What is Article 13 and Article 11?

Everything you need to know about the controversial copyright directive including whether the UK will need to adopt the regulations

European Parliament - What Is Article 13? What is Article 11?

Copyright rules that protecting the intellectual property of individuals have existed for decades, and are enshrined under UK law by the Copyright, Designs and Patents Act 1998. Laws such as this, however, were drafted before the advent of the mainstream web as we know it today, and widely-deemed to be incompatible with the modern forms of creative work.

The EU copyright directive, also known as the Directive of the European Parliament and the Council on Copyright in the Digital Single Market, aims to address this disparity. Some regulators, as well as campaigners in the film and music industries, see copyright laws as being vastly out-of-date and are, therefore, in favour of new regulations.

There's much controversy surrounding these fresh regulations, particularly regarding the sections known as Article 13 and Article 11, however. Critics previously slammed these chapters for forcing online platforms to check all material that's uploaded to their platforms for potential violations, rather than relying on users to flag material. The central argument is this will place a disproportionately large burden on smaller organisations.

Despite waves of criticism, however, MEPs approved the regulations on 26 March 2019, passing the directive by a majority of 348 votes to 274. This means that EU nations have until 7 June 2021 to adopt the regulations into law. Once it becomes adopted by an EU nation, businesses will need to ensure all content uploaded to their services is protected and if not, they must seek out the rightful copyright owner or take the content down immediately. Many believe these measures will kill off internet freedom, while some of the most senior MEPs argue that without GDPR and a copyright directive, such a concept doesn't exist anyway.

What is Article 13?

Draft Article 13 has now been renamed Article 17 in the EU Directive

The full details of the Article can be found here, but if you're not into reading legal text, it essentially means that sites that host user-generated content, such as YouTube, Facebook, Twitter and Soundcloud, become legally liable for the copyrighted material it hosts. In YouTube's case, this is the large majority of it.

Article 13 has been labelled the 'meme ban' and it applies to repurposed copyrighted material such as a video from YouTube or music from Paul McCartney which can no longer be used in any works other than the copyright holders'.

This effectively bans 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 is prohibited, as is the remix of any song, unless the remixer had written consent from the original artist to use their work.

In terms of creative content, a shift is well underway towards more original content. Platforms are saturated with creatives trying to gain a following, with the pressure for content creators to be new, original and different having never been greater. New laws could play into the hands of the new breed, but the old dogs of the trade, those who rely on remix culture, could be on their last legs.

Article 13 compels any website to remove content potentially in violation of copyright and show they took prior care to prohibit the upload of anything protected by copyright - failure to comply would likely lead to a fine.

The simplest and most likely solution to this issue is to block all EU user-generated content from sites that host it at the point of upload. This is because as soon as copyrighted work has been published to the world, it immediately breaks the law and then the site would become legally liable for the punishment of breaking copyright law.

What is Article 11?

Draft Article 11 has been renamed Article 15 in the EU Directive

Article 11 can be considered easier to comprehend than Article 13. Sometimes referred to as the 'link tax', Article 11 targets tech giants which are also news aggregators, such as Google and Apple. These firms offer news services that curate clusters of significant stories from any given day, bound into stories by AI-driven algorithms. The legislation simply assists news outlets in generating more royalties for their content.

The rise of social media has changed the way people read the news. Instead of sourcing them from traditional physical outlets which have gained society’s trust over decades, users often get their daily news from Facebook walls, Twitter feeds, or Instagram stories. However, as news stories became more available, humans’ attention spans have gotten worse. Users are known to retweet or share news stories which they have never read (or finished reading), and they commonly form an opinion based on the headline and brief story descriptions - otherwise known as standfirsts. Then, they quickly move onto the next story. However, that does not mean that companies lose money. With Article 11, they can charge a tax on Facebook for these missed clicks.

Article 11 may be considered a knight in shining armour for news sites and journalists. The legislation enforces that they are paid every time they are listed outside of their domain. For example, Google will have to settle up for every IT Pro link listed in its search engine.

What could happen as a result of Article 11?

Users may see less news on social media as it will cost money for it to appear there. Google, Twitter, Facebook and the rest could even start to form their own newsrooms - from curators to creators.

A pitfall of this would be small, independent newsrooms would have a much more difficult time in growing an audience in a world saturated by major news outlets. Without aggregation, smaller outlets would have to rely on SEO practices that are massively ambiguous, difficult to exploit and, according to recent reports, completely unreliable.

Google recently ran an experiment that essentially simulated the internet under Article 11 to see how different it was. The results were worrying, especially for sites that rely on advertising revenue as a revenue stream.

Google altered the results to not include pictures and very limited amounts of preview text to avoid paying fines under the law. The experiment showed that even in a moderately strict version of the scenario, there was a 45% reduction in traffic to news sites. Instead, users went to non-news sites and social media to get the news they searched for - a direct contradiction of the aims for the directive.

What is the EU Copyright Directive?

The above articles have been approved by the EU and are being drafted as part of a new directive, rather than a regulation. That distinction is important, as EU member states are not required to follow the exact wording of directives, and are instead able to shape the rules to fit with domestic laws or apply them in a way that makes sense to that country - provided that the spirit of the law is upheld.

However, every member state is required to update existing laws or introduce new ones to meet the requirements set out under a directive, usually by a specific date. It’s because of this that the application of a directive can vary between countries.

The UK’s own domestic copyright laws were more than a couple of decades old at the time of the EU’s reforms, and the directive highlights several gaps, including around the creation of work by open source developers

The ideas behind the Digital Single Market, which can be traced to 2015 and even before, was outlined with the aim to more smoothly attaining the free movement of people, services and capital. It’s due to the increasing amount that European businesses and people are spending online. 

Negotiations between different European legislative bodies were set to begin in January 2019, but a lack of support forced the closed-door meeting to be cancelled. Since then, fresh talks were held, with the final wording put to a vote at the European Parliament. This vote, which served as the final say, went in favour of Article 13 and Article 11.

MEPs voted in favour of both controversial amendments to the copyright directive on 26 March 2019, which means that member states would have two years to draft domestic laws to ingrain the policies. This, in a way, is similar to how the Data Protection Act 2018 was drafted in the UK to mirror GDPR.

How will these regulations affect you?

In light of the UK's withdrawal from the EU, the government confirmed last year that it won't implement the EU Copyright Directive in any shape, meaning UK-based platforms no longer need to worry about the implications of Article 11 and Article 13.

Website owners will need to think about what types of content they're hosting. Of course, as previously mentioned, the passing of the directive doesn't automatically mean it's enforceable law. You'll still have time to get things in order before your country adopts its own interpretation of the directive into domestic law - with changes not likely to take place until just before 7 June - but it's a good time to start taking inventory and decide what content might need to be removed to comply with the laws that could come into effect.

The EU has weighed in on to whom the directive will apply - only the biggest of websites need to be worried as a result of the talks that preceded the final Parliament vote. The directive 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 include 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.

Punishment for breaching the rules as set out in the copyright directive is unknown as of yet. Copyright breaches in the UK typically result in the handing of a three-to-six-month prison sentence and/or a £5,000 fine, so staying original has never been more important.

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