Article 13 in North America: Digital Implications

What is Article 13?

Article 13 is part of an update to European Union copyright laws. The laws, named the EU Copyright Directive, have not been changed since 2001. The changes, encompassed in the European Union Directive on Copyright in the Digital Single Market, are meant to create “copyright rules fit for the digital era.” Many of the Directive’s updates are uncontroversial, but content creators, nonprofits and corporations alike are taking issue with the changes in Article 13, and to a lesser degree, Article 11.

The most basic summary of Article 13 is that it will hold websites liable for the content that is uploaded to their platforms. The websites themselves will be responsible for ensuring that content does not breach copyright. The change to copyright laws, which recently passed in EU parliament, means that websites will have to guarantee that copyrighted material is licensed and that original artists receive payment for their content.

Implications of Article 13 for Content Platforms

Article 13 holds fairly straightforward consequences for platforms like YouTube, Facebook, Soundcloud and many more: they will have to take greater responsibility for illegally shared content on their websites and apps. These straightforward consequences present complex challenges for platforms.

The status quo for YouTube, as an example, is that the platform is not liable for copyright violations, but must remove content that is the subject of a copyright claim by its creator. With the changes introduced in Article 13, websites will have to handle copyright issues before content is published on their platforms, shifting the burden from content owners to the platforms themselves. Herein lies the issue that these platforms are taking with the new law.

The major online media platforms claim that the law will force them to launch “upload filters” that will prevent copyrighted material from being uploaded. This is an extremely resource-intensive process for a platform like YouTube, that sees a purported 576 000 hours of content uploaded every day. More importantly, these filters will be unable to distinguish between content uploaded illegally and content that is in line with incredibly nuanced intellectual property laws. Many content creators take advantage of these laws to include brief news clips, to create parodies or even when sampling another artist’s song (with permission).

Article 13 in North America

While this law has been passed in the EU, it doesn’t affect the activities of these online platforms in other parts of the world. Still, there are potentially significant implications that will impact content creators and platforms in Canada and the United States.

EU RULES ARE EVERYONE’S RULES

Many organizations don’t have the tools or budget to manage data differently for different regions. We saw this with the introduction of GDPR in Europe. The laws for GDPR are more stringent than Canada’s CASL and much stricter than US CAN-SPAM. For this reason, many businesses introduced GDPR compliance across the board, regardless of where their customers were located. It is easier to administer one set of compliance rules than three.

The same could be seen with Article 13. While it will be expensive and difficult to implement upload filters, it will be equally difficult to administer filters only to users from EU member states. It’s possible that platforms like YouTube introduce upload filters across their global platform to make it easier to comply, and reduce the risk of content slipping through the cracks. This would also capture European users that opt to use a VPN to circumvent the filters.

ARTICLE 13 COMES TO NORTH AMERICA

Article 13 and its surrounding Directive were a result of heavy lobbying and many years of scrutiny by the EU. Some make the claim that the recording and film industries had a large part to play in the passing of these rules into law. EU cabinet member Max Andersson claims this was the “most intense lobby effort so far” and approximated that “leading up to the votes...we estimate that we got over 3,000 emails.” Regardless of how it came about, Article 13 benefits the recording and film industries significantly. It makes the process of protecting their copyrights much simpler for them, passing the buck to technology companies.

In North America, lobbies also hold significant power. Some of the largest lobbies on the continent are influenced by media companies. They may see the passing of Article 13 as an opportunity to introduce similar legislation on this side of the pond. If a similar law is introduced in North America, we can expect that these types of rules will be, at the very least, proposed, no matter where you live.

NORTH AMERICAN LAWS AND ARTICLE 13

The practical application of Article 13 is a challenging proposition, as discussed previously. Content upload filters have been attempted previously, and prove to introduce a number of new problems. A member of EU parliament, Julia Reda, is a staunch opponent of Article 13. She outlines a number of “examples of filters getting it horribly wrong, ranging from hilarious to deeply worrying.” These examples show a sampling of the many ways that Article 13 can interfere with other laws, ranging from fair use to content ownership itself.

As in Europe, copyright is enshrined in law in North America. All of the examples in Julia Reda’s blog above are possible, even for Canadian and US content creators. The effects of Article 13 will be felt all around the world. Imagine if a German television station presents a YouTube clip from a Canadian user, then upload filters claim that the content is German and blocks it all over the world. This one example of where this law could overreach and create new problems that didn’t exist before.

The Digital Implications of Article 13

If you wanted to sum up the implications of Article 13, you might be best served by the phrase “muddied waters.” The new legislation will have a number of confusing and unintended consequences, not just impacting EU citizens. As European countries begin rolling out these changes in the coming months, you can expect to feel the effects, even in Canada and the US. The solution to these new challenges is unclear, but the digital landscape will shift significantly to accommodate Article 13.