Digital and online copyright is changing.
A new directive is now in place, namely “The European Union Directive on Copyright in the Digital Single Market” – the full text of which can be read here. Its purpose is to clarify and ensure the legality of everything that is posted or shared online. However, the first steps towards the introduction of these guidelines have already been rocky. The changes featured in Article 13 of the directive, in particular, are proving controversial for many.
But what is Article 13 of this new legislation, why is it so heavily debated and will Article 13 affect the UK as it prepares to leave the EU?
What is Article 13?
The EU’s Article 13 of the European Union Directive on Copyright in the Digital Single Market focuses on copyrighted material being uploaded to online public spaces – and the requirement for social media platforms and other major sites to take greater responsibility for the illegal sharing of this material – implementing means to filter or remove it as extensively as possible.
It’s currently down to the person uploading the material to ensure it does not breach copyright, and while sites like YouTube will remove material if its creator finds and reports it, there is currently no filter in place to prevent it from being shared in the first place.
While the exact means and strength of the way in which this legislation will be put into effect will depend on each EU member state, there have already been powerful arguments made both for and against the changes.
Arguments For Article 13
The majority of those in favour of Article 13 are content creators themselves, who welcome legislation that prevents the use of their material.
The UK’s own Alliance for Intellectual Property and Proponents have spoken out in its favour, as have EU-based groups of artists and media creators. They argue that the directive will channel revenue away from the corporate bodies behind major sites and towards the independent content creators who generated the work in the first place.
A #YestoCopyright open letter featuring signatures of 270 major companies representing, in their own words, “authors, composers, writers, journalists, performers, photographers and others working in all artistic fields, news agencies, book, press, scientific and music publishers, audiovisual and independent music producers” was published in mid-March in support of the directive.
This side of the argument places considerable weight on the flexibility of the directive, as its actual implementation will depend both on its interpretation by each site and by each individual body of the EU; Article 13 simply provides guidelines, and those in charge may decide on its strictness within their jurisdiction.
We spoke with Theo Watts, who’s a Senior Copywriter at Social Chain. He explained his reasons for opposing the new legislation. “In many ways, Article 13 is flawed and doesn’t take into account the makeup of the Internet and social today. Yes, big US tech firms, which the EU is taking aim at here, are powerful and should be paying creators a fair deal. But to undermine the freedom that many, including creators, enjoy is a step in the wrong direction.”
“Take pop covers, lip syncing videos and crazes on YouTube, for instance. It’s not uncommon for songs that have been parodied to go viral and storm the charts as a result of these videos.” He explained.
“Article 13 threatens this because no one is aware whether most tech filters will be advanced enough to tell parody—which is protected under copyright law—from plagiarism, which obviously isn’t.”
Arguments Against Article 13
On the other side of the argument, one major concern voiced by those who signed open letters and were moved to petition against Article 13 – numbering in the millions – is that user-generated content such as memes and remixes would be virtually impossible to retain as part of internet culture.
A further argument states that, because of the sheer quantity of information that is shared on major platforms, the only way the new legislation can be effectively implemented is via the creation of “blanket” automated AI filters, meaning that along with actual copyrighted material, something as simple as a hyperlink may prove more difficult to share, and genuine original material may be scrutinised and potentially rejected by AI with faulty algorithms.
Jacob, who’s an Associate at Brandsmiths explains that “the fear around the banning of memes and the restriction of free-speech is probably misplaced. The law already has mechanisms that protect both of these freedoms of expression, which will continue to apply post-Article 13.”
“Clearly, there are legitimate concerns around how Article 13 will be interpreted and implemented by the likes of Twitter and YouTube, and it remains to be seen what solutions they come up with to the Article 13 problem. However, the proliferation of infringing content across these platforms needs to be slowed down, as at present the law and the system as a whole is failing to properly protect creatives and content creators.”
Other opponents of Article 13 – Youtube users and creators, video game streamers, Instagram and Twitter-based influencers and others who benefit from the freedom the internet currently allows them, whether financially or otherwise – see it as a step towards the silencing of critics, some of whom may share copyrighted work in order to analyse it on a public platform, and the limiting of self-expression for those who utilise pre-existing material to create something “new”.
Will Article 13 Affect the UK?
At present, with no exact arrangement in place for the UK’s EU exit, it is not known to what extent, if any, the new directive will need to be implemented in UK law.
However, if we leave the EU with a deal, the legislation is likely to apply to us during any transitional period. At present, all EU members states have two years to implement Article 13 rules, so there is a window of time for our government to decide how exactly we are to interact with the directive.
At present, a site needs to have existed for less than three years and have a turnover of less than €10 million and welcome fewer than 5 million new, individual users annually. While this limits the number of platforms that will be affected by Article 13, it still includes a vast amount.
Some may see this as a positive, as sites will be forced to be more considerate of the independent bodies who would otherwise miss out on revenue, while others argue that the sites in question will not have the capacity to use objectivity when filtering their content, resulting in broad rejections.
In truth, the only way of understanding Article 13’s impact will be to wait until each EU member state’s individual implementation of this directive. As of now, all we can do is to inform ourselves of each step in the process.