What do you think of Article 13

Is Article 13 Really the End of the Free Internet?

This article was originally published in English. We had it translated by Lorenz Mrohs and Jonathan Schlue with the kind support of the author Joe McNamee. It is also under the CC BY-SA 4.0 license)

The reform of EU copyright law is the subject of very controversial discussions. The famous Article 13 in particular is at the center of the discussion. If you listen to the opponents of the reform, it will be the end of the free internet as we know it. The Internet, where everyone can communicate with everyone without permission, would then be gone. If you listen to the proponents of the reform, authors and artists will finally have more control over their rights on the Internet, after years of copyright abuse by Internet giants. The extremes make it difficult to understand what the reform is really about.

The reason this issue is attracting so much attention is not only because of its complexity, but also because Article 13 is actually not a single proposal. Rather, it is a 1,200-word proposal on filtering, liability and licensing for Internet platforms, legal remedies and cooperation between rightsholders and Internet platforms.

All of this is exacerbated by the fact that the reform seeks to rebalance three different relationships: between platforms and users, between platforms and copyright holders, and between users and copyright holders. In addition, of course, many are both copyright owners and users at the same time. On top of that, a balanced discussion is made even more difficult by a contradiction between what proponents hope for the reform and the vagueness and possible unintended consequences that the opponents see.

The hope of those who support the reform is that the major platforms will either have to pay for the use of copyrighted content that is uploaded or block content that is not authorized to upload. But is this hope even justified?

The proposal to reform copyright law

What content is protected?

The proposal relates to “works or other protected items”. This would mean everything that is subject to the protection of intellectual property - copyright, but also other rights that fall under the broad concept of “intellectual property”. This includes the obvious things like video and audio, but also less obvious things like choreography and trademark law.

Which internet companies are affected?

This affects all companies that host, promote and profitably “organize” “large amounts of works or other content” for their users, with the exception of small and less than three years old companies. Unfortunately, no one knows exactly what all of this could mean. The reference to "organizing" goes back to a case by the European Court of Justice against "Pirate Bay", so it will ultimately be up to the interpretation of the courts of the 27 EU Member States to define what that means in relation to more traditional services. Also, nobody knows exactly what “large amounts” could actually mean. One thing is clear, however: With all the political back and forth, it's not just about music and videos, and not just about Google and Facebook.

What do companies have to achieve?

Platforms must try “to the best of their ability” to prevent future uploads of material that has been subjected to “duly reasonable notice” by any person or entity claiming the rights to the material. This can be audio, video, text, text images, images, photos, choreographies and much more. Platforms must also report to rights holders on the effectiveness of the technologies they are using to achieve this goal. The good news for those making false copyright claims is that there is still no penalty for doing so. This means that anyone: r can lay claim to any content without being punished for it. Even under the existing legal framework, it is easy and risk-free to make false claims, so that fraudsters have recently blackmailed YouTube channels with the assertion of false copyright claims. So Article 13 extends the powers of those who complain, but does nothing to hold them accountable.

What types of use are prohibited?

In our society, freedom is the norm and restrictions, including copyright, are the exception. Therefore, special rules are provided to avoid excessive copyright restrictions. For example, in EU law there are exceptions, so-called barriers, for the private use of copyrighted content, for satire, education, etc. According to Article 13, filters must be able to recognize these exceptions. But they cannot. Because of this, it will be impossible to properly apply these crucial exceptions.

In addition, there are absurd laws that have almost never been applied until now, but that will suddenly be easy to enforce. In some EU countries it is a copyright infringement to take photos or videos of paintings, buildings or sculptures that are in public places. So if you are a photographer, for example, and your photo includes such a building, and the author wants to assert their rights, then your picture may not be uploaded. (Likewise, memes often use copyrighted content so that they too could be filtered out if rightholders so request).

According to Article 13, filters should not only be able to recognize and block all "identified" buildings, but at the same time also take into account national copyright laws. According to French, Italian and Slovenian law, which generally restrict or not allow panoramic freedom, the filters would have to block the image. However, according to Austrian, British and Irish rules, the picture would be allowed online. How a platform operating in all of these countries will apply its filters can only be guessed at.

Regardless of the actual intention of the legislature, the platforms will of course take the simplest route and ignore all these exceptions and national peculiarities and simply block everything that could constitute a violation. Because blocking content does not involve any legal risk, while its publication is a potential risk.

Can users complain?

Even for the authors of Article 13, this all seemed very one-sided, which is why it was decided to add some kind of compensation to the new law. Therefore, Article 13 also suggests that users whose content has been deleted should have access to a redress mechanism. Or, more precisely, users would have the right to redress if the platform admits to them that their data has been deleted on the basis of a national implementation of Article 13, Paragraph 1 of the Copyright Directive. However, if the platform traces the deletion back to a violation of its terms of use, the effort does not even have to be made to provide a redress mechanism. So there is a redress mechanism in the directive, but it is unlikely to exist in practice. The promise that users will have a meaningful opportunity to assert their rights is therefore simply not true.

The consequences

Who will benefit from the proposal for copyright reform?

So which platforms are potentially able to cope with the unpredictable requirements and invisible costs of complying with these rules? Small platforms or Google and Facebook? Which rights holders can submit the correct information to each relevant hosting service in each relevant country? Independent artists and creatives or the biggest rights holders? Guess the biggest rights holders and the biggest platforms are the only ones that can be expected to do so.

What does that mean for an independent creative or artist?

Put simply, there are three gatekeepers in the way of independent creatives: the platforms, the collecting societies and the filter societies.

First of all, the artistic freedom and the scope for negotiation of the individual creatives are restricted. The big platforms are the only ones that can survive in this legal chaos. So creatives are moving from being able to pass on their content wherever they want, to being increasingly restricted to a few quasi-monopoly providers. These platforms have the right to block people's work if they so choose. They are free not to enter into a license agreement and instead block the content if they so wish. They are free to remove content based on false information if they so wish. They hold the cards in hand when negotiating. In order to get in contact with existing or new target groups, creatives and artists are becoming even more dependent on these few platforms - according to their wishes.

The only way for creative people to deal with this system in a meaningful way is to join forces and work with a collecting society, a second gatekeeper. These organizations license, identify and report on behalf of the creatives and take a portion of the revenue in return. This would especially harm new artists who will be negotiating contracts with collecting societies at a time when their bargaining power is at their lowest. If they choose not to partner with a collecting society, artists are alone, negotiating revenue with Google, updating Google's blacklist to prevent their content from being uploaded, fighting false ownership of their work, or trying to unjustified Prevent takedowns.

As if that wasn't bad enough, there are very few companies that can provide the technology needed to meet the directive's obligations regarding upload filtering. Whoever puts an image, sound or a video clip into the databases of these companies first has control over future uses, remixes or parodies. That is why the filter companies take on the role of a gatekeeper between the artist and the audience. That means there is always the risk that someone has done something similar to you, which will prevent your content from becoming available. We already see that. In a particularly absurd example, thirty seconds of a nine-minute video of a microphone under test was "identified" and blocked by YouTube's ContentID as someone else's work.

Article 13 moves us from an Internet in which artists can connect with their audiences on their own, to a world in which they have to license their rights of use to collecting societies. These then in turn (or not) license the rights to a few US online platforms, which ultimately decide on the underlying license conditions. Because if no agreement is reached in favor of the platforms, they simply decide to ban the content.

It's not about copyright infringement, it's about control of expression.

This is not about violations. In the drafts of Article 13, violations are practically not mentioned. It's about "identification". The point is to give intermediaries and collecting societies more power and control. The point is to impose obligations on online businesses, of which only the largest with the resources can handle those obligations. Damage and risks are transferred to individuals. At most we will be able to guess what is allowed and what is not, and we will censor ourselves because we know that we are powerless against the responsible giant companies.

In summary it can be said that poorly defined platforms that fear unclear liability rules should use undefined technologies to do “enough” (it is unclear what is enough) to increase the availability of content identified by the rights owners check. Those who carry out the “identification” do not take any legal risk, as incorrect information is not punishable here. The platform does not take any legal risk in deleting everything potentially problematic. All damage and all risks are borne by the uploader. Lots of strangers, you say? These are only the ones we know.

The bottom line

If Article 13 held the largest platforms accountable, that would be a good thing. If Article 13 ensured that artists could more easily reach their audiences, that would be a good thing. If Article 13 reduces the number of gatekeepers, empowers smaller artists, and allows them to get paid more easily for their work, that would be a good thing. Instead, it is about dismantling the Internet as we know it, strengthening the strong and creating a righteous mess. Many opponents of Article 13, including civil society, support the proposal's aims of giving artists more power and more control. Unfortunately, there is little evidence that reform has any chance of achieving this goal.

As the International Federation of Journalists said, “The Copyright Policy mocks journalists 'authors' rights by promoting underwriting and bullying to force journalists to surrender their rights and giving publishers free rein to make more profits while the journalists get zero ”. This analysis applies to all areas. Article 13 is not made for artists.

Joe McNamee, former managing director of European Digital Rights (EDRi), has set up a room in Brussels and in the heart of the European Union so that fundamental digital rights can be heard. EDRi has fought against excessive copyright regulations in the EU, most recently against Articles 11 and 13.EDRi has also campaigned for the European net neutrality rules and against privatized criminal prosecutions and was instrumental in the fierce lobbying for the General Data Protection Regulation (GDPR), which the improved digital privacy for people in Europe and beyond. McNamee joined EDRi in 2009, at a time when there were no advocacy groups for fundamental digital rights based in Brussels, despite the importance of EU decisions for global digital freedom. In the nine years that have passed since then, EDRi has become an integral part of fundamental digital rights policymaking. Before joining EDRi, McNamee worked in network politics for eleven years, including for the European Internet Services Providers Association. He started his internet career in 1995 at the CompuServe UK help desk.

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Published 03/19/2019 at 12:25 PM