Inside the EU’s controversial new copyright law

Inside the EU’s controversial new copyright law

By Luke Vargas   
An estimated 40,000 protesters took to the streets of Berlin to protest Article 13 on March 23, 2019. Courtesy: Netzpolitik
An estimated 40,000 protesters took to the streets of Berlin to protest Article 13 on March 23, 2019. Courtesy: Netzpolitik

Article 13's critics say it helps media companies extract more profit from platforms like YouTube while doing little to help independent content creators.

The European Parliament passed sweeping new online copyright legislation last week known as Article 13, handing a victory to ‘content creators’ over platforms like YouTube and Facebook that monetize content.

Big players in music, film and media love the law. Others fear a world in which corporate media strengthens its hand while independent creators find their content wrongly blocked by overly cautious platforms whose new algorithms care little about fair use or free speech protections.

This week on Wake we’ll look at the new rules that set out to tame the Wild West of online content.

Helping us do that is this week’s guest:

  • Jens-Henrik Jeppesen, director for European affairs, Center for Democracy and Technology



What should we know about Article 13 and its impact?

Jens-Henrik Jeppesen: “So Article 13 is a provision that will to some extent turn around the way the internet works and has worked for 20 years now. What I’m referring to is the principle that content hosts can host material uploaded by their users — citizens, people, companies, anybody else — without assuming liability for the legality of that content. So the host is not immediately responsible for whether that content violates laws.

Now the content hosts only retains the limited liability as long as it acts in a number of ways. So once there is a notification from somebody that, ‘hey, here’s a piece of content on your platform that violates my rights of intellectual property in that content,’ then you have to take the appropriate action. If you do not, then you will be liable under the law.

Article 13 turns this principle on its head and says that if you are a particular kind of content host you are responsible for content that your users provide and you’re responsible for making sure that there are licensing agreements in place with any potential right-holder in that content and you are responsible for preventing any copyrighted content that is not authorized from occurring on your platform.”

YouTube has had software in place for years to remove unauthorized copyrighted content from the platform. Is it safe to say Article 13 is less about ending piracy, and more about maximizing the profits media firms can make from the tech giants?

Jens-Henrik Jeppesen: “I think that’s correct. I think record labels see social media platforms — and I would think of YouTube as by far the biggest one — as an extremely useful distribution platform that allows them to engage audiences very effectively, very efficiently, very cheaply, and the dispute as far as I understand it is really a commercial one between the revenue share that goes to YouTube and the revenue share that goes to the right-holder. That I think is the crux of the matter.

And yet the backers of Article 13 keep emphasizing that they’re trying to help out the little guy…

Jens-Henrik Jeppesen: “That is a feature of many past copyright battles: that big labels, the move industry, will of course ally with organizations representing artists and creators at least in Europe, but that does not mean to say that the outcomes and the benefits accrue to those creators and artists.

And I think one of the many criticisms that has been levied against Article 13 is that it may enhance the bargaining position of the record label, but it does not do anything for artists, creators, writers, musicians, some of whom are of course using YouTube and other types of services to engage with audiences and circumvent the traditional record labels. I think that is certainly a big part of this discussion — that these types of platforms have provided a way for independent new bands, new artists to build audiences independently of the traditional big record labels.”

Should independent content creators that rely on revenue and exposure from YouTube be worried that strict content filters could jeopardize their livelihoods?

Jens-Henrik Jeppesen: “That is exactly the concern that has been raised — that filters will pick up a lot of material that is protected by exceptions to copyrights, for example the parody exception, and so on. The legal text does recognize these exceptions, but experience with content filtering shows that the tools do not recognize and implement these exceptions with any kind of precision, and so there’s going to be lots and lots of these kinds of false positives.

A 'truthiness flash card' distributed by European Digital Rights (EDRi) in opposition to Article 13.
A ‘truthiness flash card’ distributed by European Digital Rights (EDRi) in opposition to Article 13.

YouTube and Sound Cloud probably know how to do this better than anybody else, but this will also apply to a huge number of different types of platforms — platforms that are not designed to or not primarily used for music recordings or video, but all kinds of different sharing platforms — they will have to put in place some kind of filtering technology, and unless they have significant resources in terms of legal and technical expertise, they can’t go in and adjudicate every case.

They will have to over-block and over-filter in order to make sure that they comply, and you’ll have people such as yourself suffering the inconvenience and really the disruption to your business as a result.”

What’s the chance the US gets its own version of Article 13 before too long?

Jens-Henrik Jeppesen: “There’s a general trend that legislators, politicians want companies that host content to take more responsibility for it, to take more action to prevent content that may be objectionable — that may be unwanted for any number of reasons, that may be illegal — to take proactive and preventive action.

So I think there is going to be policy initiatives along these lines in a number of different countries, and I think the U.S. included.”

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