The likelihood of Article 13 being adopted across Europe has sharply risen again, following the breakdown of negotiations two weeks ago.
The trialogue negotiations meeting, where final wording on EU law is confirmed, is now set to take place in the coming weeks after it was cancelled for its initial date on 18 January.
The meeting was cancelled as there was too much disagreement on the what the final wording of the law should be, but to remedy that - France and Germany, two of the major players in disagreement, had to reach a compromise.
And that's exactly what they've done. The Franco-German deal was leaked yesterday and the compromise seems to have been made more by France than Germany.
The previous stance of the French was that Article 13 should apply to all platforms, regardless of size while the Germans were in favour of it being applied to just the biggest of online companies.
The agreement, which is now enabling the trialogue negotiations to go ahead, will apply to every website unless it meets all of the following three conditions:
- A startup that has been active for less than three years
- A Website with an annual turnover below 10 million
- A website with less than 5 million monthly unique visitors
Upload filters will have to be applied for every website that fails to meet the narrow exclusions above which are many of the mainstream sites and apps used today. If the notoriously erroneous upload filters were to became mandatory, sites such as YouTube have said that they will cease to allow uploads completely from the EU.
Furthermore, adding to the already strict rules around exemption from the law, even if a web service does fit all three criteria, it must still prove that it has undertaken "best efforts" to obtain licenses from rightsholders such as record labels, book publishers and stock photo databases for anything its users might upload. This, as Julia Reda MEP puts it, is "an impossible task".
"In practice, all sites and apps where users may share content will likely be forced to accept any license a rightholder offers them, no matter how bad the terms, and no matter whether they actually want that rightholder's copyrighted material to be available on their platform, to avoid the massive legal risk of coming in conflict with Article 13," Reda adds.
The public opposition to Article 13 has mounted exponentially as the talks have passed through the legislative process, especially in the past year.
The pressure placed on member states had worked; just six member states opposed the new law last year but that has risen to 11 now. Regardless, this isn't enough to stop the legislation in its tracks and in its new revised state, it's just as damaging to the internet as it was in its previous wording.
Reda says that this agreement will likely be rubber-stamped by the European Council on Friday so the final vote will hinge on the big Parliamentary vote which is due to take place in April/May.
Update: 08/02/2019 - Google weighs in on how businesses will suffer
Google has weighed in on the Article 13 and Article 11 debacle which threatens the internet as we know it in a new blog post. The tech company joined many in the global conversation calling for a drastic rewording of the law.
Google recently ran an experiment which essentially altered its search results based on what the demands would be from Article 11, the 'link tax', which would charge news aggregators such as Google for every link posted to each outside news story.
The findings were worrying, especially for those which majorly rely on advertising revenue to stay afloat. In the experiment, Google altered the results to not include pictures and very limited amounts of preview text to avoid paying fines under the law. What it found was that: "Even [in] a moderate version of the experiment (where we showed the publication title, URL, and video thumbnails) led to a 45% reduction in traffic to news publishers."
"Our experiment demonstrated that many users turned instead to non-news sites, social media platforms, and online video sites--another unintended consequence of legislation that aims to support high-quality journalism. Searches on Google even increased as users sought alternate ways to find information," Google's blog post on the matter explained.
Not showing the information Google currently does for news articles such as key extracts and images will make it difficult for users to discern which content is worth their click.
Obviously, the owners of YouTube had something to say on Article 13 too, the law that would force YouTube to ban uploads from Europe, killing its European uploader base in the process.
"Companies that act reasonably in helping rights holders identify and control the use of their content shouldn't be held liable for anything a user uploads, any more than a telephone company should be liable for the content of conversations," Google said.
"We are committed to protecting content, but we need rights holders to cooperate in that process. The final text should make it clear that rights holders need to provide reference files of content, and copyright notices with key information (like URLs) so that platforms can identify and remove infringing content."
While the intentions behind the copyright directive are well-meaning, the pressure from MEPs and esteemed outside bodies and companies is mounting, the only hope for opposition to the directive is that a persuasive enough argument is made prior to the European Parliament vote in April/May to swing the vote their way.
What is Article 13 again?
The full details of the Article can be found here, but if you're not into reading legal text, it essentially means sites such as YouTube, Vimeo, Facebook, Twitter and Soundcloud - sites that host user-generated content - become legally liable for the copyrighted material it hosts. For YouTube's case, this is the large majority of it.
Labelled the 'meme ban', the article in its current wording would forbid taking work owned by someone else, say a song or a picture, and altering it in any way for the purpose of republishing it to the web.
This effectively would ban 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 would be prohibited, as would the remix of any song, unless the remixer had written consent from the original artist to use their work.
