Since this summer’s European Parliament’s changes on the Directive on Copyright in the Digital Single Market, “Article 13” has been on everyone’s lips. This post discusses the changes the EU planned to introduce to better protect IP rights while focusing on the infamous Article 13 of early drafts of the Directive on Copyright in the Digital Single Market.

Although the UK is slowly heading towards Brexit, it is important to be aware of such an important piece of European legislation in such blurry times.

The full final text of the Directive together with the Article in question can be found here. (Note: in the directive’s final form, “Article 13” can be found as Article 17 on page 120.) Hereafter I will refer to it as “Article 13”, as everyone else still is!

Why is this happening?

Following the appearance of the internet and its increasing popularity over the past three decades, there have been several attempts at ensuring that individuals and companies respect the law even when online.

Regulating the internet was and continues to be an important aspect when it comes to intellectual property rights as people are able to post and express themselves freely on the web. However, what happens when the same people express themselves online by copying someone else’s works? Usually, the owner of the IP rights is able to contact the platform in question and ask them to remove content that infringes his rights. The issue arises when it will be difficult for the owner of the IP rights to track down every single product that will infringe his rights. Hence support from many quarters for tighter policing of copyright online.

Article 13 – Break the Internet?

The European Commission, aware of such issues, decided that a better protection of IP rights was needed within the European Union hence the discussions in the EU’s Digital Single Market project. In September 2016, the Commission eventually presented a legislative package which included the new directive on copyright as part of this project.

The Directive includes “Article 13” (as Article 17), which obligates large internet platforms to take measures to ensure that they gain licenses with the copyright holders of material uploaded onto their site, the copyright holders’ rights are respected.

“Member States shall provide that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of the Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users…”

This change is extremely important; especially for YouTube whose monetising system is based on adverts placed on videos. In the given case, it is important for YouTube to assess such content uploaded prima facie and ensure that the publisher has not used copyrighted work in his uploaded content – and license this material if appropriate (or indeed, possible).

Such a system, even if automated, would analyse millions of hours of content uploaded daily to YouTube for infringement. It could only be a broad strokes tool, and would not be able to discern nuanced exemptions such as fair use, for example.

“Article 13” sparked long debates with the publishers on one side arguing that such a change is not feasible.

In its final form within the Directive the “edges” are much smoother for platforms like YouTube, who are given more realistic enforcement guidelines than in previous drafts in paragraph 4:

If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate they they have:

(a) made best efforts to obtain an authorisation,

(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter which the rightholders have provided with the service providers with the relevant and necessary information; and in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from, their website the notified works or other subject matter, and made best efforts to prevent future uploads in accordance with point (b).

In these clauses, providers such as YouTube have an array of legitimate remedial activities which they can undertake – which may not look too much different from what already takes place (albeit a far more rigorous version of existing practices). This has led to some relief – as earlier forms of the directive were far more prescriptive.

Further to this, paragraph 5 scales responsibility with elements such as “type, audience size, and the type of works or other subject matter uploaded by the users of the service; and the availability of suitable and effective means and their cost for service providers”. In addition paragraph 7 obligates member states to allow users to rely on existing exemptions and limitations (such as fair use, criticism, and parody).

For large scale content service providers, paragraph 9 may provide the most significant and pressing requirement for their platforms.

“Member states shall provide that online content-sharing service providers put in place an effective and expeditious complaint and redress mechanism that is available to users of their services in the event of disputes over the disabling of access to, or the removal of, works or other subject matter uploaded by them…”

It is no mean feat to construct such a mechanism, even given the two years before the Directive comes into force across the EU now it is finalised.

It remains to be seen whether such laws will be brought into effect in the UK in accordance with the Directive; should Brexit have been completed by this time or not.

At first glance, “Article 13” is clearly needed to better protect copyright holder’s rights, as the internet has surely exponentially increased the risk and probability of damaging infringement.

However, given the major service providers claim that they do not have the capacities to deal with such changes; a median route is, and (to a degree) has been agreed through consultation.

In hindsight this consultation appears to have followed the door in the face technique wherein a very high initial offer is rolled back to a significant amicable progression. Such a method may leave somewhat of a bitter taste in the mouth for service providers – ahead of the next salvo.

Further impacts remain to be seen and there is scrutiny to be drawn upon whether:

  • this will limit freedom of expression for users
  • a licensing structure at this scale and magnitude could effectively be implemented
  • such a structure in its initial forms would unfairly benefit bigger copyright holders moreso than others
  • filters could effectively and accurately police copyright upon upload without causing serious issue
  • the worst forms of implementation might essentially result in forms of internet censorship

Protection of copyright holders and their creations is an important contemporary issue and no one can argue against legislation providing a better protection.

However, the implementation of such wide reaching legislation across an internet that has already become (and is becoming) increasingly multifaceted and multifarious will provide plenty of contention moving forward. Roll on 2021.