Article 13 approved: What are the EU copyright law amendments?

Article 13, and its sibling Article 11, are contentious pieces of EU copyright law that, opponents claim, could destroy the internet as we know it. It’s been referred to as the “meme ban”, as well as censorship. However its supporters say it’s necessary to support creatives online.

In September 2017 the European Parliament voted on – and approved – an amended version of the EU copyright law that was rejected by the same body in July of this year.

The divisive legislation was put to the ultimate democratic test in Strasbourg, with 438 voting in favour of the measures, 226 voting against and 39 abstaining. 

The proposed changes have split opinions, with proponents of reform including many notable musicians and artists, such as Wyclef Jean, who made an appearance in Strasbourg today. Opponents of the legislation include websites and internet presences who claim the laws will mark the end of “meme” culture and user-generated content

As for the immediate future, nothing’s going to change yet. State leaders within the EU still need to sanction the changes before individual countries start hashing out the legal minutiae of the change. 

A particular point of contention is Article 13, which, were it to come to fruition, would make platforms like YouTube liable for copyrighted material. As such, platforms would require agreements with content producers (or whoever owns the rights to the music, film or television being shared).

YouTube has taken a particularly vocal stance against the proposed change, with the firm’s CEO Susan Wojcicki taking to Twitter to voice her stance: “Article 13 could put the creative economy of creators and artists around the world at risk,” she propounded. 

Another troubling section is Article 11, known as the “link tax”, which would require publishers and aggregate sites to pay a tax to sites to whom they link. This would mean Google would need to pay to list news stories and other websites on its search engine – a prospect it is definitely not very keen on.

Back in July, the European Parliament voted to reject a new copyright directive, which included the particularly controversial Article 13. The proposed law was rejected by 318 votes to 278, with 31 abstentions. The EU’s copyright reforms are being debated this month, giving policymakers more room to hone the legal framework around copyrighted content in the internet age.  

The proposed directive on copyright encompassed a number of sections that met with stringent criticism from policy experts and digital rights groups, who decried the potential legislation as a mask for censorship – and an end to memes in Europe. At the heart of this ire was Article 13, a section of the proposed directive that centres on the use of protected content by “information society service providers” (ISSPs), which store and give access to material uploaded by users.

“By a clear majority, MEPs have rejected rubber-stamping proposals that would have forced internet companies to filter the web, and would have introduced an unprecedented tax on linking online,” said Raegan MacDonald, head of EU public policy at Mozilla. “This is great news for Europe’s citizens, its SMEs and startups, especially those in the creative sectors as, while the proposed rules were supposed to protect and support them, they would have been the ones to suffer most under the new regime.”

“The rejection, for now, of the mandate means the Parliament has another few months to get it right,” said Alyn Smith MEP, SNP member of the European Parliament for Scotland. “I look forward to supporting colleagues in that and will continue to be active in efforts to strike a balance that works for everyone.”

On the surface, the directive was seen as a move by the EU to address the disparity in revenues generated by rightsholders of protected content and the online platforms that host the content, and had been supported by a number of figures in the music industry, including Sir Paul McCartney. Exactly how it attempts to solve this, however, has proven highly controversial. At the start of June, 100 MEPs sent an open letter in opposition of the plans. This was preceded by a letter from Liberties and European Digital Rights (EDRi).

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What is Article 13?

Article 13 of the Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, to give it its full name, is an attempt to reshape copyright law for the internet age. It’s based around the relationship between copyright holders and online platforms, compelling the latter to enforce tighter regulation over protected content.

According to the Article, those platform providers should (deep breath) “take measures to ensure the functioning of agreements concluded with rightsholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightsholders through the cooperation with the service providers.”

Those measures should be “appropriate and proportionate”, and the platforms should provide rightsholders with “adequate reporting on the recognition and use of the works and other subject-matter”.

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Why is Article 13 controversial?

Critics of the proposed directive claim that Article 13 violates the fundamental rights of internet users, contradicts rules previously established by the EU’s E-Commerce Directive, and misunderstands the way people engage with material on the internet. Memes, remixes and other types of user-generated content would all be put at risk, they claim, as these could technically be seen as breaches of copyright.

Public domain organisation, the COMMUNIA International Association, says the EU’s measures “stem from an unbalanced vision of copyright as an issue between rightsholders and infringers”, and that the proposal “chooses to ignore limitations and exceptions to copyright, fundamental freedoms, and existing users’ practices”.

The Article stipulates that platforms should “prevent the availability” of protected works, suggesting these ISSPs will need to adopt technology that can recognise and filter work created by someone other than the person uploading it. This could include fragments of music, pictures and videos. If you’ve ever been on the internet, you’ll know that this ‘remix’ culture is a key part of how online communities function. The worry is that Article 13 will hinder this, and create a type of censorship that ignores nuances in how content can be adopted, quoted or parodied.

Who is supporting Article 13?

A number of figures in the music industry have come out in support of the new copyright law, arguing that the framework would protect the rights of artists over their creations. Former Beatle, Sir Paul McCartney, has published a letter urging MEPs to support the copyright mandate.  

“Today, some user-upload content platforms refuse to compensate artists and all music creators fairly for their work while they exploit it for their own profit,” reads the letter.

“The value gap is that gulf between the value these platforms derive from music and the value they pay creators. The proposed Copyright Directive and its Article 13 would address the value gap and help assure a sustainable future for the music ecosystem and its creators, fans and digital music services alike.”

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UK Music CEO Michael Dugher has also come out in support of the copyright law, accusing Google of “behaving like a corporate vulture feeding off the creators and investors who generate the music content shared by hundreds of millions on YouTube.

“Instead of mounting a cynical campaign, motivated entirely out of its self-interested desire to protect its huge profits, Google should be making a positive contribution to those who create and invest in the music. MEPs should ignore the big money lobbying from big tech and back fair rewards for creators.”

Robert Ashcroft, CEO of PRS for Music, similarly argues in a blog post that internet giants such as Google have “whipped up a social media storm of misinformation about the proposed changes in order to preserve their current advantage”.

Who is objecting to Article 13?

Last month, more than 70 leading technology figures penned a joint letter condemning the Article 13 provision in the potential legislation – warning it could break the internet as we know it.

Among the signatories is the inventor of the World Wide Web, Tim Berners-Lee, Wikipedia co-founder Jimmy Wales, and internet pioneer Vint Cerf. Together with the Electronic Frontier Foundation (EFF) and a gamut of other experts, they warn Article 13 “takes an unprecedented step towards the transformation of the internet, from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.  

The letter highlights the cost of putting automatic filtering technologies in place to fulfill the new copyright rules, which they argue will hinder European startups and SMEs from competing with US firms. They draw particular attention to the effect of Article 13 on internet users, who would face a barrier to uploading and remixing everything from music and videos to computer code.

According to the copyright initiative Copybuzz, the law could also massively obstruct digital startups in the EU: “Even if they are not required to implement an online censorship system immediately, new companies will have the threat of mandatory upload filters hanging over them as they grow.

“Why would startups choose to operate under these terms in the EU when they can avoid the problem by setting up a company in jurisdictions with laws better-suited to the digital age? Similarly, why would venture capitalists risk investing in new EU companies, which will be hamstrung by a requirement to filter everything once they grow beyond a certain size?”

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There are also concerns Article 13 contradicts the EU’s E-Commerce Directive, which takes a different approach towards ISSPs’ liability for hosting services that store information provided by users.  

The Max Planck Institute for Innovation and Competition has previously warned that: “Some requirements contained in Article 13 can enable abusive behaviour, thereby threatening freedom of expression and information”. Last October, 56 leading academics published a set of recommendations on the proposed directive, including claims that Article 13 is  “incompatible with the guarantee of fundamental rights and freedoms and the obligation to strike a fair balance between all rights and freedoms involved”.

In the open letter by Liberties and EDRi, published back in October, the campaigners wrote: “Article 13 of the proposal on Copyright in the Digital Single Market include obligations on internet companies that would be impossible to respect without the imposition of excessive restrictions on citizens’ fundamental rights.” It states that by going ahead with Article 13, and filtering content in the ways that have been proposed, would violate the freedom of expression set out in Article 11 of the Charter of Fundamental Rights. 

YouTube’s changing relationship with Article 13

The divisive Article 13 did not find support from YouTube CEO who warned that the company would have to block uploads from EU countries if the Article was adopted.

The Article would have been a large financial burden for YouTube, making them liable for all copyright-infringing content on their service. This motivated CEO Susan Wojcicki to suggest the company wouldn’t want this financial burden, and would instead stop EU citizens uploading content.

However it seems now this position has been reversed. Julia Reda, MEP for the German Pirate Party, reported that Wojcicki has made statements to suggest that YouTube would support upload filters for video content. This would build on the platform’s existing ContentID system and prevent any copyrighted material being uploaded.

This would be a huge blow to the many YouTubers who perform music, review films, or in other ways use assets that belong to others.

YouTube’s stance on upload filters makes sense since, as Reda explains, YouTube already has this software. If upload filters were mandatory for video services, YouTube would be ahead of the competition with its advanced system and would even be able to sell this software to its competitors.

However YouTube has shown itself to keep changing its mind on Article 13. In early December YouTube launched #SaveYourInternet, a campaign to get its community talking about Article 13. It released a video explaining the law and how it could affect the platform, which was displayed promintently on the home page. This meant anyone could see it, from avid YouTube fans to kids watching cartoons or older audiences looking for knitting tutorials. This was an attempt to increase the audience who could voice their concerns at Article 13.

What is the next step for Article 13?

On 5 July, MEPs rejected the copyright directive. After the vote, the legislation will be debated in closed-door discussions between EU legislators and member states.

The impending vote on the legislation will be held during afternoon plenary session on Wednesday, 12 September. 

A final note in terms of the UK is the uncertainty of what Brexit will mean for the directive. The directive is intended to act on copyright in the digital single market, so presumably, any impact on the UK would hinge on the country’s relationship with that entity. In a nutshell, it’s too soon to tell and will rely on the larger outcomes of the Brexit negotiations.

Lead image credit: Thomas McMullan

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