Dec 17, 2018
The EU’s Article 13 Could Ruin The Internet As You Know It
A big, ambiguous regulation that will likely have unintended consequences
The internet is where old things become new. Spend just a few minutes on popular social publishing sites like Facebook, Twitter, YouTube, Reddit, or Instagram, and you will find countless examples of everyday people having fun with transformative content. Internet culture made a Rick Astley hit a running joke everyone up to the president was in on. Thousands of people used a single frame from a children’s TV show to comically express frustration. Adoration of video games inspires fans to share their own editions.
Despite the joy countless internet users receive from transformative content, the European Union’s proposed Directive on Copyright in the Digital Single Market — more specifically Article 13 — threatens to ruin that experience. Despite rhetoric from some copyright holder alliances, especially within the music and film industries, Article 13 is a poorly written regulation prone to abuse. If it passes the EU’s trilogue with its current language, the internet will never be the same.
Principles of Digital Copyright
Understanding Article 13 requires some knowledge of the legal landscape in both Europe and the United States. If you are American, all your favorite social publishing sites are protected by two key legal principles: fair use and safe harbor. Fair use promotes freedom of expression by allowing some use of copyrighted materials by parties who do not hold the copyrights. If you’ve ever seen videos emphasizing they are using music, movie clips, or other media “for educational purposes,” they are appealing to fair use, which also protects unlicensed copyright use in commentary, criticism, parody, news reporting, and research.
Of course, plenty of people have tried to use social publishing sites in ways that violate fair use. At any given moment, a YouTube visitor might find episodes of a syndicated sitcom or a recorded performance of a Broadway play. But in the United States, YouTube is not legally culpable for its users’ copyright violations. The Digital Millennium Copyright Act (DMCA) created a “safe harbor” for social publishing platforms. This protection allows social publishing platforms to focus on fostering free, creative, value-producing expression without constant fear of paying damages.
These sites do, however, have a responsibility to remove offending content. Copyright owners, such as the television network with the rights to the sitcom, can issue “takedown notices” to social publishing entities when they find violations of their copyrights, and the site will act as an intermediary to remove the content and discipline the offending users. While imperfect — sometimes a party wrongly claims copyright infringement and the intermediary still takes down the content — the law itself offers relatively robust protections for transformative content creators.
America’s fair use protections are intentionally broad. Commentary, criticism, parody, etc. are seen as examples of transformative work. New kinds of transformative works can develop over time — no one could have foreseen the rise of memes or vlogs when these regulations took shape in the 1990s. By leaving the list of media protected by fair use open-ended, content creators can safely explore developing forms of transformative work.
Not so in Europe. The EU has a principle called “permitted use” rather than fair use, leading to regulations more stringent than those in the United States. As the wording implies, content creators are not allowed to use material without explicit permission. The EU’s 2001 Copyright in the Information Society Directive grants parody, quotation, private copying, and classrooms exception to copyright laws. Any uses that cannot be placed in these four categories are expressly prohibited.
One way to think about the difference between permitted use and fair use is that permitted use cares solely about the form of copyright use, while fair use considers the user’s intent. The best way to explain the nuance between these copyright laws in Europe and the United States is to look at an example.
“We Are Number One,” named 2016’s “Meme of the Year” by Reddit’s top meme subreddit, is a meme based on the children’s television show LazyTown. “We Are Number One” memes mostly consist of material from the original music video, an anthem of sorts for the show’s villain, posted on the LazyTown YouTube account. For example, one video speeds up every time “one” is said, and another inserts other meme references. The game was finding how to make an already quirky video more comedic.
American regulators might look at these videos and find they technically contain unlicensed copyrighted material, and they do not clearly fall into commentary, parody, or other categories in existing fair use law. But it is also clear that these users are not simply republishing LazyTown as their material. Rather, these new videos contribute to a comedy culture the original video never intended to reach. Because fair use doctrine is broad enough to evaluate intent, it can apply to developing media formats that don’t neatly fall into categories created in decades past.
To deem whether a video violates copyright, EU regulators simply look to the Copyright Directive’s list of permitted uses. If they see a “We Are Number One” meme, regulators ask if it is a parody. It doesn’t have the “spirit of creative work” or social commentary like EU law expects of parody, so their answer likely would be no.
Is it a quotation? For classroom use? Is it used privately? These memes don’t fit into any of these categories. If regulators agree, that is the end of the discussion — there is a copyright violation. EU copyright legislation does not match the dynamism of the internet.
Article 13 Makes Europe’s Freedom of Expression Problem Worse
While freedom of expression already has a problem in Europe relative to the U.S., Article 13 would restrict it further by removing the principle of safe harbor from European digital copyright law.
In earlier drafts of Article 13, lawmakers referenced “proportionate content recognition technologies” as a way for content sharing services and copyright holders to collaboratively remove wrongfully shared content. If this sounds familiar, it should — these sites already play the role of intermediary, as described above. Social publishing sites have algorithms designed to detect wrongfully uploaded content automatically. Through automated content identification, Facebook can warn users of potential copyright violations when extended portions of copyrighted songs are used in videos uploaded to the site, and YouTube can quickly take down movies and TV episodes users may try to sneak online.
If this language remained in Article 13, the new regulation would do little more than hold social publishing sites more accountable and force smaller websites — such as DailyMotion relative to YouTube or Nuzzel relative to Facebook — to implement similar content identification practices. But the version finalized by the European Parliament in September removed the content recognition clause, keeping the directive’s language around copyright enforcement vague. All that remains is a charge to the Facebooks, Twitters, Reddits, Tumblrs, and YouTubes of the internet to “cooperate in good faith” to remove copyright infringements from their websites.
Without any clauses articulating what it means for platforms to act “in good faith” to protect copyright holders, it is likely copyright holders would have much more power over content sharing platforms in an Article 13 world. It is unreasonable to believe EU courts would accept less copyrighted content recognition and removal than what these platforms currently have as acting in good faith toward copyright holders.
In other words, the vagueness of the Directive does not allow social publishing sites to stop automatically identifying copyrighted material. On the contrary, copyright holders would have to prove only that a content sharing platform is not defending their copyright enough. Under Article 13, social publishing platforms would have a significantly greater legal responsibility to defend the copyright holders over their users.
It is impossible to specify what kind of restrictions courts might allow with the “good faith” language in the Directive, but as enforcement of these copyright rules grows more stringent, social publishing sites will likely become less user-driven. If the intermediary sites must become more and more afraid of users using copyrighted material without permission — if they must increasingly err on the side of assuming infringement — then the share of content on social publishing sites held by typical users will decrease, and the portion of material from larger, copyright-holding firms will increase.
A shift away from user-generated content doesn’t just translate into fewer memes for your social media feeds. Careers have been built off social publishing sites. “Soundcloud rap,” with its sampling tropes, is considered its own music genre, and aspiring producers post remixes to develop followings. In the video realm, many creators have reached enough viewers to build careers from YouTube advertising revenue.
Like it or not, the free expression culture of the internet has tangibly changed lives. Not only have we found new ways to entertain ourselves, but we have found new opportunities to share creativity with others.
Big Media vs. Internet Users
EU lawmakers chose vague, potentially destructive wording when a specific, guiding clause was on the table. Given the rhetoric pro-Article 13 lobbyists use when advocating for the Content Directive, the casual observer might assume copyright holders would now oppose the measure because they want a provision specifying content ID algorithms on social publishing sites. But lobbyists for copyright holders — especially from the music industry — continue to push for the Directive despite the missing clause.
Pro-Article 13 voices insist that fears about suppressing user-generated content are misguided, and that the Directive only serves to protect intellectual property that rightfully belongs to bigger companies and creatives. If they actually cared about social publishing users, though, they should support more specific wording that guides how copyrights will be protected. Vaguer legal phrasing means fewer checks on power. And even if most musicians or movie makers do not think they will hawkishly litigate transformative content, they must recognize that unchecked power will lead to larger media groups dominating social publishing platforms.
To imagine how this process might occur, consider the legal battle between 1990s rap icon Lord Finesse and then-upstart rapper Mac Miller. The late Miller sampled “Dream of You” by jazz pianist Oscar Peterson in a song he released for free in 2010. In 2012, Lord Finesse filed a lawsuit against Miller for $10 million because Finesse also sampled “Dream of You” in a song he published in 1995. The suit claimed Miller “copy[ed] the music from a song written, produced and performed by Lord Finesse, a hip-hop legend, chang[ed] the title and then distribut[ed] it under his own name in order to launch his music career.”
Many in the music industry itself found the lawsuit questionable, noting that sampling has always been commonplace in hip-hop, and some argued it was hypocritical for Finesse to sample a song and claim it belongs to him. Despite expectations Lord Finesse would not win a fair use case, the two rappers settled out of court for an undisclosed sum.
With greater legal leeway to litigate potential copyright infringement, European copyright holders will have greater incentives to attack smaller, independent, user-generated content on social publishing websites. If the lawsuit goes through, copyright holders have a greater chance of winning the case because they will have to demonstrate only that there was no action taken in good faith to remove infringing material.
But because the film studios and music labels tend to have much greater resources than individual users on social publishing platforms, smaller creators may not have means to fully defend themselves and choose to settle, losing money and, potentially, their content. In other words, because Article 13 as presently worded will make it harder for copyright holders to lose lawsuits, they have greater incentive to sue transformative content creators.
In fairness to copyright holders, litigation might not come from a desire to dominate internet content. Profit-seeking entities may simply be trying to defend their intellectual property and its profitability however they can. And many of the artists advocating for Article 13 won’t abuse this unchecked power. But that does not mean some other artists, lawyers, and executives in the industry won’t jump at the chance.
Transformative content creators will also respond to incentives. If their remix, educational video, or meme is more likely to get them in legal trouble, they are less likely to create the material in the first place.
Without the force of user-generated content in Europe, YouTube will become another venue for major production teams to gain eyes, compounding its current direction towards becoming a top-heavy platform. Soundcloud will become another arena for established, connected musicians to publish their work. TikTok, an app popular among adolescents that revolves around sharing short karaoke videos, might lose its market entirely.
And it is no accident Article 13 earned the “Meme Ban” moniker from the internet community — images are also intellectual property subject to litigation. One of the most spontaneous forms of comedy of this generation would be at the mercy of media companies’ legal teams.
Why Non-Europeans Should Care
As the internet and the global economy become increasingly interconnected, regulation in Europe will impact content creators across the globe. Even if you are not European, your favorite social publishing sites operate in the EU, one of the world’s largest markets. While companies can sometimes customize their product to different geographic audiences, such as with cars, the borderless internet makes such practices difficult. As such, to avoid getting in trouble with EU courts, social publishing platforms would have to err toward operating in line with the more stringent regulations.
EU tech regulations have had global impacts before. Privacy policy updates flooded American and other non-European email inboxes back in May, thanks to the EU’s General Data Protection Regulation (GDPR) — which requires companies to increase transparency improve measures protecting user data — going into effect. Even though GDPR was an EU-only regulation, online services operating internationally found it safer to update their privacy policies across the board.
Social publishing platforms have indicated Article 13 would require a similarly comprehensive response. In a blog post encouraging users to contact their MEPs about Article 13, YouTube CEO Susan Wojcicki notes the current language of the Content Directive makes platforms directly liable for content on their websites. If that interpretation holds in court, Wojcicki claims hosting content from smaller creators — the non-copyright holders — would be too risky, and websites would only be able to afford to host major companies, whom YouTube is certain hold all the intellectual property rights. If that happens, transformative content on YouTube, and the people who make their living producing it, would be in jeopardy.
Essentially no one in the social publishing sphere is arguing that online content creators, as well as their audiences, want to take away intellectual property rights from media companies. But when tackling a force as big as the internet, legal phrasing matters. Maintaining the vague phrasing risks turning digital copyright into a “guilty until proven innocent” arena, prone to abuse by self-interested media groups.
Going Forward
Although Article 13 has passed the European Parliament, it is not too late for policymakers to fix this language problem. The Content Directive is currently in trilogue — talks between the Parliament, the EU Council, and the European Commission — that will finalize the Article’s wording. The EU is expected to vote on a finalized form of the Copyright Directive in early 2019, after which EU countries will vote on the measure individually.
In the remaining weeks before the EU finalizes the Directive, internet users and public officials can still influence the deliberative process. The door for clearer wording and checks on copyright holders appears to still be open . While Parliament representatives remain committed to keeping platforms directly liable for copyright infringements, the Council has proposed greater and better-defined leeway.
Because the deliberative process is ongoing, the damage may yet be softened. Internet users in Europe can contact their MEPs and explain why careful phrasing of Article 13 is crucial for a free, creative, productive internet. A petition of about 4 million signatures at time of writing hopes to show MEPs how concerned the global internet community is about current drafts of the Content Directive. Finally, internet users should learn more about the copyright problem and discuss it with politically active friends and family. Educated citizens can produce ripple effects of activism.
Article 13 would compromise the web’s culture of spontaneity and innovation, turning content sharing platforms into another distribution channel for big media companies. The internet has given rise to a culture unlike anything else on the planet, but it will need help from users, activists, and public officials alike to survive the Copyright Directive intact.
