Tuesday 26 March, 2019
article 13

The internet has completely changed how we consume and share content.

Much of European IP law was written before we were online, and it has become outdated as we stream, share and download with increasing frequency.

With this drastically changing landscape has to come a change to the law to make it more comprehensive and relevant. To answer this problem, the European Parliament Committee on Legal Affairs put together a proposal to create laws which better reflect how we consume content in the 21st century.

In September 2018, the EU passed the Copyright Directive, which was presented to the European Parliament in February 2019. As of this morning (Tuesday 26th March), the European Parliament passed the legislation by 348 votes to 274.

The law has attracted praise and criticism from content producers, publishers and the platforms themselves, and could have significant impact on how we produce, market, sell and share content online.

What is it, and why do you need to know?

What is it?

Broadly speaking, the EU Copyright Directive was set up to ensure that content creators receive credit and compensation when their work is used or distributed. It is intended to protect the copyright of content creators (musicians, coders, writers, designers, photographers, film-makers, etc) and stop the distribution of their content without permission.

There are two key articles in the proposed law which have caused the most controversy. Article 11 and Article 13.

What is Article 11?

This deals specifically with platforms which host news stories from other publications. A search engine or social media platform may display the headline and first sentence from a story, giving the news and context to a story, but generating no clicks to the content creators’ website.

Article 11 covers a so-called “Link Tax”, content creators such as news outlets could charge a fee when platforms host their stories. This has largely been welcomed by media publishers, and has also prompted suggestions that search engines and social media companies will create their own newsrooms in response.

What is Article 13?

Websites which host user-generated content – videos, images, music, code – are to be legally liable for the copyrighted material they host.

The article also compels any website to remove content which infringes copyright and show that they have taken due care to avoid copyrighted material being uploaded.

What’s the point?

The article is designed to “foster the development of the licensing marketing between rightsholders and online content sharing providers. These licensing agreements should be fair and keep a reasonable balance for both parties. Rightsholders should receive an appropriate reward for the use of their works or other subject matter.”

In short, if you’re a photographer, and your photo is used on a company website, you should be able to claim a usage fee. If you’re a musician, and your music is used to soundtrack online videos, you should be entitled to licensing.

It is intended to put more control in the hands of creators. “Host” websites should not be able to reap the rewards of shared content without taking responsibility for what is being shared.

Who does it apply to?

Anyone who is considered an “online content sharing service provider.” Broadly speaking, that covers almost every social media platform, and could even include websites, although the focus on websites is largely on pages where “the average number of monthly unique visitors of the service providers exceeds five million, calculated on the basis of the last calendar year.”

There are exceptions. Charitable foundations such as Wikipedia, online auction sites, cloud-based storage services and “communications services” will not have to comply with the new legislation.

Why the controversy?

Articles 11 and 13 have caused the greatest controversy.

Critics – which have included journalists – have suggested it may result in less news shared on social media. Local news outlets believe they will be hit hardest, as platforms are more likely to pay for news from internationally recognised outlets than local ones.

There are also those who have dubbed Article 13 the “meme ban”, highlighting that huge areas of internet culture including memes, gifs, remixes and sampling would be under threat, as they rely on repurposing copyrighted content.

Should this happen – according to critics – it would stifle the creativity that abounds online.

The wording of Article 13 clearly states that it shall “in no way affect legitimate uses” of copyrighted content, which would theoretically allow the continued use of copyrighted material for “criticism, quotation or review” or “caricature, parody and pastiche”. However, if host websites are going to be responsible for the content posted on their site, they may enforce more draconian censorship laws, or aggressive algorithms, to ensure they don’t fall foul of the new legislation.

Who is backing it?

A series of high-profile musicians have been vocal in their support, along with over one thousand licensing and performers’ rights groups.

Most (but not all) of the larger media outlets companies support the bill, as they believe it will give them greater control over their intellectual property. Groups such as the Society of Authors are strongly in favour, as they believe it brings online content in line with “the offline norm.”

The bill has also found supporters amongst groups who feel websites and platforms should be treated as publishers rather than simply hosts and must be responsible for every piece of content that is posted on their site. It has a wide political support across Europe, particularly in France and Germany.

Who is against it?

The second-largest group of signatories in European history, after this week’s Brexit petition. Over four million signatures have been gathered in a petition against the amendment.

The biggest opponents are those who believe they are going to be hardest hit. The big video hosting sites have been the most vocal in their objections, claiming the law will put off content producers from uploading new material, and that the practicalities of licensing every piece of content on their sites is impossible.

The gaming community are also against the article. Videos of games are uploaded, shared and commented on billions of times, and would not fall under the category of criticism, review, parody or pastiche. All of that material is copyrighted. The global e-sports business is projected to be worth over $1Bn in 2019 and is heavily reliant on streaming for marketing and promotional purposes. That too could be impacted by the change in the law.

There has also been support from unexpected places. The collected football leagues in England, Spain and Germany have voiced their concerns at the proposed deal, suggesting that it does not do enough to protect existing rights holders.

Finally, the proposed law doesn’t have unilateral support from politicians. German MEP Julia Reda has been the leading critic, and believes the article is unworkable and unenforceable. She has called today’s agreement “a dark day for internet freedom.”

Will it apply to the UK post-Brexit?

Assuming the UK leaves the EU with some form of deal, Article 13 would apply throughout any transition period. Following that, it would theoretically be up to any incumbent UK government to decide whether to apply or revoke this law. However, if platforms are forced to self-censor across the EU, many will opt against making an exception for other countries in Western Europe.