Article 13 of the European Directive on Copyright in the Digital Single Market is all about how authors, composers and rights holders get paid. It has come under attack by some of the giants that dominate the Internet, chief among them YouTube, Google’s sister company in the Alphabet group.
So, where do we stand now?
After trialogue talks were extended, representatives of the three EU institutions (European Commission, Parliament, Council of the European Union) agreed Feb. 13 on final version of the Copyright Directive following 30 months of examination and discussion. On Feb. 20, a Coreper meeting of representatives of member states approved the text, which will now be voted on by the European Parliament -- in the JURI Committee on Feb. 26 first and then in plenary, probably in March. Among the most discussed parts of the Copyright Directive is Article 13
What’s at stake?
Platforms like YouTube or Facebook misuse a legal framework that dates back to 2000 — ancient history in the digital economy. They claim to be simple hosts who cannot be held responsible for the content their users post. These big platforms hide behind this “host" status as if they were cloud storage or web services companies like AWS. Platforms like Facebook and YouTube either completely refuse to license content they actively provide access to, or they impose take-it-or-leave-it deals.
The goal of Article 13 is to hold the platforms responsible by setting them apart from simple web hosting companies and forcing them to respect the rights of creators and remunerate them fairly.
Which platforms does Article 13 apply to?
It applies only to a limited number of platforms: those whose main purpose is to store and give access to a large amount of protected works (music, films, series, etc) that are posted by their users, and those that are organising and promoting protected works for profit-making purposes. In practice, it’s about for-profit platforms such as YouTube, Facebook, Vimeo, Soundcloud or Dailymotion that rely on user-posted content.
So some platforms are excluded?
Yes. the text will not apply to platforms like these:
Non-profit encyclopaedias like Wikipedia, and non-profit educational and scientific repositories
Cloud services for private use like DropBox
Open-source software developing platforms like GitHub
E-commerce sites that sell physical products, like Amazon
Personal blogs or discussion forums, because they don’t store and give access to a large amount of protected works.
TripAdvisor, dating websites, etc. – as long as the main purpose of the service is not to give access to a large amount of protected works posted by users and organized to make a profit from that activity.
What about start-ups?
Article 13 provides a special framework for start-ups with:
Less than three years of activity
Annual revenue below €10 million
Fewer than 5 million average monthly unique visitors
Start-ups that fit the above description and that fit the definition of "online sharing service provider" -- meaning that their business model is based on providing access to copyrighted content (films, music, photos, etc), need to make their best effort to obtain authorisation from rights holders to put that protected content online. In cases where no licences are available, their obligation is limited to making their best effort to remove specific works on the basis of information provided by the rights holders. It means these services won’t have to implement stay-down measures, as any other online content service would normally do.
This gives start-ups legal certainty and a lighter regime. They start their business life on the right foot by offering legitimate access.
So, what will Article 13 actually do?
Article 13 specifies that platforms like YouTube are not just passive hosts but are actively involved in the content they give access to. They are performing “an act of communication to the public” and therefore fall under copyright law.
As a consequence, they are responsible for the protected content on their services, and they have to meet certain obligations with regards to rights holders:
Sign deals with rights holders (authors, composers, directors). This can be done through authors’ societies, which provide licences for large amounts of copyrighted works from single access points.
These deals will include material posted online by ordinary users who don’t intend to make a profit, or when revenues generated by the upload are not significant. Uploaders will have a legal guarantee and be more protected than ever before.
If rights holders do not wish to make a deal with platforms, the platforms must, in cooperation with the rights holders, make their best efforts that the works concerned are not available on their services. This provision mitigates the liability of the platforms. As long as they follow the guidelines in making their best effort to remove content for which rights holders provided relevant information, then they are not liable.
Member states must set the conditions for platforms and rights holders to cooperate and jointly establish best practices. This is crucial. The directive neither imposes nor specifies a technology or way to deal with the issue, but requires stakeholder dialogue and cooperation to make the functioning of the provisions possible
All of the above obligations should take into account proportionality; in particular the size of the platform, the type of content it holds, the size of its audience and the costs involved.
How will this affect everyday people who use these platforms?
Article 13 states that:
They can freely upload content they create for the purpose of quotation, criticism, review caricature, parody or pastiche. Memes, gifs and all of that other good stuff that denotes freedom of expression and freedom of art is, of course, allowed
As soon as a licence is granted to the platform, this licence also covers the acts of non-commercial uploaders as long as their uploads that do not generate significant revenue. Currently the platforms point to individual uploaders for any copyright liability. Under Article 13 ordinary people will have more legal security to post and share content.
Uploaders will have legal redress and complaint mechanisms to challenge content removal decisions. Until now, platforms have been accused of arbitrary decisions and practices. They will now have to deploy complaint and redress mechanisms and justify their decisions to remove content.
Users' complaints must be addressed in a reasonable amount of time and with individual consideration
Users should have access to an independent dispute resolution authority in case of conflict.
Platforms will be forbidden from sharing the identities and the personal data of their users and should not infringe upon their fundamental rights to freedom of expression
It's a big change for users. They can use, post and share content with complete legal certainty.
What changes for creators?
A lot. They will, finally, be fairly compensated for the use of their works through licensing deals they or their representatives (collective management societies, labels, etc.) make with the platforms. The Directive will be a game changer for authors’ financial success — they will have the tools to negotiate with the tech giants.
What about memes and mashups?
The platforms will have licences for most of the content, so memes and mashups containing protected work will not be affected: the licences will cover all uploader actions. Even in cases where a platform does not have the right licence, most memes and mashups fall under parody or quotation exceptions, which are now harmonised across Europe for the purposes of Article 13. They will be better protected than before.
What about respect for fundamental rights?
This directive makes it clear that it should strike a balance between the rights in the Charter of Fundamental Rights of the European Union, in particular freedom of expression, freedom of art and right to property.
Platforms’ practices and their cooperation with rights holders shall not lead to the identification of individual users nor the processing of their personal data. Users should have access to out-of-court redress mechanisms for the settlement of disputes or recourse to courts where necessary.
Platforms’ practices cannot lead to general monitoring of content for which rightsholders have not provided relevant information.
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