What is Article 13? The EU’s divisive new copyright plan explained
Article 13 of the EU’s new copyright directive has sparked huge controversy online, with YouTube campaigning strongly against the proposal. We explain why
By MATT REYNOLDS
First Published. Friday 24 May 2019
iStock/Antonio Guillem/Getty/Joe Sohm/Visions of America
Big changes are coming to online copyright across the European Union. After years of debate and negotiations, politicians have passed sweeping changes following a final vote in the European Parliament.
The changes have proved controversial, with critics being opposed to two specific parts of the law: Article 11 and Article 13. They form part of the wider regulations which were passed.
The European Union Directive on Copyright in the Digital Single Market, to use its full name, requires the likes of YouTube, Facebook and Twitter to take more responsibility for copyrighted material being shared illegally on their platforms.
It’s become known by the most controversial segment, Article 13, which critics claim will have a detrimental impact on creators online. YouTube, and YouTubers, have become the most vocal opponents of the proposal.
On April 15, 2019, the European Council – the political body composed of government ministers from each of the 28 EU member states – voted to adopt into EU law the copyright directive as passed by the European Parliament in March. Six member states (Finland, Italy, Luxembourg, the Netherlands, Poland and Sweden) voted against adopting the directive while three (Belgium, Estonia and Slovenia) abstained from the vote. The remaining 19 member states all voted for the directive.
But it’s not completely over yet. On May 23, the Polish Prime Minister’s office announced it would bring a court case against Article 13 to the Court of Justice of the European Union. In a tweet, the Prime Minister’s office said that the entire directive “fuels censorship and threatens freedom of expression.”
Unless the Polish court case changes anything – and that’s a big if – individual member states will have two years to turn the new rules into their own national law. To help clear things up, here’s WIRED’s guide to the EU Directive on Copyright.
What is the Directive on Copyright?
The European Union Directive on Copyright in the Digital Single Market is a European Union directive that is designed to limit how copyrighted content is shared on online platforms. EU directives are a form of legislation that set an objective for member states to achieve.
The Directive on Copyright and its most controversial component, Article 13, requires online platforms to filter or remove copyrighted material from their websites. It’s this article that people think could be interpreted as requiring platforms to ban memes, but more on that later.
The Directive on Copyright would make online platforms and aggregator sites liable for copyright infringements, and supposedly direct more revenue from tech giants towards artists and journalists.
Currently, platforms such as YouTube aren’t responsible for copyright violations, although they must remove that content when directed to do so by the rights holders.
Proponents of the Directive on Copyright argue that this means that people are listening to, watching and reading copyrighted material without the creators being properly paid for it.
Article 13 aka “the meme ban” explained
This is the part of the Directive on Copyright that has most people worried. This article states that “online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services.” You can read the full amended text of the entire Directive here.
So what does it mean? Boiled down, all this article is saying is that any websites that host large amounts of user-generated content (think YouTube, Twitter and Facebook) are responsible for taking down that content if it infringes on copyright.
But things aren’t quite that simple. No one can quite agree how these platforms are expected to identify and remove this content. An earlier version of the Directive referred to “proportionate content recognition technologies” which sounds an awful lot like it’s asking platform owners to use automated filters to scan every piece of uploaded content and stop anything that might violate copyright from being uploaded.
YouTube’s current Content ID gives copyright owners the right to claim ownership of content already live on YouTube. The system then allows them to either block the video or monetise it by running advertising against it. It’s an already unpopular system due to its propensity for false positives and abuse, and this would be heightened if potentially infringing videos could not be uploaded at all.
The final wording of Article 13 sets out exactly which platforms will need upload filters and which ones won’t. The only way a site that hosts user-generated content can avoid putting in place a upload filter is if it fulfils all three of the following criteria: it has been available for fewer than three years; it has an annual turnover below €10 million; it had fewer than five million unique monthly visitors. As you can probably guess, this means a huge number of sites – from fishing forums to niche social networks – that will need to install upload filters.
The reason why this article has been dubbed the “meme ban” is that no one is sure whether memes, which are often based on copyrighted images, will fall foul of these laws. Proponents of the legislation argue that memes are protected as parodies and so aren’t required to be removed under this directive, but others argue that filters won’t be able to distinguish between memes and other copyrighted material so they’d end up being caught in the crossfire anyway.
Article 11 aka “the link tax” explained
The article intends to get news aggregator sites, such as Google News, to pay publishers for using snippets of their articles on their platforms. Press publications “may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers,” the Directive states.
No one is really sure how this one would work either. How much of an article has to be shared before a platform has to pay the publisher? The Directive states that platforms won’t have to pay if they’re sharing “mere hyperlinks which are accompanied by individual words,” but since most links are accompanied by more than a couple of words it seems that many platforms and news aggregators would fall foul of this rule.
The Directive does contain an exemption for “legitimate private and non-commercial use of press publications by individual users,” so it doesn’t look like individuals sharing links on social platforms will have to dip into their pockets. But even this is open to interpretation. Is someone with a huge following on social media, who posts adverts to that audience, a “private and non-commercial” entity?
What else is there?
Article 12a might stop anyone who isn’t the official organiser of a sports match from posting any videos or photos of that match. This could put a stop to viral sports GIFs and might even stop people who attended matches from posting photos to social media. But as with the articles above, all of this depends on how the directive is interpreted by member states when they make it into national law.
Who is for and against the Directive?
The Directive on Copyright has gained vocal critics on both sides of the debate, but you can broadly chunk up defenders and detractors into two categories.
In favour of the Directive are industry bodies representing content producers. These include the Society of Authors, and the UK-based Alliance for Intellectual Property and Proponents. In June 2018 84 European music and media organisations, including Universal Music Group and Waner Music Group publicly declared their support for the Directive. In the European Parliament the lead MEP presenting the directive to Parliament is Axel Voss, a German MEP and member of the European People’s Party.
Mary Honeyball, a British Labour MEP who supports Article 13, says. “Some [online platforms] fear that Article 13 requires the implementation of automated ‘upload filters’. However, Article 13 makes no such requirement and in fact states that automated blocking should be avoided,” Honeyball says in a statement. “The text only requires that [platforms] either license or remove copyrighted material.”
The other side of the debate, critics of the Directive, include the influential Silicon Valley lobbying group the CCIA, whose members include Google, Facebook, eBay, Amazon and Netflix. On June 12 a large group of internet grandees including Wikipedia founder Jimmy Wales and Tim Berners-Lee signed an open letter arguing against the Directive. It’s worth noting that despite the Directive including an exception that explicitly excludes Wikipedia and GitHub from these rules, both companies have maintained their opposition to the Directive.
YouTube is by far the most vocal critic of Article 13, with the firm making a big effort to promote opposition to the directive among its creators and users. A popup on the YouTube website and app directs users to a page with the title “#saveyourinternet” which includes a video from YouTube explaining the firm’s objections to the directive. In the video, Matt Koval, a content strategist at YouTube argues that – in its current form – Article 13 “threatens hundreds of thousands of creators, artists and others employed in the creative economy.”
Alongside the official YouTube explainer, the page hosts a handful of reaction and comment videos from prominent YouTubers. In one reaction video the YouTuber Craig Thompson, who has just under half a million subscribers, summed it up like this: “Gamers are dead, you guys are dead, I’m dead, we’re all dead, let’s go drink.”
Although the #saveyourinternet campaign has focused on stirring up opposition to the directive among YouTubers and users, the highest echelons of YouTube management have also got in on the opposition. On October 22, YouTube CEO Susan Wojcicki published a blogpost warning against the impact of the Directive. “Article 13 as written threatens to shut down the ability of millions of people – from creators like you to everyday users – to upload content to platforms like YouTube,” she wrote. “And, if implemented as proposed, Article 13 threatens hundreds of thousands of jobs, European creators, businesses, artists and everyone they employ,” she continued, before directing readers to the take the argument to social media with the hashtag “#SaveYourInternet”.
Since then, Wojcicki has been writing again. In a second blog post on November 12 she said there were “unintended consequences” of Article 13. “The parliament’s approach is unrealistic in many cases because copyright owners often disagree over who owns what rights,” she wrote. “If the owners cannot agree, it is impossible to expect the open platforms that host this content to make the correct rights decisions.”
Leading the opposition to the Directive on Copyright within the European Parliament has been Julia Reda, an MEP and member of the Pirate Party Germany. “Lawmakers looked at copyright primarily through one very particular lens: that of big media companies, with their waning control over distribution channels,” she argued in an editorial. “The greatest public space we’ve ever invented mustn’t become a casualty of attempts to use copyright law to solve problems not caused by it in the first place. Our freedom of expression online is too precious to be wasted as ammo in a corporate battle.”
When is Article 13 happening?
Although the Article 13 vote has been passed by the European Parliament, this doesn’t mean its provisions take place straight away.
It will now be up to the EU’s member states to enact Article 13 and the Copyright Directive. Each country within the EU will be able to interpret the law and how it should be implemented in its own ways. Therefore one country may decide that “upload filters” should be implemented using one tool, while another may understand the law in a different.