Laws that protect individuals’ and businesses’ intellectual property have been in force for many years, and are currently cemented in UK law under the Copyright, Designs and Patents Act 1998. Regulations like these were devised well before modern forms of property were created, such as internet-based media, however.
The Directive of the European Parliament and the Council on Copyright in the Digital Single Market, also known more commonly as the EU copyright directive, was formed to address the legal gap. Regulators, as well as campaigners in the media and entertainment industries, have long considered copyright laws as being outdated, and have called for new regulations so the law can catch up with the intricacies of modern intellectual property.
These EU-devised regulations, however, have generated much controversy - especially Article 11 and Article 13 (now renamed Article 17). Detractors have previously criticised these sections for forcing online platforms, like social media sites, to check every piece of content that’s uploaded for violations, rather than relying on people to flag material themselves. This shift is seen as burdensome for these businesses, bordering on impractical, especially for those companies with several million users.
Nevertheless, MEPs approved the regulations on 26 March 2019 with a majority of 348 to 274 votes. EU nations, therefore, had until 7 June 2021 to adopt the regulations into domestic law. Countries that have adopted the regulations need to ensure all content uploaded to their services is protected and, if not, must seek out the copyright owner or take down the material. Some believe these will end internet freedom as we know it, although a handful of MEPs have argued that without GDPR and a copyright directive, there’s no such thing as internet freedom anyway.
What is Article 13?
Draft Article 13 has now been renamed Article 17 in the EU Directive
The full details of the Article can be found here, but if you're not into reading legal text, it essentially means that sites that host user-generated content, such as YouTube, Facebook, Twitter and Soundcloud, become legally liable for the copyrighted material it hosts. In YouTube's case, this is the large majority of it.
Article 13 has been labelled the 'meme ban' and it applies to repurposed copyrighted material such as a video from YouTube or music from Paul McCartney which can no longer be used in any works other than the copyright holders'.
This effectively bans the process of creating 'memes', which are entirely driven by the ability to take an image and then edit it to provide some humour. Under the new directive, this is prohibited, as is the remix of any song, unless the remixer had written consent from the original artist to use their work.
In terms of creative content, a shift is well underway towards more original content. Platforms are saturated with creatives trying to gain a following, with the pressure for content creators to be new, original and different having never been greater. New laws could play into the hands of the new breed, but the old dogs of the trade, those who rely on remix culture, could be on their last legs.
Article 13 compels any website to remove content potentially in violation of copyright and show they took prior care to prohibit the upload of anything protected by copyright - failure to comply would likely lead to a fine.
The simplest and most likely solution to this issue is to block all EU user-generated content from sites that host it at the point of upload. This is because as soon as copyrighted work has been published to the world, it immediately breaks the law and then the site would become legally liable for the punishment of breaking copyright law.
What is Article 11?
Draft Article 11 has been renamed Article 15 in the EU Directive
Article 11 can be considered easier to comprehend than Article 13. Sometimes referred to as the 'link tax', Article 11 targets tech giants which are also news aggregators, such as Google and Apple. These firms offer news services that curate clusters of significant stories from any given day, bound into stories by AI-driven algorithms. The legislation simply assists news outlets in generating more royalties for their content.
The rise of social media has changed the way people read the news. Instead of sourcing them from traditional physical outlets which have gained society’s trust over decades, users often get their daily news from Facebook walls, Twitter feeds, or Instagram stories. However, as news stories became more available, humans’ attention spans have gotten worse. Users are known to retweet or share news stories which they have never read (or finished reading), and they commonly form an opinion based on the headline and brief story descriptions - otherwise known as standfirsts. Then, they quickly move onto the next story. However, that does not mean that companies lose money. With Article 11, they can charge a tax on Facebook for these missed clicks.
Article 11 may be considered a knight in shining armour for news sites and journalists. The legislation enforces that they are paid every time they are listed outside of their domain. For example, Google will have to settle up for every IT Pro link listed in its search engine.
What could happen as a result of Article 11?
Users may see less news on social media as it will cost money for it to appear there. Google, Twitter, Facebook and the rest could even start to form their own newsrooms - from curators to creators.
A pitfall of this would be small, independent newsrooms would have a much more difficult time in growing an audience in a world saturated by major news outlets. Without aggregation, smaller outlets would have to rely on SEO practices that are massively ambiguous, difficult to exploit and, according to recent reports, completely unreliable.
Google recently ran an experiment that essentially simulated the internet under Article 11 to see how different it was. The results were worrying, especially for sites that rely on advertising revenue as a revenue stream.
Google altered the results to not include pictures and very limited amounts of preview text to avoid paying fines under the law. The experiment showed that even in a moderately strict version of the scenario, there was a 45% reduction in traffic to news sites. Instead, users went to non-news sites and social media to get the news they searched for - a direct contradiction of the aims for the directive.
What is the EU Copyright Directive?
The above articles have been approved by the EU and are being drafted as part of a new directive, rather than a regulation. That distinction is important, as EU member states are not required to follow the exact wording of directives, and are instead able to shape the rules to fit with domestic laws or apply them in a way that makes sense to that country - provided that the spirit of the law is upheld.
However, every member state is required to update existing laws or introduce new ones to meet the requirements set out under a directive, usually by a specific date. It’s because of this that the application of a directive can vary between countries.
The UK’s own domestic copyright laws were more than a couple of decades old at the time of the EU’s reforms, and the directive highlights several gaps, including around the creation of work by open source developers
The ideas behind the Digital Single Market, which can be traced to 2015 and even before, was outlined with the aim to more smoothly attaining the free movement of people, services and capital. It’s due to the increasing amount that European businesses and people are spending online.
Negotiations between different European legislative bodies were set to begin in January 2019, but a lack of support forced the closed-door meeting to be cancelled. Since then, fresh talks were held, with the final wording put to a vote at the European Parliament. This vote, which served as the final say, went in favour of Article 13 and Article 11.
MEPs voted in favour of both controversial amendments to the copyright directive on 26 March 2019, which means that member states had two years to draft domestic laws to ingrain the policies. This, in a way, is similar to how the Data Protection Act 2018 was drafted in the UK to mirror GDPR.
How will these regulations affect you?
The UK formally left the EU on 31 January 2020, 493 days before the 7 June 2021 deadline of adopting the regulations into domestic law. This means that any platform based in the UK is now officially exempt from complying with Article 11 and Article 13.
However, the 27 remaining EU states are still covered by the regulations that are by now in effect, meaning that website owners should be increasingly mindful of what type of content is hosted on their platforms – and whether it could implicate them in any way. Therefore, organisations should take the time to properly examine their web page and ensure that anything that could be considered at odds with the regulations has already been removed.
However, it also should be noted that, as mentioned earlier, the directive being passed doesn't automatically entail that it's enforceable by law. In fact, it’s only the most influential websites that are subject to the directive, with the EU establishing that the following cases deem a company exempt:
- Having been in operation for less than three years – especially common among startups
- Having a total annual turnover of less than €10 million
- Having not more than 5 million monthly unique visitors to the website in question.
Although still rather narrow, these cases provide many companies with greater leeway as to what can be found on their websites – especially while in the formative stage of their functioning.
However, any website that fails to meet the specific cases outlined above has to apply upload filters – tools that aim to prevent infringing content from being uploaded online by users. Often criticised for being erroneous, the filters are used by the majority of mainstream sites and apps. Nevertheless, sites such as YouTube have only rolled out the tool as an optional feature which allows users to check whether their content complies with advertising requirements. The Google-owned platform has also previously said that, i f upload filters were to become mandatory, however, YouTube would cease to allow any uploads from the EU.
Punishment for breaching the rules as set out in the copyright directive is unknown as of yet. Copyright breaches in the UK typically result in the handing of a three-to-six-month prison sentence and/or a £5,000 fine, so staying original has never been more important.
