EMPOWERING CREATORS AND PROTECTING USERS
EMPOWERING CREATORS AND PROTECTING USERS
What is article 13 really about?
Is Article 13 invading your social feeds these days? Did you think it was a new band at first? What’s all the fuss about? Why is this particular section of the EU Directive on Copyright getting so much attention? What will it really mean for creators, platforms and ordinary users on the Internet?
These questions are hard to answer amid the exaggerations, extrapolations and downright false information that are being thrown around on the Web. Let's take a paragraph-by-paragraph look at the European Parliament's latest version, which, somewhat confusingly, is different from the texts of the Commission and the Council of the EU. You can read all three versions HERE.
BUT FIRST, LET'S BEGIN WITH A QUICK OVERVIEW
Big wins for users in article 13: did you know that....
... you’ll be able to upload that video with a Lady Gaga track you made without fear because platforms will be responsible for the use of copyright protected material in content posted by users. Your uploads will be covered by the license the platform negotiates with rights holders.
...If you think it was unfair that the parody you posted was taken down by YouTube or Facebook, you’ll have the right to at least know why because platforms will have to provide ways for users and rights holders to appeal decisions.
Fairer deals for creators, because...
A wider variety of artists will be able to monetize the use of their work because platforms like YouTube will have to negotiate licensing deals with authors and creators. Today, there is no obligation, so a platform like YouTube can pretty much do whatever it wants.
There are still some practical issues to work out...
Rights holders - some film producers, for example - don't want their content used on Internet platforms, so platforms need to find ways to keep such content off, but article 13 would require that such efforts "shall not lead to preventing the availability of non-infringing works or other protected subject matter." The exceptions for parody, criticism, citation, etc. have to be protected, so all concerned need to cooperate to come up with good solutions in these cases.
LET'S TAKE A FEW MINUTES NOW TO EXPLAIN THE TEXT, PARAGRAPH BY PARAGRAPH
This is the latest version of Article 13 that was passed by The European Parliament on Sept. 12. It is not the final text, which should be issued in January 2019 after the three European institutions reconcile their texts. But it's a good starting point to get an idea of what is it about.
TITLE
Use of protected content by online content sharing service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users.
The TITLE serves as a description of what Article 13 covers: It’s about platforms such as YouTube, Facebook, Vimeo or Dailymotion that rely on user-posted content.
13.1
Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing service providers perform an act of communication to the public. They shall therefore conclude fair and appropriate licensing agreements with right holders.
This clarifies that certain platforms that rely on user uploaded content are not just OVH or AWS (Amazon Web Services). The declaration that they “perform an act of communication to the public” reaffirms that they are required to negotiate license agreements with rights holders.
13.2
Licensing agreements which are concluded by online content sharing service providers with right holders for the acts of communication referred to in paragraph 1 shall cover the liability for works uploaded by the users of such online content sharing services in line with the terms and conditions set out in the licensing agreement, provided that such users do not act for commercial purposes.
There you have it: platforms are responsible for user-generated content. They have to make deals that cover user-uploaded works that contain copyright protected material. It's a big change. It means users like yourself are covered whenever you upload something. However, you wouldn't be covered if you were to upload for "commercial purposes", like music for an ad.
13.2a
Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.
If a rightholder decides that they don't want to negotiate a license with the platform, then the two parties have to work together to make sure that those works are not made available on the site. They also have to make sure that content which does not infringe copyright, like works covered by exceptions, is not affected. Parody, including GIFs and memes, shall live on - so will freedom of expression.
13.2b
Members States shall ensure that online content sharing service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case the cooperation referred to in paragraph 2a leads to unjustified removals of their content. Any complaint filed under such mechanisms shall be processed without undue delay and be subject to human review. Right holders shall reasonably justify their decisions to avoid arbitrary dismissal of complaints. Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the cooperation shall not lead to any identification of individual users nor the processing of their personal data. Member States shall also ensure that users have access to an independent body for the resolution of disputes as well as to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright rules.
Mechanisms for complaints to be heard and disputes resolved are what this bit requires. This is in the event that a work is wrongly blocked or taken down. Essentially, that's good news for users: they get significantly more control and rights to resolve disputes compared to now, where they face arbitrary decisions by platforms like YouTube on their own. This bit also specifies that when content needs to be removed, user privacy is safeguarded.
13.3
As of [date of entry into force of this directive], the Commission and the Member States shall organise dialogues between stakeholders to harmonise and to define best practices, and issue guidance to ensure the functioning of licensing agreements and on cooperation between online content sharing service providers and right holders for the use of their works or other subject matter within the meaning of this Directive. When defining best practices, special account shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on SMEs remains appropriate and that automated blocking of content is avoided.
This requires the European Commission and member states to promote clear rules and encourage effectiveness when platforms and rightholders cooperate to prevent infringing content. It clearly states that automatic blocking should not be encouraged and reinforces the notion that freedom of expression and exceptions (memes! criticism!) should be protected. It also states that the needs of micro and small businesses should be reflected.
Article 13 A
1. Member States shall provide that disputes between successors in title and information society services regarding the application of Article 13(1) may be subject to an alternative dispute resolution system.
2. Member States shall establish or designate an impartial body with the necessary expertise, with the aim of helping the parties to settle their disputes under this system.
3. The Member States shall inform the Commission of the establishment of this body no later than (date mentioned in Article 21(1)).
In Article 13a, the Parliament calls for states to create an impartial expert body for dispute resolution. This is in addition to the mechanism that platforms must set up.
Article 13 B
Use of protected content by information society services providing automated image referencing
Member States shall ensure that information society service providers that automatically reproduce or refer to significant amounts of copyright-protected visual works and make them available to the public for the purpose of indexing and referencing conclude fair and balanced licensing agreements with any requesting rightholders in order to ensure their fair remuneration. Such remuneration may be managed by the collective management organisation of the rightholders concerned.
Article 13 B points out that image search engines should also pay rightholders.
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