation can be built solely on its professional position and knowledge of content. We must also consider that any professional with a sole focus on monetization of webcasts cannot be unaware of the 2013 YouTube policies change on Let’s Play video monetization.676 Consequently, we may conclude that harm to the third party’s rights is recognizable, and Twitch, based on the passive obligation under § 2901 of Civil Code, is obliged to intervene or bear liability for user-generated content.

We might also base Twitch’s liability on participation on streamers’ infringement. Twitch would, therefore, be accessorily liable together with a streamer for breach of contract or breach of law. Concluding such liability, however, broadens the concept of participation and should be used when the obligation to intervene proves inapplicable.

6.3.5 Safe Harbor In Section 2.2, we have settled that video game streaming services fall under the category of hosting ISPs under the E-Commerce Directive. Their business consists of the provision of infrastructure for live streaming, hosting user-generated content, and providing access to webcasts on users’ requests. Even if the video game streaming platforms, moreover, provided storage of information only for the duration necessary for live stream, it shall still fall under Art 13 of E-Commerce Directive.677

Safe harbor protection is, thus, limited to cases when intermediaries are (i.) passive, (ii.) do not have actual knowledge, (iii.) act expeditiously upon obtaining knowledge, and (iv.) do not exercise control or authority over the recipient of service.678

Considering the relevant case law, we must highlight that the economic character of service does not deprive it of safe harbor protection.679 In L’Oréal v eBay Court also held that optimizing the presentation of offers for sale, and promoting these offers equals active role and deprives ISP of safe harbor based on lack of passivity.680 We might argue, consequently, that Twitch optimizes content to its users via, for example, personalized recommendations. We cannot, however, conclude whether this optimization is purely technical and automatic or not.

Consequently, concluding applicability of safe harbor protection to Twitch requires a careful balancing of individual platform elements such as provided above. We have provided examples of practices contributing to constructive knowledge. On the other hand, only on a case by case basis can we conclude whether Twitch had constructive knowledge of infringement. We can, however,

674 See first sentence of §§ 2900 and 2901 of Civil Code. 675 See Rozsudek NS ČR, sp. zn. 25 Cdo 2819/2011. 676 Changes which outraged gaming community and initiated also previously studied Who Let’s Play database See FUTTER, 2013a, op. cit.; FUTTER, 2013b, op. cit.; COWAN, op. cit. 677 See Section 2.2. 678 Art 13 Directive 2000/31/EC. 679 Para 116 Judgment of the CJEU, Google France v Louis Vuitton. 680 Para 116 Judgment of the CJEU, L’Oréal v eBay.

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establish that Twitch’s claim of broad license might contaminate its passivity or even make third-party content Twitch’s own.

We must also note the absence of any action on the side of the rightsholders. In no way, we can interpret their lack of action as consent to monetization via Twitch. On the contrary, license terms contain explicit provisions safeguarding rights if rightsholders fail to enforce them.681 Nonetheless, its inactivity has practical reasons. Rightsholders rely on video game streams for free advertisement.682 Moreover, their enforcement of rights could outrage the community.683

To conclude this Section, we shall demonstrate Twitch's inability to claim safe harbor protection on a specific example. In February 2020, Twitch banned several streamers based on notices misrepresented as on behalf of CBS. The protected content was Democratic Debate streamed by CBS across the web. 684

What is noteworthy, however, is Twitch’s reaction. First, it immediately acted based on served notices. Following outrage in the community, Twitch had further investigated and found out that the party who submitted notices does not exist.685 Subsequently, Twitch marked notices as false and removed any penalties to individual streamers and their content.686

We must, first, highlight that submitting incomplete or misrepresented notice does not make the notice “false.” It does not immediately trigger the obligation of ISP to react, but it, after all, brings ISP’s attention towards possible wrongdoing. The immediate reaction, moreover, should be a proper investigation of the claim. Instead, Twitch reacted automatically without proper investigation missing even the point that legal entity submitting the claim does not exist.687

Furthermore, even though incomplete or misrepresented notice does not trigger the obligation to remove the content, it contributed to constructive knowledge. Twitch, in this particular instance, investigated the content further.688 Thus, we can conclude that Twitch indeed gained constructive knowledge of potentially infringing content. It should, therefore, had removed the content despite the notices being “false.”

Twitch, moreover, did remove any penalties to individual streamers even though the content they streamed may have violated its rules. In such a situation, Twitch could face problems in claiming safe harbor protection.689

681 Such as „Blizzard’s failure to enforce a provision of this Agreement shall not be construed as a (1) waiver of such provision, or (2) diminishment of any right to enforce such provisions. Further, Blizzard may choose to waive enforcement of a provision of this Agreement in a particular instance; however, you are still obligated to comply with that waived provision in the future.” See End User License Agreement. Blizzard Entertainment [online]. [vid. 22. 4. 2020]. 682 YARWOOD, op. cit. 683 And as we have seen on the cases such as Battlefront II or new Sonic the Hedgehog movie, fans‘ opinions do matter as they directly influence profit. See PARKER, op. cit.; LEE, Chris. Beyond the Creepy Teeth: How Sonic the Hedgehog Saved Itself. Vulture [online]. publikováno 14. 2. 2020 [vid. 26. 5. 2020]. 684 GRAYSON, Nathan. Twitch Apologizes For Suspending Debate Streamers Over Fake Copyright Claims. Kotaku [online]. publikováno 26. 2. 2020 [vid. 26. 5. 2020]. 685 Ibid. 686 Ibid. 687 Ibid. 688 Ibid. 689 Ibid.

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Nonetheless, this particular case happened in the US. If we transfer this scenario into the European copyright framework, we quickly discover that the Democratic Debate was not communicated to the public in the first place as there has been previous transmission via the internet to the general public, thus lacking the criterium of new public.690

We shall, however, note several missteps of Twitch notice and takedown system. First, the notice does not make content illegal. It only triggers the platform’s obligation to act expeditiously. Second, even incomplete or misrepresented notice does contribute towards constructive knowledge of infringing content.

Consequently, we can identify the actual problem of the Twitch model. It reacts only to proper notices despite it knowing of platform architecture, nature of the content, industry monetization issues, and use of specific content for content personalization and own promotional actions. The natural solution, consequently, might be the qualification of its operation as an act of communication to the public in the light of The Pirate Bay.691

6.3.6 Injunctive Liability Throughout the last two decades, we have observed a drastic shift in online liability. Around the beginning of the century, the legal field was occupied with identifying infringers such as in cases like Napster, Grokster, or Viacom v YouTube. The predominant task was to attribute users’ actions to ISPs.692 E-Commerce Directive follows this line of reasoning precisely, for it attempts to define liability boundaries.

However, the European doctrine shifted away from liability towards accountability, seeking to put obligations on innocent bystanders.693 Based on Husovec, we must also argue that rightsholders may seek injunctions against intermediaries. Injunctions might be more efficient at preventing undesired behavior and may also be cheaper to obtain. Moreover, compared to rightsholders seeking liability against the entire platform, it may grieve community to a lesser extent and have a lesser impact on profit-making ability.

Rightsholders may seek injunctions under § 40 Para 1 f) of Copyright Code or equivalent in other jurisdictions to gain refraining or removal order. They may also seek information claim under § 40 Para 1 c) p. 3 of Copyright Code. They may, consequently, enforce their rights against individual infringers without the need for lengthy proceedings.

Furthermore, rightsholders may attempt to enforce monitoring obligations. In this context, we must note the voluntary filtering already conducted by Twitch and the implications of monitoring obligation imposed upon Twitch.

As Twitch is open to liability claims, it must take measures to prevent its potential liability. To this end, Twitch implemented the notice and takedown system that has not been much used by video game rightsholders. On the contrary, Twitch has been notified for breach of music copyright or webcast of tv broadcast.694

690 Ibid. 691 Para 47 Judgment of the CJEU, The Pirate Bay. 692 HUSOVEC, 2017, op. cit., s. 10. 693 Ibid. 694 See DREDGE, Stuart. Twitch gamers hit by DMCA takedowns for copyrighted music. mucic:)ally [online]. publikováno 26. 6. 2018 [vid. 26. 5. 2020]; PATTERSON, Calum. Twitch streamers hit out at Bazzi over DMCA strikes for year-old clips. Dexerto.com [online]. publikováno 25. 9. 2019 [vid. 26. 5. 2020]; KLEPEK, 2020, op. cit.

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Twitch was mostly notified of music copyright violations, so it had launched an algorithmic filter for musical works. Twitch, thus, filters unauthorized works out of video recordings available at the platform. Twitch, however, currently cannot remove unauthorized musical works from the webcast.695

At the same time, Twitch started negotiations aiming to create a music library for users to provide them with a playlist of music usable on its service.696 Twitch policies, however, changed, and it does not offer the pre-cleared list of music to its creators anymore.697

Twitch, did, consequently, ahead of DSM Directive, implement two measures presumed under the DSM Directive. Namely, it implemented the licensing under Art 17 (2) and filtering under Art 17 (4). We shall further investigate these obligations under the DSM Directive in a dedicated Section.

The abovementioned measures, however, had been limited to musical works. Video games, however, lack the platform’s attention, and Twitch protects them only following a notice.698 Twitch’s notice system, however, has also been proved faulty as it does not correctly investigate notices and instead just strikes content creators.699

6.4 DSM Directive In Section 4.1, we concluded that webcasting amounts to communication to the public. As the Art 17 (1) establishes that OCSSPs also communicate works to the public, we, based on the previous conclusion, must attest that OCSSPs communicate works protected by copyright. Nonetheless, as highlighted in Section 5.2.1, the nature of communication to the public under Art 17 (1) remains to be determined, and the application of established case law, thus, might prove problematic.

In this Section, we shall uphold the conclusions of Section 5.2 while noting several claims and practices specific to Twitch.

Last but not least, regarding the liability mitigation mechanism, we shall note that during the legislative process, Twitch explicitly stated, they shall rely on users’ license:

“Twitch could be forced to impose filters and monitoring measures on all works uploaded by residents of the EU. This means you would need to provide copyright ownership information, clearances, or take other steps to prove that you comply with thorny and complicated copyright laws.”700

Instead of approaching major rightsholders, thus, Twitch could remain passive and only ask its users to provide proof of license. We have seen similar practices on YouTube, and, in fact, some rightsholders reacted by adjusting their licenses.701 On the other hand, the share of the rightsholders maintained their current license agreements and did not provide an appropriate license.702 Naturally,

695 MCWHERTOR, op. cit. 696 Twitch Music Library FAQ. WayBackMachine [online]. [vid. 26. 5. 2020]. 697 See What happened to the twitch music library? In: Reddit [online]. publikováno 7. 12. 2018 [vid. 26. 5. 2020]. 698 Although it proclaimed to require authorization from its users if DSM Directive obligation pass. See SHEAR, op. cit. 699 See Section 6.3.5 and the example of Democratic debate. 700 SHEAR, op. cit. 701 For example see Video Policy. Steam [online]. [vid. 27. 5. 2020]. 702 Policy on posting copyrighted 2K material. 2K Support, op. cit.

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such reliance would not satisfy the best efforts requirement, and, consequently, if Twitch stayed true to its claim, it would not only be open to liability, but also it would significantly harm its own business.

Moreover, obtaining authorization for their acts might still protect video game streaming services from liability. On the contrary, one of the possible interpretations offers the reading that despite its authorization, OCSSPs are still liable unless they also perform their obligation under Art 17 (4).703 Consequently, unless video game streaming platforms clear rights for themselves and commercial acts of their users, they still may bear the liability.

In the conclusion of this Section, we shall note Twitch CEO claiming that the DSM Directive could target the wrong companies. His claim stands on the assumption that services such as Twitch, YouTube, or Reddit use works protected by copyright legally.704 We have, on the other hand, identified several missteps that constitute a breach of intellectual property. Although rightsholders do not actively pursue their rights, it does not change the fact that the entire industry is built on breach of copyright. Moreover, the individual streamers, under the previous and possibly also new regime, are the most vulnerable party for any wrongdoing.

In the future, we shall see whether Twitch stays true to its promise. Nonetheless, any license must be sufficiently explicit to suffice the requirement under Rec 69. Alternatively, Twitch could seek authorization itself. Any obtained authorization, however, cannot extend to users’ commercial acts or acts, generating significant revenue under Art 17 (2).705 Subsequently, unless Twitch negotiates authorization also for commercial acts, or unless rightsholders grant sufficient authorization, privileged streamers shall continue to infringe on intellectual property.

Regarding the liability mitigation mechanism, we shall, again, note Twitch representative proposing industry solution to standardize the provision of the relevant and necessary information. Specifically, Twitch might wish to create an industry database in which rights holders shall register their works.706 Nonetheless, in Section 5.2, we argued that pitfall of such approach is an overreliance on information provided through such a database, which cannot suffice Art 17 (4) (a) requirement of best effort to obtain authorization.

6.5 Interim Conclusion for Video Game Streaming Platforms The first thing any operator must bear in mind is that webcasting works protected by copyright equal communication to the public. Communication to the public is an exclusive author’s right and, hence, any person wishing to stream video games must obtain proper authorization. De lege lata, the burden of authorization falls on the platform’s users. However, this obligation is shifting towards platforms with the DSM Directive.

Further, any operator of video game streaming platform should note license practices of rightsholders with particular caution of video game monetization. Similarly, to YouTube, video game streaming platform should seek proper legal titles from their users as otherwise, they might be

703 Subject to the logic, that OCSSPs only have only made their best efforts to obtain authorization. See HUSOVEC; QUINTAIS, op. cit., s. 14. 704 WALTON, Kate. Twitch CEO: Europe’s New Copyright Law Could Hurt the Wrong Companies. Law Rad [online]. publikováno 1. 4. 2019 [vid. 3. 6. 2020]. 705 See Section 5.2.2. 706 Ibid., see 11:30.

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opening themselves to potential claims.707 Moreover, we have identified several video games streamed on Twitch that do not authorize players to communicate their works to the public.708

As we can conclude the unauthorized content shared on video game streaming platforms, we must consequently ask whether intermediaries might not be the ones communicating the works in issue. Our analysis, thus, concludes that the model of Twitch fits well into the categories and conditions set in The Pirate Bay.709 However, only the pending YouTube referral can set these facts straight. For such eventuality, the proper precaution, thus, would be seeking authorization themselves.710

Video game streaming platforms, shall, therefore, proceed with caution as their activity may shift themselves towards constructive knowledge or even qualification of their acts to amount to communication to the public. These activities might be personalized recommendations of content, using third-party content for own promotion, offering subscription bonuses reflecting video game popularity on the platform, categorization of content, or also claiming broad license over third-party content possibly making it platform’s own.711 Many of these involvements may shift the platform's position toward constructive knowledge or make it lose its passivity, thus making also the safe harbor protection unattainable.

Nonetheless, rightsholders seldom enforce their rights on video game streaming platforms, and it may be more efficient for them to seek injunctions instead. The clear advantage is less uproar from the community while maintaining the effectiveness of copyright enforcement.712

Platforms should further be cautious of new developments. Even though DSM Directive shall soon apply to their conduct, there still are several CJEU referrals pending, such as YouTube C 682/18, Elsevier C 683/18, Stichting Brein C 442/19, or Puls 4 TV C 500/19.713 These referrals might further clarify their position.

In conclusion, however, we must highlight that streamers themselves are found in the most vulnerable position. Streamers are the direct perpetrators of intellectual property. Streamers often are people who do not hide behind the anonymity of the internet. Although rightsholders do not actively enforce their rights, they suddenly might start for reasons such as presenting their video game in an unflattering light.714 Streamers are the end link in any case of liability as intermediaries might ask streamers for reimbursement.

Intermediaries, furthermore, as seen on CBS example, do not adequately investigate notices and just automatically remove problematic content in question.715 Finally, streamers might also be targeted by penal or administrative sanctions as they, in fact, do breach intellectual property rights.

Streamers, thus, are in the state of the constant threat of sanctions. This state, however, is entirely unnecessary as the current business model benefits all parties involved. Video game rightsholders

707 FUTTER, 2013a, op. cit.; FUTTER, 2013b, op. cit. 708 Such as Stardew Valley, or Monster Hunter World, but also potentially Blizzard games or other non- commercial use limited video games per Who Let’s Play database. 709 Para 47 Judgment of the CJEU, The Pirate Bay. 710 We have seen YouTube obtaining authorization itself. See What rights are covered by the YouTube licence. PRS for Music [online]. [vid. 5. 6. 2020]. 711 See Section 6.3.2. 712 See Section 4.2. 713 ROSATI, 2020, op. cit., s. 3-4. 714 Such as HALL, op. cit. 715 KLEPEK, 2020, op. cit.

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gain free advertising and attention to their games. Streamers can monetize their hobbies and share their creative work. Video game streaming platforms are profitable and can provide unique meeting grounds for the community. In conclusion, thus, there is no practical reason for this legal uncertainty.

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7. Conclusion June 2020 has been marked by significant development in the area of video game streaming. Microsoft discontinued its platform Mixer and market, thus, loses one of the competitors.716 Twitch, moreover, seeks new areas of content, possibly even developing reality TV or dating shows for gamers.717 Mixer discontinuation, furthermore, signals the upcoming migration of streamers to different platforms, possibly to Twitch, further strengthening its market dominance.718 Similarly, the social aspect plays a more significant role in entertainment today as

“media in 2020 is about communities. Places where people gather, for whatever reason, to find each other.”719

Consequently, seeking answers to our question of what the inherent problems of video game streaming services are and identifying vulnerable parties to suffer possible consequences becomes ever so relevant. To answer the three questions introduced in Section 1, we had to provide a theoretical background on legal regulation extensively. We identified video games as copyright- protected subject-matter communicated to the public by streamers.720 Moreover, video game streaming services could communicate the works at issue to the public themselves.721

The communication to the public, however, in many instances remains unauthorized, as concluded in Section 4.2. Some rightsholders allow both commercial and non-commercial exploitation of their games via game streaming platforms. Some do not consider monetization via video game streaming platforms a commercial use at all. Some, on the other hand, prohibit monetization as commercial use altogether. Some rightsholders attempt to provide exceptions from monetization prohibition with varying degrees of success. Consequently, streamers without commercial pursuit are mostly covered by the authorization. Streamers seeking commercial gain, on the other hand, often lack proper authorization and violate video game copyright.

Under the current legal regime, we may hold streamers directly liable. Similarly, video game platforms could be held directly liable if we conclude that they communicate the work to the public in the light of The Pirate Bay.722 For cases where platforms do not communicate works to the public, we have considered liability under §§ 2900, 2901, and 2910 of Civil Code or possibly, penal or administrative norms, and took account of possible safe harbor protection.723 However, due to platform architecture, nature of the content, industry monetization issues, and use of specific content for personalization and platform’s own promotional actions applicability of safe harbor

716 Mixer has been known for big investments into its exclusivity and streamers. See LIAO, op. cit.; TASSI, Paul. Microsoft Kills Mixer, Xbox Partners With Facebook, Ninja And Others Can Return To Twitch. Forbes [online]. publikováno 22. 6. 2020 [vid. 23. 6. 2020]. 717 SHAW, Lucas. Twitch Is Developing Talk Shows and Dating Programs for Gamers. Bloomberg.com [online]. publikováno 7. 5. 2020 [vid. 20. 6. 2020]. 718 WEBSTER, Andrew. Mixer was a failure, but it kicked off a talent war for streamers. The Verge [online]. publikováno 23. 6. 2020 [vid. 24. 6. 2020]. 719 STEPHEN, Bijan. Mixer failed — here’s why. The Verge [online]. publikováno 23. 6. 2020 [vid. 24. 6. 2020]. 720 Section 3 covers the legal status of videogames as Section 4.1 considers the right of communication to the public. 721 Para 47 Judgment of the CJEU, The Pirate Bay. 722 Para 47 Judgment of the CJEU, The Pirate Bay. 723 See Section 4.3.

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protection remains inconclusive.724 Moreover, even if we protect video game streaming platforms under the E-Commerce Directive safe harbor, they could be subjected to injunctions.725

Considering the application of the DSM Directive, under Art 17 (1), OCSSPs are directly communicating works to the public. Subsequently, OCSSPs shall either seek authorization, as reliance on users’ authorization seems problematic, or perform best efforts under Art 17 (4).726 Interestingly, even if video game streaming platforms obtain authorization for their own acts of communication to the public, their authorization extends only to non-commercial acts of users.727 Subsequently, streamers seeking commercial gain continue to infringe on video game copyright. Even more interestingly, their activity could impact OCSSPs, which would, despite their own authorization, need to perform best efforts under Art 17 (4) to avoid liability.728

In conclusion, what, in fact, is problematic is not the infringement itself, but rather the imperfect license practice, which unnecessarily results in the infringement. Infringement which in itself is predominantly overlooked in the industry as the number of notices claiming infringement of video game copyright remains close to zero.729 We must also highlight that we have identified notices only in an attempt to silence specific content creators who not only infringed copyright but also harmed public image of the video game.730 The E-Commerce Directive scheme, hence, allowed to wield copyright as a tool of censorship as any notice of infringement triggered only removal obligation.

The DSM Directive, on the other hand, introduced a regime under which notice of infringement triggers removal and preventive obligation. Consequently, rightsholders could reconsider their approach and either perfect the license agreements to grant necessary rights731 or negotiate with video game streaming platforms to grant necessary licenses for remuneration. Alternatively, rightsholders could remain passive towards their rights. Nonetheless, they could not wield copyright as a tool of censorship since following the first claim rightsholders would have to choose one of the previous options to maintain their video games on platforms.732

We, nonetheless, must also consider the eventuality of video game streaming platforms requiring authorization proof from its users.733 YouTube has introduced a similar obligation to Let’s Play videos on its platform in 2013.734 Consequently, rightsholders in the majority did provide necessary legal titles to Let’s Play videos, although some rightsholders prohibited monetization of content. Such a scenario would also lead to clarification of license practice, which would be desirable for legal certainty.

724 See Section 4.3. 725 See Section 4.3. 726 HUSOVEC, QUINTAIS, op. cit., s. 1-5. 727 See Section 5.2.2. 728 See Section 5.1.3. 729 Overlooked for various reasons such as advertisement potential or wish not to anger the community. See Section 4.2. 730 GOOD, op. cit.; KHAN, op. cit. 731 There either approach represented by Valve or Mojang perceiving monetization as non-commercial use, or approach represented by Blizzard or Epic Games seems suitable, if the license agreement loopholes are corrected. See Section 4.2. 732 Under the DSM Directive the removal and preventive obligations are triggered once OCSSPs receive notice, thus removing any content once means obligaiton to prevent appearance of that specific content in the future. See Section 5.1.3. 733 As have been threatened from Twitch CEO. See SHEAR, op. cit. 734 FUTTER, 2013a, op. cit.; FUTTER, 2013b, op. cit.

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Furthermore, we must also consider the eventuality that video game streaming platforms would, indeed, negotiate proper authorization under Art 17 (1) extending to users’ act under Art 17 (2). As we concluded in Section 5.2.2, the problematic commercial acts of streamers would still fall outside the authorization obtained by the platform. Rightsholders, moreover, could continue not enforcing their rights. Subsequently, the last possibility we present is no change to the video game streaming industry whatsoever.735

Recalling the three research questions from Section 1, we established that video game streaming infringes copyright.736 Further, we established that the video game streaming industry is not at fault as the infringement is deeply rooted in inconsistent and bad license practices.737 Furthermore, we provided that the DSM Directive could impact the negative practice.738

At this moment, we shall justify the considerable length of the thesis. The length has proved necessary to describe all necessary facts sufficiently. Video game streaming and European copyright framework are currently situated in between two different legal regimes and omitting one or the other would necessarily harm the complexity of this work. Moreover, we had to study all necessary problems such as video games protection under copyright, the communication to the public, safe harbor protection, or Art 17 of the DSM directive which, in themselves, would suffice as a topic for an entire thesis. Nonetheless, these topics have already been sufficiently covered by other academics and focus on the video game streaming industry in its complexity in between two legal regimes allowed us to provide unique scope of this unique challenge to copyright.739 The length of thesis has also been properly consulted.

In conclusion, thus, we shall highlight the fact the video game streaming industry is built on largely unauthorized exploitation of copyright-protected video games. Insofar, rightsholders took little notice of work exploitation on video game streaming platforms. No enforcement of their rights, however, does not make industry practice legal. Moreover, the end link both under the current legal regime and under the DSM Directive are the streamers who shall suffer all consequences either through direct enforcement or from the platforms which can seek indemnity. Additionally, improper license practice might lead to the qualification of video game streaming as a crime or offense under national law opening streamers to unproportionate sanctions.

735 See Section 5.2.2. 736 See Sections 4.1 and 4.2. 737 See Sections 4.2. 738 Mostly due to removal and preventive obligations under Art 17 (4). 739 See, e.g. HUSOVEC, 2017, op. cit.; HUSOVEC, 2014, op. cit., RUSSELL, op. cit., VELDEN, op. cit., HALLIDAY, op. cit.

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Other Publications 43. DREISEITLOVÁ, Evelýna. Audiovizuální dílo: česká právní úprava, česko-francouzská komparace, evropská úprava [online]. Praha, 2011, 66 s. [vid. 26. 3. 2020]. Diplomová práce. Karlova univerzita, Právnická fakulta. Získáno z: https://is.cuni.cz/webapps/zzp/detail/82793 44. EUROPEAN COMMISSION. The Economy of Culture in Europe [online]. 2006 [vid. 16. 4. 2020]. Získáno z: https://ec.europa.eu/assets/eac/culture/library/studies/cultural-economy_en.pdf 45. HÁLEK, Jakub. Let’s Play videa z pohledu autorského práva [online]. Praha, 2018. 124 s. [vid. 1. 4. 2020]. Diplomová práce. Karlova univerzita, Právnická fakulta. Získáno z: https://dspace.cuni.cz/handle/ 20.500.11956/98030 46. HALLIDAY, Paul. The DMS Directive: One size fits all? [online]. Tilburg, Nizozemí, 2020. 49 s. [vid. 13. 5. 2020]. Diplomová práce. Tilburg University. Získáno z: https://arno.uvt.nl/show.cgi?fid=150059 47. HOLBÍK, Ľudovít. Autorskoprávní ochrana herního softwaru [online]. Praha, 2016. 67 s. [vid. 8. 4. 2020]. Diplomová práce. Karlova univerzita, Právnická fakulta. Získáno z: https://is.cuni.cz/webapps/ zzp/detail/160765/ 48. RUSSELL, James. “Pwnership”: Is copyright appropriately equipped to handle videogames? [online]. Uppsala, 2018. 84 s. [vid. 13. 4. 2020]. Diplomová práce. Uppsala University, Department of Law. Získáno z: https://uu.diva-portal.org/smash/get/diva2:1203948/FULLTEXT01.pdf 49. VELDEN, Stephan van der. Playing the game of video game classification: Game Over for Europe? [online]. Tilburg, 2017. 61 s. [vid. 23. 3. 2020]. Diplomová práce. Tilburg University, Faculty of Law. Získáno z: https://arno.uvt.nl/show.cgi?fid=144375 50. RAMOS, Andy et al. The Legal Status of Video Games: Comparative Analysis in National Approaches [online]. WIPO, 2013 [vid. 25. 2. 2020]. Získáno z: http://www.wipo.int/export/sites/ www/copyright/en/activities/pdf/comparative_analysis_on video_games.pdf 51. ZIBNER, Jan. Jedinečnost jako pojmový znak autorského díla [online]. Brno, 2017. 126 s. [vid. 6. 4. 2020]. Diplomová práce. Masarykova univerzita, Právnická fakulta. Získáno z: https://is.muni.cz/auth/th/lk63n/

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Legislation

EU 52. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases. In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 27. 3. 2020]. Získáno z: http://data.europa.eu/eli/dir/1996/9/oj/eng 53. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 27. 3. 2020]. Získáno z: http://data.europa.eu/eli/dir/2000/31/oj/eng 54. Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 20. 3. 2020]. Získáno z: http://data.europa.eu/eli/dir/2001/29/oj/eng 55. Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 27. 2. 2020]. Získáno z: http://data.europa.eu/eli/dir/2004/48/oj/eng 56. Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property. In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 27. 3. 2020]. Získáno z: https://eur- lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32006L0115 57. Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version). In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 26. 3. 2020]. Získáno z: https://eur-lex.europa.eu/legal- content/EN/ALL/?uri=CELEX%3A32009L0024 58. Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services. In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 27. 3. 2020]. Získáno z: http://data.europa.eu/eli/dir/2015/1535/oj/eng 59. Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. In: EUR-Lex [právní informační systém]. Úřad pro publikace Evropské unie [vid. 27. 3. 2020]. Získáno z: http://data.europa.eu/eli/dir/2019/790/oj/eng

Czech Republic 60. zákon č. 480/2004 Sb., o některých službách informační společnosti In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [cit. 5. 2. 2020]. Získáno z: https://www.beck- online.cz/bo/chapterview-document.seam?documentId=onrf6mrqga2f6nbygawtq 61. zákon č. 40/2009 Sb., trestní zákoník In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [cit. 23. 2. 2020]. Získáno z: https://www.beck-online.cz/bo/chapterview- document.seam?documentId=onrf6mrqga4v6nbqfuzds 62. zákon č. 89/2012 Sb., občanský zákoník In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [vid. 23. 2. 2020]. Získáno z: https://www.beck-online.cz/bo/chapterview- document.seam?documentId=onrf6mrqgezf6obzfu2q 63. zákon č. 99/1963 Sb., Občanský soudní řád In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [vid. 18. 3. 2020]. Získáno z: https://www.beck-online.cz/bo/chapterview- document.seam?documentId=onrf6mjzgyzv6ojzfuytcny 64. zákon č. 121/2000 Sb., o právu autorském, o právech souvisejících s právem autorským a o změně některých zákonů (autorský zákon) In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [vid. 2. 3. 2020]. Získáno z: https://www.beck-online.cz/bo/chapterview- document.seam?documentId=onrf6mrqgayf6mjsgewtema

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Other 65. Čínská lidová republika, Copyright Law of the People’s Republic of China. In: WIPOLex [právní informační systém]. WIPO [vid. 1. 3. 2020]. Získáno z: https://wipolex.wipo.int/en/text/186569 66. Čínská lidová republika, Regulations on Computer Software Protection. In: WIPOLex [právní informační systém]. WIPO [vid. 30. 3. 2020]. Získáno z: https://wipolex.wipo.int/en/text/455377 67. Chorvatská republika, návrh implementačního zákona: Nacrt Prijedloga Zakona o Autorskom Pravu I Srodnim Pravima [online]. [vid. 1. 6. 2020]. Získáno z: https://esavjetovanja.gov.hr (strojový překlad) 68. Maďarsko, návrh implementačního zákona: Törvénya Szerzői Jogról [online]. [vid. 8. 6. 2020]. Získáno z: https://s3.us-west-2.amazonaws.com/secure.notion-static.com/21a98f7f-3243-41ba-82c8- 65fba5cd81d4/szjt_dsm.satcab_indoklassal_2020.05.07.pdf?X-Amz-Algorithm=AWS4-HMAC-SHA256&X- Amz-Credential=AKIAT73L2G45O3KS52Y5%2F20200610%2Fus-west-2%2Fs3%2Faws4_request&X-Amz- Date=20200610T150220Z&X-Amz-Expires=86400&X-Amz- Signature=4e3fd345ef03a6f4562d08493306afa796135307d56d08c7a7f8dd3a7a2733b6&X-Amz- SignedHeaders=host&response-content- disposition=filename%20%3D%22szjt_dsm.satcab_indoklassal_2020.05.07.pdf%22 (strojový překlad) 69. Španělsko, Consolidated Text of the Law on Intellectual Property, Regularizing, Clarifying and Harmonizing the Applicable Statutory Provisions. In: WIPOLex [právní informační systém]. WIPO [vid. 26. 3. 2020]. Získáno z: https://wipolex.wipo.int/en/text/126674 70. Úmluva o mezinárodním zápisu audiovizuálních děl [online]. WIPO [vid. 26. 3. 2020]. Získáno z: https://www.wipo.int/export/sites/www/treaties/en/documents/other_treaties/frt-treaty.pdf

Case Law

EU 71. Judgment of the Court of 2 May 2012, SAS Institute Inc. v World Programming Ltd. C 406/10. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/liste.jsf?num=C-406%2F10 72. Judgment of the Court of 2 June 2005, Mediakabel BV v Commissariaat voor de Media (Mediakabel). C 89/04. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/liste.jsf?language=en&num=C-89/04 73. Judgment of the Court of 3 March 2016, Daimler AG v Együd Garage Gépjárműjavító és Értékesítő Kft. C 179/15. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?docid=174760&doclang=en 74. Judgment of the Court of 7 December 2006, SGAE v Rafael Hoteles SA. C 306/05. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/ document.jsf?text=&docid=66355&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=94 93381 75. Judgment of the Court of 11 September 2014, Sotiris Papasavvas v O Fileleftheros Dimosia Etaireia Ltd and Others (Papasavvas). C 291/13. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/liste.jsf?num=C-291/13 76. Judgment of the Court of 12 July 2011, L’Oréal SA v eBay International. C 324/09. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=EN& mode=lst&dir=&occ=first&part=1&cid=12281433 77. Judgment of the Court of 14 June 2017, Stichting Brein v Ziggo BV (The Pirate Bay). C 610/15. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?text=&docid=191707&pageIndex=0&doclang=EN& mode=lst&dir=&occ=first&part=1&cid=868801 78. Judgment of the Court of 15 September 2016, Tobias Mc Fadden v Sony Music Entertainment Germany GmbH (Mc Fadden). C 484/14. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/liste.jsf?num=C-484/14

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79. Judgment of the Court of 16 November 2016, Marc Soulier, Sara Doke v Premier ministre, Ministre de la Culture et de la Communication. C 301/15. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?docid= 185423&doclang=EN 80. Judgment of the Court of 21 June 2012, Titus Alexander Jochen Donner. C 5/11. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/ document.jsf?text=&docid=124189&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3 73253 81. Judgment of the Court of 22 December 2010, Bezpečnostní softwarová asociace - Svaz softwarové ochrany v Ministerstvo kultury (BSA v Ministerstvo kultury). C 393/09. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/ document.jsf;jsessionid=C8F6DF64D63106BF9A3301DF22D60D1D?text=&docid=83458&pageIndex=0&d oclang=EN&mode=lst&dir=&occ=first&part=1&cid=866020 82. Judgment of the Court of 23 January 2014, Nintendo Co. Ltd v PC Box Srl, 9Net Srl (Nintendo). 355/12. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?text=&docid=146686&pageIndex=0&doclang=en& mode=lst&dir=&occ=first&part=1&cid=610284 83. Judgment of the Court of 23 March 2010, Google France v Louis Vuitton. C 236/08 a 238/08. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf;jsessionid=CE3D7804EEC823A46E0135F6D6A9D6C A?text=&docid=83961&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=12270533 84. Judgment of the Court of 24 November 2011, Scarlet Extended SA v SABAN. C 70/10. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?docid=115202&doclang=EN 85. Judgment of the Court of 26 April 2017, Stichting Brein v Jack Frederik Wullems (Filmspeler). C 527/15. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?text=&docid=190142&pageIndex=0&doclang=EN& mode=lst&dir=&occ=first&part=1&cid=868969 86. Judgment of the Court of 27 March 2014, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH, Wega Filmproduktionsgesellschaft mbH. C 314/12. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/ document.jsf?text=&docid=149924&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=7 372626 87. Opinion of Advocate General Sharpston delivered on 19 September 2013, Nintendo v PC Box, C 355/12. In: Curia [právní informační systém]. Soudní dvůr Evropské unie [vid. 20. 3. 2020]. Získáno z: http://curia.europa.eu/juris/document/document.jsf?text=&docid=141822&pageIndex=0&doclang=EN& mode=lst&dir=&occ=first&part=1&cid=2163067

Czech Republic 88. Rozsudek Nejvyššího soudu ze dne 30. 9. 2004, sp. zn. 4 Tz 124/2004. In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [cit. 5. 5. 2020]. Získáno z: https://www.beck- online.cz/bo/document- view.seam?documentId=njptembqgrpw4427gqydqnq&groupIndex=0&rowIndex=0 89. Nález Ústavního soudu ze dne 12. 10. 2006, sp. zn. I. ÚS 69/06. In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [cit. 5. 5. 2020]. Získáno z: https://www.beck-online.cz/bo/document- view.seam?documentId=njptembqgzptcobwl52xg3q&groupIndex=0&rowIndex=0 90. Rozsudek Městského soudu v Praze ze dne 22. 2. 2019, sp. zn. 34 C 5/2017. 91. Rozsudek Nejvyššího soudu ze dne 25. 3. 2015, sp. zn. 30 Cdo 5008/2014. In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [cit. 5. 5. 2020]. Získáno z: https://www.beck- online.cz/bo/document- view.seam?documentId=njptembrgvpxexzygrpwg2lw&groupIndex=0&rowIndex=0

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92. Rozsudek Nejvyššího soudu ze dne 28. 2. 2013, sp. zn. 25 Cdo 2819/2011. In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [cit. 15. 5. 2020]. Získáno z: https://www.beck- online.cz/bo/document-view.seam?documentId=njptembrgnpwgxzrgi2taoi&groupIndex=0&rowIndex=0 93. Rozsudek Nejvyššího soudu ze dne 31. 7. 2013, sp. zn. 23 Cdo 2623/2011. In: Beck-online [online právní informační systém]. Nakladatelství C. H. Beck [cit. 5. 5. 2020]. Získáno z: https://www.beck- online.cz/bo/document- view.seam?documentId=njptembrgnpw4427ge3daoa&groupIndex=0&rowIndex=0

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