Article 13 - Unlucky for some

Published

The proposed amendment to the European Union Copyright Directive was approved by the European Parliament on 12th September 2018.  Article 13 aims to prevent copyrighted content from being shared online without express agreement from the creator. Internet platforms like YouTube, Instagram, Facebook, Snapchat and Reddit allow their users to upload and access user-generated content such as official music videos, educational videos, memes, mash-ups, fan music covers and parodies. The issue is that some of the content contains visuals, images and sounds that that are subject to copyright.

Article 13 scraps the current notice and takedown process used by platforms.  Instead, they will be expected to block new and existing content containing disputed copyright information. Access to content generated by users from non-EU countries, like the US, may also be restricted if this breaches copyright.  Crucially, it will be the platforms, not the users, that will be liable for copyright infringement at the moment of upload.

Digital free speech campaigners and associations such as European Digital Rights group have criticised the Article 13 as extreme. However, artists, creators and other rightsholders have welcomed it as necessary to protect their work. 

Practically, when Article 13 receives final approval, the amount of content on video sharing websites will likely decrease – but the extent of this remains to be seen. It is predicted that a cautious and preventative strategy will be adopted by platforms i.e. where there is any doubt in respect of disputed copyright material, they may simply stop videos from being uploaded altogether rather than face the risk of legal action.  This could potentially have a negative impact on legitimate user-generated content such as parodies and memes, which are generally permitted under the right to parody and satire (InfoSoc Directive 2001/29).

Notably, the previous draft of Article 13 contained the more stringent proposal for platforms to have upload filters to automatically delete content violating copyright. It is unlikely that a filtering algorithm would be sophisticated enough to distinguish between content intended as a meme or an expression of humour and content that genuinely infringed copyright.  This proposal has since been removed however, some commentators have said the “watered-down” version of Article 13 draft still threatens free speech. 

Article 13 is controversial.  It attempts to reconcile the difficult balance between freedom of speech and protecting creators and artists. This has become increasingly difficult in an age where sharing and accessing videos and content has never been so easy.

The amendments to the Copyright Directive will receive the final vote January 2019. For more information visit the Intellectual Property section.