In March 2019, the European Parliament voted in favor of one of the most controversial pieces of international copyright legislation in recent history. Known as Article 13, the legislation could reshape the internet.
Many people argue that regulators don’t understand the repercussions of Article 13, while others say that it will protect copyrighted content and ensure fair pay for artists.
What exactly is Article 13, and what does this decision mean for the future of the internet?
Copyright in the Digital Age
The internet is a networked collection of computers and servers around the world sharing data and information across the globe. The openness of the internet created explosive growth that saw the once niche service become one of the world’s most critical communication tools.
Regulating the internet has always been a challenge. The internet is not located in one country, and digital services and data flow seamlessly across borders. This creates difficulty in enforcing copyright laws.
Copyright differs between countries, with some taking a much harder stance, while others mostly ignore it. The European Union (EU) currently has 28 member states, the UK’s exit—or Brexit—notwithstanding. The union represents one of the most significant trading blocks in the world, and as such its regulatory framework has worldwide repercussions.
Copyright laws are intended to encourage the production of content, art, and other media. They give legal recourse to artists and copyright holders if their work is stolen, copied, or reproduced. But copyright laws were mostly written with a pre-digital age in mind.
Advocates of copyright regulation say that it encourages innovation as creators know they will be financially rewarded for their work. On the other hand, critics have expressed their disdain for digital copyright laws due to the cost of enforcement, privatization of knowledge, and the ambiguity over what the term author really means.
With such confusion, some creators have instead turned instead to copyright alternatives like copyleft .
Current legislation has meant that the internet has never been effectively regulated for copyright. Large technology companies like Google, Facebook, and others have developed business models that operate in the so-called grey area of copyright law, where they neither host nor prevent access to copyrighted material. Article 13 aims to change that.
Copyright in the European Union
The EU is a political and economic group of countries, mostly from mainland Europe. It operates a single economic market for member states and creates a series of standardized laws that members states either must abide by or ratify into their local legal framework.
The EU has enacted union-wide copyright regulation since 1991, although various amendments and directives have since been made. Article 13, formally known as Article 13 of the Directive on Copyright in the Digital Single Market 2016/0280, is the latest attempt to harmonize and update European copyright law.
While discussions had been taking place since 2012, the election of Jean-Claude Juncker to the presidency of the European Commission saw a renewed interest in reforming copyright law. Juncker’s goal was to implement a Digital Single Market across Europe, in a similar way to the existing physical single market, to enhance the EU’s economic performance.
While the proposed directive contained many changes, amendments, and additions, two were particularly controversial: Article 11 and Article 13.
What Is Article 13?
In an attempt to force internet companies to regulate copyright, Article 13 of the directive instructs that “information society service providers […] shall […] take measures to ensure the functioning of agreements concluded with rightholders 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 rightholders through the cooperation with the service providers.”
Like many legal documents, it isn’t immediately clear what that means. However, in summary, any internet service that processes user-uploaded content—which is the majority of all online services—is responsible for ensuring that copyrighted material is not illegally shown or uploaded to their platform.
This small paragraph of text has enormous implications. It effectively demands that internet services police copyright, and build, maintain, and operate a database with which to do so. Failure to comply with this obligation would result in the company being held liable for copyright infringement.
This is a transformative change from the way the internet has developed. In fact, in the US, service providers are explicitly exempt from liability for what their users post under Section 230 of the Communications Decency Act.
All the Article 13 Memes
The definition of an internet meme is a piece of media that spreads rapidly across the internet. Memes are often edited images from popular culture, like stills from TV shows or movies. Depending on the interpretation of the law, these images could be considered infringement of copyright.
After the draft legislation was published, many critics argued the case that the EU’s Article 13 proposal would be the end of meme culture. By similar logic, popular remix culture would be lost so that could mean the end of user-generated remixes and parodies, and of the platforms that host them like YouTube and SoundCloud.
Many of the world’s most popular websites rely on user-generated content. Notably, social media sites like Facebook, Reddit, and Twitter would be affected by the legislation as their platforms depend upon it.
However, despite the potentially wide-ranging impacts of Article 13, the media explicitly framed the proposal as a “meme killer.” The debate around the regulation of memes started, ironically, as a meme. As noted on Know Your Meme, on June 12, 2018, a Reddit user posted a meme that used the words “The content you are trying to view has been banned by the EU copyright law.””
The post was heavily upvoted, and variations on that theme began to emerge. These quickly spread to other social media sites, profoundly influencing the discussion and debate around Article 13.
The #SaveYourinternet movement, which had support from the likes of Sir Tim Berners-Lee, the inventor of the web, and Jimmy Wales, the founder of Wikipedia, among others, began to use the meme killer notion as the basis for their campaign.
However, this potential impact of Article 13 would only be realized if widely-feared content filters were automatically applied.
What Are Content Filters?
The original Article 13 text was extremely vague on how internet services would regulate user-uploaded content, leading many to speculate the only feasible method would be automated content filters.
Automated content filters are incredibly controversial. They often incorrectly identify offending material. YouTube has been battling with this issue for many years. Once YouTube became the internet’s de facto video site, copyright holders began to pressure Google to remove unlicensed copyrighted content.
For a service of YouTube’s size, an automated system was required as manual detection would be impossible. However, the system regularly mis-identifies content, leading to many creators and users having their content removed unjustly. To add to this, the presumption is that the complainant (the rights holder) is correct.
The uploader has little to no say in the process.
This led to YouTube’s Content ID filter being dubbed a censorship machine. Large companies could claim that any video violated their copyright. The video could then be taken down, regardless of whether they had a valid claim, with the creator all but powerless to prevent it. This is one of the reasons to host videos on Vimeo rather than YouTube.
If the implementation of Article 13 led to the creation of automated content filters, the fear is that they would ultimately be used as a form of censorship. The size of the company further complicates the issue.
Large, predominately US companies dominate the internet. Amazon, Facebook, Google, Reddit, and Twitter are some of the largest companies in the world. They can afford to build complex databases and filters. Smaller sites without the resources to process uploads would effectively be put out of business.
This would create an anti-competitive marketplace where just a few companies control our online spaces.
Article 13 Becomes Article 17
The European Parliament approved the draft Directive on Copyright in the Digital Single Market in September 2018. After negotiations, a final proposal was presented to the parliament. This final version of the directive was approved on March 26, 2019.
This edition of the directive expanded the definitions, made concessions, and included clarifications. To confuse matters, Article 13 was renamed Article 17. Notably, the final directive made it clear which sites would be liable for copyright infringement. A service operating for less than three years, with revenues of less than €10 million, and with fewer than five million unique visitors would be excluded.
The need for filters may also have been side-stepped. Article 17 clarifies that a service must seek authorization from the rights holder to display copyrighted content. As the Electronic Frontier Foundation (EFF) notes, “Article  advocates argue that online services won’t need to filter if they license the catalogues of big entertainment companies.”
However, as the EFF also points out, the large entertainment companies don’t hold every copyright in the world. All users of the internet may generate content and hold that respective copyright. Article 17 requires that services make a “best effort” to license content. Despite all the revisions, it’s still not clear how services would comply with Article 17 without content filters.
What Happens Next?
This isn’t the first European legislation to controversially pass through parliament in recent years. The General Data Protection Regulation (GDPR) came into effect across Europe on May 25, 2018 and had far-reaching consequences.
Companies based outside of the EU still had to comply if they had users within the EU. Some even chose to implement European privacy protections to all their users.
The impact of the Directive on Copyright in the Digital Single Market will almost certainly be felt outside of Europe too. However, member states have up to two years to ratify the directive into law. So it may be a few years yet before the consequences of the legislation are truly known.
Each state may also interpret and implement the directive differently. While one country may require a specific tool or upload filter, another may not.
While this is a European matter, the outcome affects all internet users and services around the world. As we saw after the implementation of GDPR, some services blocked European users rather than complying with the law.
Notably, GDPR also impacted smart home devices as services were taken down instead of adapting to the new legislation. Whether Article 17 will have a similar effect remains to be seen.
Image Credit: Håkan Dahlström/Flickr