The EU’s Article 13: Anything to be Worried About?

If you follow any online activity with a vaguely tech-savvy and/or young-skewing demographic, you’ll likely have heard about the commotion surrounding the EU’s vote to pass Article 13, part of its wider Directive on Copyright in the Digital Single Market. Campaigns were held to hold it back, but to no avail — the EU Parliament voted in favor, though it has yet to be finalized and must then be implemented by EU member states.

But with so much discussion surrounding it and muddying the waters, what’s the actual significance of this article and its parent directive? Is the whole thing just a storm in a teacup, or is there real reason to be concerned about the future of a free and creative online marketplace of ideas? That’s what we’re going to consider in this article. Let’s get to it.

What is Article 13?

The European Union Directive on Copyright in the Digital Single Market (of which Article 13 is a part) was devised to modernize copyright laws that weren’t fit for purpose in an increasingly internet-driven world. Copyright holders have thus far needed to hunt down and point out unauthorized use, but the new regulations add responsibility for the illegal provision of copyrighted materials to hosting companies, requiring them to actively police their content.

There are 17 articles overall, but 11 and 13 have attracted the most attention, with 13 getting the lion’s share of it. Article 13 states that hosting platforms must work with copyright holders to “ensure that unauthorized protected works or other subject matter are not available on their services”, and though there are caveats regarding fair use (parodies, memes, etc.), the big problem with this is that references have been made to content recognition software.

Why has there been such uproar about it?

Because content recognition software is incapable of telling the difference between fair use and unfair use, any system that relies on it (or grants it the power to act first without manual review) will inevitably see vast quantities of fair use content taken down by platforms scared of falling afoul of the law — and lawmakers don’t seem to understand the significance of this.

Recent years have seen content hosts such as YouTube get increasingly restrictive, demonetizing videos at the first suggestion that they’re using unauthorized copyrighted materials (regardless of the context) and requiring manual reviews to be completed to remonetize them. Since the bulk of the views on a typical YouTube video will come within a few weeks of its posting, this system can deprive creators of perfectly-legal videos of most of their ad revenue, severely affecting their ability to keep making their content.

And in light of the recent repeal of net neutrality in the US and the countless ongoing arguments over matters spanning such things as hate speech and de-platforming, people who want an unrestricted internet through which anyone and everyone can freely express themselves might be justified in feeling that they’re fighting a losing battle.

What are the practical consequences likely to be?

Because of all the work that remains to be done, we won’t see any legal ramifications for quite some time. Even once the procedures have been followed and the directive has been finalized, EU member states will then have time to figure out how exactly they intend to follow it (with each one needing to implement its own system) — so we may not see any specific laws passed until as late as 2020.

But that doesn’t mean there isn’t an imminent threat from content hosts that see which way the wind is blowing. Knowing the laws that are likely to be implemented soon, we can expect the aforementioned content restrictions to get even more limiting in the next year, pushed along by big copyright holders that have been waiting for ways to get back at a digital landscape that they view as unfairly taking from their profits.

Think of the glut of print-on-demand services that people make their own using fair-use parody materials. Products such as custom T-shirts have proven so popular that generic customizable store sites have spawned the industry of website flipping (there are websites for sale from across the globe right now), but what will happen when the web hosts become sufficiently worried that they refuse to sell those products, regardless of how profitable they are?

That said, the unclear nature of much of the wording may eventually allow for a course-correcting pushback. Though they take bold stances against infringement of any kind, many of the biggest companies in the world know that even outright digital piracy doesn’t necessarily take from their profits (and can actually prove beneficial in many situations), and they may fear for the damaging effects of excessive restriction.

Does it bode poorly for the rest of the world?

Much like GDPR before it, though this directive is an EU undertaking, it affects the entirely of the web — particularly in the western world given the close cultural and economic links between the EU and the US. Since content hosts serve users from across the globe, they will need to adhere to specific EU country laws when serving users from those areas, and if they do so then you can be sure that US copyright holders will push them severely to follow suit with US users.

In addition, because precedent is huge in legal matters, there’s every chance that the American government will soon enough aim to implement a comparable regulation, and Article 13 could well prove very influential in how they frame it. Before long, it could be standard practice for the major content platforms (YouTube, Facebook, Imgur, etc.) to be extremely zealous with bans and start implementing greater levels of account sophistication to avoid people simply making countless accounts to reupload deleted content.

So, is this something you should be worried about? Well, it really depends on how invested you are in the protection and cultivation of content creators in the digital sphere. If you care about creativity, then you should be very concerned about the long-term impact of Article 13 if it isn’t implemented very carefully.

if you consume nothing but mainstream media, however, then you may be indifferent to the plight of the teenage meme-maker — but remember that most of the top creatives in the world became so good through riffing on existing work, and a creatively-stifling internet is unlikely to give rise to a very inspiring generation of artists.