Article 13: Will it Kill Memes?

On March 26, 2019 the European Union Parliament passed the controversial Article 13. Leading up to the vote there were protests and criticisms on the effect that Article 13 would have on the Internet. To understand the criticism of the law, first we have to understand what Article 13 is anyway.

Article 13, which is actually the seventeenth article under this law, is just one part of a larger law in the EU called the Directive in the Digital Single Market aimed at regulating how copyrighted content can be used on large content sites. The stated purpose of the law is to help spread the money made on copyrighted content more evenly. Big platforms like YouTube, Twitch, and Twitter generate revenue by hosting other user’s content. Article 13 corrects what EU leaders perceive as a problem by making sure platforms have licenses, or permission from the copyright owners. In other words, Article 13 will force platforms to be legally responsible to the copyrighted content that they host, shifting legal liability from the user that uploads potentially copyrighted content to the platform itself.

To accomplish the terms of Article 13, platforms would be required to negotiate licenses with record labels or copyright collection groups that license large swaths of content, and if they cannot acquire these copyrights platforms must block the content from being posted all together. Platforms may also pass liability onto content creators, when platforms are found in violation they may turn around and sue the specific content creators.

Alternatively, if the content creator has accrued sufficient fame, like some creators on YouTube and Twitch have done, they might be able to secure specific agreements with licensors.

This sets up the two sides of Article 13: on one side are copyright owners such as music publishers and movie studios, and on the other tech giants that would have to adapt their policies and software to comply.

In the context of gaming, critics are worried that this would place enormous power in the hands of established game developers when users try to upload recorded game play. One critic stated, “Can you imagine the stipulations that game studios such as Ubisoft, Nintendo and EA will place on video creators if they attempt to gain a license to stream content of their video games?” This places considerable power into the hands of game developers, which affects services such as Twitch that make money hosting gameplay.

There are several important criticisms of this law. The law does not make clear how tech companies are supposed to practically stop users from uploading content that they do not have a license for. One way could be applying content filters that would digitally review the upload.

Article 13 does have several exceptions for the use of copyrighted content, such as education, reviews, parody, or comment. Under these exceptions, some memes are safe, but can content filters tell the difference? YouTube already employs a similar system called ContentID, and this does not always get it right. For example, in 2016, YouTube took down a lecture by a Harvard Law professor because it contained snippets of Jimi Hendrix songs—even though education material was excepted from copyright infringement. Based on the track record of these content filters, opponents to this law are worried by employing these content filters allowable copyrightable content would be blocked.

Another criticism is that these two giants battling leave smaller companies and creators to be run out of business. In order to be exempt from Article 13 the site must be (1) available for less than three years, (2) have a yearly turnover of less than 10 million Euros, and (3) have less than five million unique visitors to the site every month. This leaves small companies that may not meet the exception criteria (for example, a small company that has been around five years) forced to shutter because they cannot afford licensing or large content filters.

A counter to these arguments is that things might not really change. With respect to the games industry, the advent of online streaming means a number of licenses already include permissions for broadcasting game play. Developers are generally unlikely to block the uploading of this content because it may damage sales or their reputations among fans. Additionally, content blocking software may continue to advance to the point where the risk of throwing out the baby with the bathwater is minimal.

So what’s next? Now that Article 13 has passed, individual member states have two years to implement their own interpretation of the law to come in compliance with the directive. This is where all of interpretation will come from as each country within the EU can decide the practicalities of its enforcement. Internet providers and users will have to stay tuned to see how this will come to affect them.  

Rachel Ann Stephens

Rachel Ann Stephens is a second-year at University of North Carolina Law with a passion for media law and its interaction with entertainment mediums such as film, television, and video games.

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