Articles 11 and 13 Have Just Been Passed. Here’s What That Means.

New Changes in EU copyright Law Could End Your Freedom of Expression Online

 

Are you European?

Do you like memes?

How about parodies?

Remixes?

Well, too damn bad, because the European Parliament just changed the rules of the internet on your behalf.

Buckle up for a complicated story of copyright laws and prepare to be outraged.

First thing’s first.

Before we get to the story of how the internet will never be the same again, let me give you some context.

Copyright is a legal means of protecting an author’s work. It’s a type of intellectual property that provides exclusive publication, distribution, and usage rights for the author. Within the European Union, copyright law has undergone modifications since 2001.

The purpose was to unify copyrighting and adjust it to the ever-changing digital and technological times.

This led to the EU Copyright Directive, or EUCD, stirring some controversy with the general public.

EUCD has 15 articles in total. They mainly address how each member state can implement and ensure fair pay and distribution rights.

Spoiler alert: the main concerns lie with Article 11 and Article 13.

A Brief History of Copyright Law in the EU

Copyright laws have been under intense scrutiny for the past years.

Here’s what’s been going down.

06/22/01
The Copyright Directive is implemented to the WIPO Copyright Treaty to harmonize aspects of the Copyright law across members states of the European Union.
12/22/02
The deadline for EU states to adopt the Copyright Directive into their national laws. Only Greece and Denmark managed to do it.
10/31/03
UK transposed the EU copyright directive into United Kingdom law. ISPs now need to take measures to wipe out piracy.
12/05/12
The European Commission starts reviewing the 2001 Directive.
11/01/14
Jean-Claude Juncker is elected President of the European Commission. He supports new copyright reforms, claiming their potential to improve the EU’s financial status.
07/09/15
Aspects of the Directive are revised.
09/14/16
The EU Commission released a legal initiative for a Directive.
05/10/17
The Digital Single Market policy is reviewed (again).
09/12/18
The European Parliament adopts the Copyright Directive by a landslide majority.
02/13/19
The European Parliament, The European Commission, and the EU Council negotiate the final version of the Directive.
03/26/19
The copyright reform laws are passed with 348 votes in favor, 274 against.

But let’s get into more details.

Big Boss Axel Voss

The key figure through the final plenary debates for the EUCD has been German MEP, Axel Voss.

Axel Voss has been a key figure in getting Articles 11 and 13 through the European Parliament.

Time to get familiar with him.

Voss has been a strong proponent of the EUCD. He’s mentioned numerous times that platforms should take more responsibility for the content they host.

His main reasoning is that if Netflix and Spotify buy licenses, so can YouTube and Facebook. People were quick to point out that it’s like comparing apples and oranges, but this didn’t change his mind.

Despite contradictions in his statements and constant criticism, Voss simply claimed he’s not a software technician.

Oh, and he mentioned that it’s no biggie if YouTube goes down.

What even, mister Voss??

German-speaking friends, sit back and enjoy the song. Hopefully, it won’t get taken down.

And it’s not just him.

Some of his colleagues have also been a bit confused. They claim to have mistakenly voted to block any amendments to Articles 11 and 13, when they actually wanted the opposite. Apparently, someone had changed the vote order:

What happened was that in the middle of a sitting meeting, it was decided to make an adjustment in the order of voting in itself. This did not appear in a clear way where the President was also somewhat confused.
Peter Lundgren and Kristina Winberg

See, kids? Nothing will stop you from passing laws that can radically change the internet, even when you don’t fully grasp it.

What a time to be online!

Article 11 in a Nutshell

Article 11 grants publishers direct copyright over the use of their publications by other service provides.

Are you sitting down? You might want to for this.

The Article states that anyone must pay a fee to share a hyperlink, regardless if it’s for personal or commercial use. That’s why it’s been dubbed the Link Tax.

Under Article 11, snippets are no longer safe. Since they often include the headline and a small paragraph from a link, they will be subjected to taxation or risk being considered copyright infringement.

Article 11 opens the door to:

  • Independent journalists and bloggers no longer having their content shared. Even a factual statement could be subjected to a link tax!
  • Fake news-outlets blooming their business. Since they are less likely to charge a fee for their links, as opposed to respected news publishers, their content could become more visible.
  • Start-ups and small outlets being significantly disadvantaged. It’s more likely for websites to pay the fees for an established news source.
  • The Berne Convention being ignored. Just FYI, that’s an international treaty that guarantees the right to quote news.

It doesn’t sound good so far. But don’t worry. It gets even worse with Article 13.

Deciphering Article 13

This is what Article 13 says:

Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures such as the use of effective content recognition technologies shall be appropriate and proportionate.

Ok, let’s translate all that legalese.

Basically, according to Article 13, both the platform and the individual sharing copyrighted material are responsible.

If you upload copyrighted material onto a website and it goes live, the owner can be sued, unless they purchase the license to the content in question.

Article 13 will, without a doubt, change the internet as Europe knows it. It’s all because:

  • Article 13 nudges to upload filters scanning content before being uploaded online. This is, in other words, mass surveillance of every user and post.
  • Under the premise of protecting copyright holders, Article 13 will limit freedom of expression online for independent content creators. This could be the end of memes, parodies, remixes, GIFs, and basically everything making the internet great.
  • Article 13 would make it hard for new digital platforms to thrive since complying to the copyright regulations takes a lot of funds.
  • Undoubtedly, there will be unintended victims. Community projects like Wikipedia and code hosting platforms like GitHub will also need to implement filters, even if they only accept free licensed content.

Things aren’t looking great.

How Did They Vote?

A protest in Berlin amassed 100,000 people.

And an online petition has reached over 5,000,000 signatures.

Academics, leading technologists, and UN human rights experts have all advised against it.

But in the face of all that, 338 MEPs in the European Parliament still voted to pass the Copyright in the Digital Single Market Directive without a single amendment. 283 voted against.

If you’re curious whether or not you should be super mad at your EU representatives, here’s a breakdown of the vote:

Image source: SaveYourInternet.eu

France were the biggest supporters in the final vote, with 62 of their 74 MEPs voting in favor of the bill.

That’s a whopping 84% of them.

President Macron is also widely expected to be one of the first leaders to write the directive into national law, which many in his administration see as a win for the French media establishment.

Denmark, Belgium and Spain also saw a high percentage of their MEPs support the new directive.

On the flip side, citizens from Poland, Germany, and Sweden will be happy to see that the majority of their MEPs back a free internet. Each of these countries seeing a majority vote against the introduction of Articles 11 and 13.

Disappointingly, 93 MEPs were not even present for the vote. A number that could have swung the outcome had they all attended and voted against the directive.

Should’ve. Would’ve. Could’ve.

New Barriers to Enter the Market

With EUCD, it’s not all about the big guys.

The law exempts:

  • smaller start-up companies that are less than three years old
  • have a turnover of less than ten million Euros
  • have less than five million unique visitors per month

But this doesn’t seem quite right.

Basically, a new social media platform would be granted a three-year window before having to comply with the same standards and rules as Google.

It would also be a three-year margin to either develop and finance their own filter or buy one from the bigger companies.

The introduction of Articles 11 and 13 could actually be very profitable for YouTube.

This will surely cause quite a discrepancy, empowering big tech companies even more and potentially making it difficult for new platforms to hit the European market.

Similar stories seem to be unfolding across the digital landscape, with the UK government’s Digital Economy Act due to be introduced this year.

The British legislation means that websites hosting pornographic material will be required to introduce age verification (AV) checks. The aim is to ensure people are over 18 before they view adult content online.

Several firms have developed AV solutions, and one of the more controversial among them is called AgeID.

The issue?

Well, it’s made by MindGeek. The parent company of PornHub, RedTube, and many other adult sites.

As well as being used across the MindGeek family of websites, the solution is due to be in use across thousands of other smaller websites.

There is an expectation that Content ID, the upload filter created by YouTube, will also see many smaller sites across the internet clamoring for its integration. Compliance with Articles 11 and 13 may force things to go this way, since not everyone has buckets of cash to throw at developing their own content filter solutions.

In that respect, the Copyright in the Digital Single Market Directive could actually be very profitable for the likes of YouTube.

How Will This Affect the Internet?

To prevent being held accountable under the EUCD, big social media platforms such as YouTube or Facebook have two options.

One would be to purchase licenses for all copyrighted material that could get uploaded onto their platform. This would include licenses for music, pictures, clips, and texts from renowned companies, but also from indie artists.

Sounds impossible?

Well, that’s because it is.

There’s no way to possibly predict what sort of content could get uploaded and from what source. Not to mention the fact that no company has the manpower to manually double-check every post every day to snoop out any copyright infringement.

YouTube, for example, has 300 hours of video content uploaded every minute, which makes it impossible to keep up.

Automating Censorship

If they can’t afford to buy licenses for all copyrighted material, companies can resort to implementing a filter that would scan and analyze everything that gets uploaded onto the platform.

Given the current state of technological advancements, upload filters seem to be the way to go for ensuring copyright.

This could turn into an enormous financial investment, but it seems to be the only reasonable way to keep up with the new laws.

Only if the software deems it compliant with Article 13, can a post go public.

This is clearly not your regular internet.

Music to the Ears of Copyright Holders

While social media platforms are skeptical, to say the least, about the new copyright laws, not all companies shake their head disapprovingly.

It’s no surprise that most broadcasting companies and the music industry are in favor of the EUCD policies. To them, it’s a guarantee that their content is no longer under the threat of online piracy and illegal distribution.

Back in 2018, 84 European media organizations publicly put pressure on the European Parliament to pass Article 13.

In 2019, the number increased and over 200 European copyright groups have banded together in support of the new legislation and sent an open letter.

The letter reads:

We, the undersigned organizations, representing authors, composers, writers, journalists, performers and others working in all artistic fields, news agencies, book, press, and music publishers, audiovisual, and independent music producers call on the European Parliament to adopt the Directive on Copyright in the Digital Single Market.

Well, at least we know who stands to profit from the EUCD.

A New Era for the Indie Artist

The times when broadcasting companies purchased copyright licenses from artists and ensured payment have been fading away.

Now it’s all about the on-demand culture in our digital era.

As a result, it’s more challenging to keep track of intellectual property and copyright infringement.

Article 13 also focuses on smaller artists and indie groups who, more often than not, have their content shared and distributed online without proper credits or remuneration for their work.

When in trouble, most indie content creators lack the proper funds to take legal actions. So, they usually have to rely on a platform to take down the copyrighted material.

But this is a process that can take days or even months.

The EUCD would like to stop this problem from even surfacing.

Filtering Software in Use Today

In its current form, the EUCD calls for stronger means of copyright protection.

But companies like Audible Magic already produce software for the likes of Facebook, Vimeo, and Dailymotion. Their purpose is to register content and automatically implements recognition filters to stop copyright infringement.

While Audible Magic is considered one of the best at automatic content recognition, it’s still far from being 100% accurate and effective.

YouTube also makes frequent use of Content ID.

Content ID is a digital fingerprinting system developed by Google. It checks every uploaded video against a database that has been submitted by content owners.

This helps YouTube to:

  • keep track of their material
  • block videos from being viewed
  • track viewership statistics
  • monetize on videos by running ads

When re-uploaded, the copyright owner will still benefit from proper remuneration from a video.

Even if just a few digital European companies are currently using upload filters, this will most likely turn into a reality for many more in the future.

A Lack of Transparency

Under Article 13, online service providers would most likely have to resort to using upload filters. Only by screening content such as music, movies, pictures or text can they ensure they’re not breaking the European law.

At first glance, this mainly concerns big companies like YouTube or Wikipedia.

But at large, it affects all online users because it reduces the freedom of expression. The amount of freely accessible digital content worldwide stands to be drastically diminished.

We can also expect a lack of transparency since most talks on how to avoid copyright infringements will happen behind closed doors.

Content from a Pixel Perspective

With the EUCD, things get tricky with copyright infringement and fair use.

You’re not breaking the law if you use something copyrighted for critique and satire. Also, short snippets can be means for:

  • critique
  • satire
  • pastiche
  • promotion

But there are gray areas that the critics of Article 13 are concerned about.

Maybe most media consumers can easily distinguish remixes, covers or satirical reinterpretations.

However, software might not be as good at recognizing the subtle nuances of sarcasm, irony or eulogy. After all, it looks at content from a pixel perspective.

To software, copyright infringement might end up being mostly indistinguishable from fair use.

There’s also the matter of derivative works, aka works that:

  • were adapted from an original piece
  • incorporate previously published material

This type of content could become falsely flagged as copyright infringement, even if it differs enough from the source material to be considered fair use content.

And all of this is scaring meme lovers and social commentators alike.

Spain’s Ridiculous Copyright Law

Article 11 just passed, but there are examples of such legislation backfiring.

Let’s think of Spain in 2014.

Back then, the Spanish government implemented its version of Article 11.

The idea was that any aggregator site linking to other sources must pay them. Even little snippets telling people what’s in a link came at a price.

Sites couldn’t even opt-out of getting such link payments.

Google’s reaction to this was to shut down Google News in Spain entirely.

In the end, 84 Spanish online newspapers experienced a massive decline in visitors.

Journalism Took a Hit from GDPR Too

It’s not just Spain who experienced how legislation can affect access to information.

Many European citizens lost access to US news outlets following the introduction of the General Data Protection Regulation regulations in May 2018.

GDPR regulates data protection and privacy for all individuals within the European Union and the European Economic Area. It also addresses the export of personal data outside these regions.

As a result of GDPR, every EU citizen can request any processor to disclose any data collected on them and require erasure at any time.

In response to the new rules, more than 1000 U.S. news outlets blocked traffic from Europe within two months, since they did not wish to comply with the GPDR legislation.

The world of journalism took yet another hit.

Academia Under Threat?

The EUCD states that academic freedom shall be respected.

But we know better than to believe in empty promises. Plus, there are already plenty of concerns. For example, how well can a machine differentiate between copyright infringements and legitimate content?

That’s why more than 200 academics from over 25 research centers, including the leading European institutes, have signed open letters opposing Articles 11 and 13.

Open research advocates say that facts and information in a scientific article must remain free from copyright.

Some researchers have even expressed concern that the proposed rule might force scientists to pay fees to publishers for references they include in their publications.

This is not some fantasy scenario. It already happened with the scholarly social network ResearchGate. Publishers have removed millions of papers from the site as a lawsuit was filed claiming widespread copyright infringement.

But matters get even worse.

As you can imagine, research and reference or source citing go hand in hand. Otherwise, as a scientist, you just end up with an unverifiable and untrustworthy piece of paper.

Well, with Article 11 in place, every link would come at a price.

It’s no wonder that, in this case, critics fear academia might become biased and possibly even misleading.

Articles 11 and 13 might also target online encyclopedias, general reference works and anything requiring a citation, basically.

It’s no wonder that even the world wide web inventor, Tim Berners, express concern about the proposed EUCD laws.

In 2018, he addressed the European Parliament saying that:

The impact of Article 13 would also fall heavily on ordinary users of Internet platforms—not only those who upload music or video (frequently in reliance upon copyright limitations and exceptions, that Article 13 ignores), but even those who contribute photos, text, or computer code to open collaboration platforms such as Wikipedia and GitHub.

But we all know the sad outcome already. Such concerns were dismissed, and the EUCD was passed.

Other Educational Content

There are many people on the internet who create informative content. Think of all the YouTubers making Did you know? or DIY videos.

They often use images found online or other videos from TV, much like your science teacher would in class.

But now, these videos might fall under the new legislation of EUCD.

Ben G Thomas is a YouTuber, and he’s from England. Since this is not the best combo at the moment, he mentioned that most of his videos relating to prehistoric life would most likely be taken down, as the channel does not own the copyright to the pictures used in the videos.

In all fairness, no one can just take a quick picture of a Saurophaganax these days, right?

Monitoring these kinds of videos would ultimately translate to limiting access to science news and projects.

And this is terrible.

False Copyright Infringement Flags

Supporters of the EUCD claim that nothing significant will change online. But opponents fear a censorship apparatus.

YouTube’s Content ID has been at the heart of controversy before for falsely flagging copyright violations.

To some extent, that’s understandable. Content ID is just a piece of software. One that can’t accurately filter out all parodies or fair use content yet.

One such thing happened in 2018.

A music theory professor, Dr. Ulrich Kaiser, used a free recording of Beethoven’s 5th Symphony and received a copyright strike.

But under German law, the copyright term for recordings made before January 1, 1963, has expired. They have entered the public domain and can be used with no problems.

So, even if the copyright owner died a long time ago (RIP Beethoven) and the videos were promoted under education purposes, the upload filter harmed the distribution of cultural content.

That’s not very nice.

Unfortunately, that’s not the only time when art didn’t get a chance to be fairly distributed online.

The pianist James Thodes also experienced a similar situation when he recorded his performance of Bach in his living room.

The video was taken down.

But wait, it gets even worse.

In 2018, the Australian music technologist, Sebastian Tomczak, also know under his username “littlescale”, received 5 copyright strikes on a video.

But here’s the deal.

His video was just a 10-hour recording of white noise!

So yeah, copyright infringements were already taken very seriously, even before the EUCD.

Copyright claims can also be downright abusive

One famous example of this comes from the YouTuber TotalBiscuit.

He posted a critical review of the game Day One: Garry’s Incident. Wild Games, the developer company, didn’t take it lightly. They flagged the video for copyright reasons, causing it to be taken down.

Talk about freedom of speech…

Critics of the EUCD often refer to these types of cases when mentioning the unintended consequences of Article 13.

And we’re bound to see a lot more of them in the future.

Goodbye, Free Internet

A European internet regulated by Article 13 would be something quite hard to adjust to. It’s possible that memes, parodies, remixes, or critical opinions no longer have a place online.

*Shocked gasp*

But it’s not just this, and it gets way more serious.

If they can’t afford the development themselves, outsourcing will be the most likely solution for companies. And this is a troubling can of privacy worms.

If you’re trying to calm yourself down, don’t think of the fact that almost 80% of the total internet traffic is handled by American ISPs.

Somebody else already knows what the EU is doing online.

How to Get Around the Geo-Block

All in all, European creators will now face even greater scrutiny when it comes to the content they upload online.

A lot of what was previously acceptable could end up getting flagged as copyright infringement.

On top of that, if you are based within the EU’s jurisdiction, the content available to you may be at risk too.

YouTube has already said that if Articles 11 and 13 pass (which they have), it could be forced to block tons of content from being seen by EU residents.

To avoid being affected by this, you need to get a VPN.

With a virtual private network, you are essentially able to mask your IP and your activity online. It achieves this by replacing your IP with one from another country and fully encrypting your web traffic.

That way, nobody will be able to figure out your actual location or what content you’re viewing.

So, for example, if YouTube does make content from US creators unavailable in Europe, you can simply use your VPN to unblock Youtube and connect with a US-based server and watch all the Markiplier vids you want.

Getting around those pesky geo-restrictions can be pretty straight forward, but it’s still sad it got down to this.

Free internet, you will be missed!

 

How do you feel about Articles 11 & 13? What are your main concerns? Let me know in the comments section below.

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