What Is Article 13 of the EU Copyright Directive?

by Bobby Chernev

Imagine a world where online memes have been banned. A world where you can no longer access Google News or Wikipedia.

Does that sound like something straight out of a dystopian sci-fi movie?

Many fear this may well be the world of tomorrow. Others dismiss this as sensationalist doomsday talk. But whatever their opinion – people are engaging in heated debates all over the world.

Now, is this the end of the internet as we know it, or is it a storm in a teacup?

You might be wondering:

What is Article 13 of the EU copyright law, and how does it affect the internet? Will it affect influencers and other marketing efforts, or will it decimate meme usage? Will Twitch streamers need to rebrand their content?

Turns out it has no effect at all – not on its own, at least. Still, it manages to set in motion events that will silently affect our online experience.

How does that work? Well, this article is not really a law. It’s a directive.

And it’s no longer Article 13. It’s now Article 17. And, oh, by the way, it won’t affect anyone until 2021.

It’s a legitimate bureaucratic nightmare! The good news is – by the time you’ve finished reading this, you’ll have some clear cut answers.

But first things first.

What Is an EU Directive?

The official title of this contentious piece of legislation is Directive of the European Parliament and of the Council on Copyright in the Digital Single Market.

An EU directive is a type of secondary legislation, which “binds member states as to the objectives to be achieved within a certain time-limit.

However, it leaves the actual form and wording of the law to the national governments of the 28 member states. So, in order for the directive on copyright to become the law of the land in, say, Austria, the Austrian Federal Government has to pass appropriate legislation.

The Austrian law is also likely to differ from that in neighboring Germany or Slovakia.

But why do we need a new EU copyright law at all? And why now of all times?

Quite simply:

The emergence of social media and the rise of online media giants has changed the rules of the game. They have made the existing EU laws, passed in accordance with a 2001 directive, largely obsolete.

The evolution of digital technologies has changed the way works and other protected subject-matter are created, produced, distributed and exploited,” reads the opening sentence of the new directive.

As for the timing, this directive has been in the pipelines since 2016. But when is Article 13 happening?

Following lengthy debates and multiple text alterations, the European Parliament and European Council approved it on March 26, 2019, and April 15, 2019, respectively.

In the European Parliament – which is elected directly by EU citizens in European elections contested every five years – the vote passed with a majority of 348 votes to 274.

In the European Council – where each member state has a single vote – five countries (Italy, Finland, Sweden, Luxembourg, and the Netherlands) voted against the directive. A further three countries (Belgium, Estonia, and Slovenia) abstained, with the rest voting in favor. This includes the UK, which is currently set to leave the EU on October 31, 2019.

The national governments of the member states have two years to pass appropriate legislation in line with the directive.  

Now, the full directive is quite lengthy and quite possibly the cure for insomnia. In any event, much of it is fairly straightforward. But as with most things, the devil is in the details – or in this case, articles 11 and 13.

What Is Article 13?

Article 13 of the Directive on Copyright in the Digital Single Market – which is now Article 17 of the final version of the text – states that content-sharing companies and services must license copyright-protected material from the appropriate rights holders.

Companies which fail to comply may be held responsible in law.  To avoid this, they can demonstrate they’ve made best efforts to get permission from the internet copyright holder or quickly removed infringing material.

Now, there are some exceptions.

Article 13 does not apply to startups that:

  • Have been active for less than three years
  • Have an annual turnover of less than €10 million
  • Have less than 5 million monthly unique visitors

You may have seen Article 13 described as a “meme killer.” But is the EU banning memes for real?

Not quite.

Article 13 says it shall “in no way affect legitimate uses.” In other words, users will still be able to use bits of copyright-protected material for the purpose of criticism, review, parody, and pastiche.

However, there are some serious technical issues at work here – and those who oppose the EU copyright directive Article 13 are quick to point them out.

But before we get to them, let’s look at a related piece of legislation – Article 11, nicknamed the “link tax.”

What Is Article 11?

Article 11 of the Directive on Copyright in the Digital Single Market – which is now Article 15 of the final version of the text – states news services which provide snippets and/or links to news stories should pay the original outlet a certain fee.

So, if Google News wants to include in its feed, say, a story about a traffic accident on the A38 motorway from the Plymouth Herald, it would have to pay that particular newspaper for the privilege.

The aim of Article 11 is to help news outlets generate money from the content they create. Or, as paragraph 32 of the proposal for the directive puts it somewhat grandiloquently: The organisational and financial contribution of publishers in producing press publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry.”

Clearly, the two articles are well-intentioned. And plenty of people and organizations find reasons to celebrate.

Who Is in Favor of Article 13?

As soon as Article 13 passed, Guy Verhofstadt, Belgian Member of European Parliament (MEP) and president of the pro-European ALDEGroup, welcomed the vote in the European Parliament, saying: “We have to make our own internet model in Europe as fast as possible so there is a choice for people and to reduce American monopolisation [of data controlling].”

What’s all that about?

We live in a time when Europe and the US appear to be drifting apart and old alliances are being questioned. The inevitable logic goes that the EU needs to do more to preserve its core values – those of respect for human dignity and human rights, freedom, democracy, equality and the rule of law.

The Economist’s current Charlemagne columnist, Jeremy Cliffe, described this as a typical example of what French President Emmanuel Macron, another supporter of the directive, calls “the Europe that protects.”

European publishers are also in favor. On April 15, 2019, the European Magazine Media Association (EMMA), the European Newspaper Publishers’ Association (ENPA), the European Publishers’ Council (EPC), and News Media Europe (NME) issued a joint statement in which they welcomed the vote in the European Council and called for swift implementation of the directive at national level. Christian Van Thillo, Chairman of the EPC, said: “This important reform will help make the EU copyright regime fit for the digital age without stifling digital innovation.”

When it comes to the question of what is Article 13 and who is in favor, we should also mention the entertainment industry. Singers like Paul McCartney, Placido Domingo, and Adele, and film-makers like Mike Leigh have also come out strongly in support of Article 13.

What’s more, in a letter to the Guardian from July 2, 2018, a group of UK music industry leaders argued that the directive is not about censorship, but about support for creators and users, “about copyright, and specifically about the rights of creators versus those of the internet giants, and whether or not the internet functions as a fair and efficient marketplace.”

But not everyone agrees with these positive assessments.

Who Is Against Article 13?

Julia Reda, German MEP for the Pirate Party, echoed many observers’ fears when she tweeted “Dark days for freedom” after the Article 13 vote in the European Parliament.

In fact, there was plenty of opposition in the lead-up to the vote. “In punishing tech giants, the EU has made the internet worse for everyone,” wrote Guardian columnist James Ball in September 2018.

Jim Killock, Executive Director of the UK-based Open Rights Group, went even further in an article for the Independent, claiming that, if implemented, the directive “will change the face of the internet forever, from an open platform to a place where anything can be removed without warning.”

Internet pioneer Tim Berners-Lee and Wikipedia founder Jimmy Wales have opposed the directive for similar reasons. Italian Wikipedia actually blocked readers from its pages in early July 2018 in protest over the new copyright law.

What’s more, Google News has threatened to pull out of the EU altogether! This may or may not be an attempt to play hardball in order to secure better terms in the expected negotiations with the European Commission.

Ordinary people are also angry. In fact, 200,000 Germans took to the streets to protest against the directive in the days before the vote.

What Does Social Media Say?

In addition to the likes of Google and Wikipedia, the new copyright directive is also likely to affect social media platforms. Naturally, Facebook and Instagram users have a lot to say on the subject of the alleged EU meme ban.

On Facebook, the EU Article 13 Compliant Memes group currently has over 12,100 likes. According to its mission statement, the group wants to “prove that our internet community is so strong that we can still enjoy some high-class memes and jokes without violating article 13.”

This “EU-Compliant” memes page is even more popular, with 20,000 likes. The banter is strong with this group, which has also found a way to monetize Article 13 memes – by selling brand merchandise!

On Instagram, an #article13 hashtag search on April 17, 2019, generated a massive 45,685 posts. As you probably suspect, the vast majority were memes. “IF WE MAKE ARTICLE 13 A MEME THEY WILL HAVE TO BAN ARTICLE 13,” as the most upvoted comment to a Wired magazine YouTube video about Article 13 puts it.

Which references the potentially far-reaching implications of Article 13 and brings us to:

How Will the New Copyright Directive Affect the Internet?

The most tangible effect will be the increased use of copyright filters on websites. The technology already exists. In fact, YouTube has been using its own filter, called Content ID, for over a decade.

There’s a bit of a problem, though:

It’s expensive – especially for the smaller companies Article 13 claims to protect.

In theory, the directive aims to force tech giants to pay their fair share to smaller companies. And yet it may actually do the former a favor while raising the barrier to entry for the little guy. “In a post-Article 13 world,” writes Gian Volpicelli for Wired, “you want to be the company selling upload files.”

Which in this case means Alphabet, YouTube’s owner. The company is looking at a huge windfall from selling copyright filters to websites. The tech giants could easily afford it – out of petty cash. It’s small companies that are going to struggle.

While the potential financial cost of implementing Article 11 and Article 13 is a major concern, there are ethical considerations as well. Will the widespread use of these new filters spell the end of free speech online? Will it “catastrophically screw up how we use the internet?”

Online rights group EFF certainly thinks so: “Filters will subject all communications of every European to interception and arbitrary censorship if a black-box algorithm decides their text, pictures, sounds or videos are a match for a known copyrighted work.”

On a somewhat more cautious note, the Economist suggests “collateral damage” might be likely, citing the case of GitHub – an online code repository – which worries that open-source computer code hosted on its site might fall foul of the new filters.

Which raises another issue:

Namely – that a filter can’t tell if something is used in a sarcastic manner or not. This is why many people fear memes, too, could become collateral damage.

Well, that escalated quickly!

What Are the Geopolitical Consequences of Article 13?

And does Article 13 affect the United States?

“One result could be yet more ‘geo-fencing,’ whereby the internet becomes fragmented along geographical lines,” reasons the Economist. Severe online restrictions already exist in places like China (which has banned Facebook), Russia (which has considered briefly disconnecting from the internet), and North Korea (which has its own version of the internet).

Now, the introduction of the new EU directive will distinguish a more regulated European internet from its largely anarchic North American counterpart. “The time has now come to speak of the internets, plural,” writes Casey Newton for The Verge. “And to get around, you might just need a passport.”

On an even more ominous note, some commentators fear Article 13 is “the future blueprint of the internet,” which in due course could serve as a template for similar legislation in the US.

Notices of the death of the internet might be premature, though. It’s very early days, and we’ll have to wait and see how things play out.

And on this word of caution:

We’ve come full circle in this discussion of what is Article 13. This controversial piece of EU legislation is set to be implemented by the national governments of EU member states by 2021 – and it has some far-reaching implications. A lot can happen over the course of the next two years – so watch this space.

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