There are two legal developments brewing—one in the European Union and one in the UK —that may have an impact on fan activities. Neither one is law yet, so both provide opportunities for fans to take action. Here’s what the two proposals mean, and here’s what you can do about them!
First, the European Union’s #CensorshipMachine Proposal. The European Parliament is currently considering a “Copyright Directive” that could be harmful to platforms like the AO3. Specifically, there are two troubling parts of the proposal: Article 11, which has been called a “link tax,” and Article 13, which would require some websites to filter user-generated content. This article by Open Media talks more about these proposals and why they are bad ideas.
The filtering proposal, in particular, would make it harder for fans to get and share fanworks. Right now, laws are set up so that users are responsible for their own content on the Internet. Sites like the AO3 can’t, and don’t, filter the content of what users post. In the U.S., the Digital Millennium Copyright Act’s “notice and takedown” provisions make it possible for sites like the AO3 to exist. If someone thinks a work on the AO3 infringes their copyright, they can ask to have that work taken down, but the AO3 won’t monitor what its users post unless someone complains about a particular work.
Article 13 would dismantle those protections in the EU, requiring sites to adopt technological measures to filter users’ content. This sort of requirement would make things difficult for sites like the AO3 that have limited resources. And even if resources weren’t a problem, our experience with computer-generated takedown requests tells us that technological measures simply aren’t good enough to distinguish infringing material from non-infringing fair use and fair dealing. Technological filtering would make it harder for fans to engage in legal, non-infringing activities, and would make it harder for sites like the AO3 to host fanworks.
Earlier this year, the OTW participated in the EU’s consultations about these proposals, representing the interests of fans and platforms that host user-generated fanworks. But now is the time for fans themselves to take action. Open Media has launched a tool that lets you contact your Member of Parliament directly to voice your views about these proposals: https://act1.openmedia.org/savethelink. Anyone can use the tool, but it’s especially important for fans in the EU to make their voices heard.
Next, the UK. The UK Parliament is debating the “Digital Economy Bill.” The Bill is long and complicated, and we won’t get into the pros and cons of it here, but there are two provisions that fans have brought to our attention: one regarding “online pornography” and one making small changes to the law about criminal penalties for copyright infringement. Because of the way these proposals are written, neither of these provisions would have any impact on the Archive of Our Own (AO3). But that doesn’t mean that fans shouldn’t care about them!
The “online pornography” provision is designed to prevent users under age 18 from having access to video or stills from video that would be rated “R18” by the British Board of Film Classification. It shouldn’t have any impact on fanfiction, fanart, or any other non-video fanworks, but the definition of “pornographic material” is written vaguely enough that some might interpret it to include fanfiction, fanart, or other fanworks that would be rated R18 if they were made into a video. This vagueness would be easy to fix: just make it clear that the definition of “pornographic material” is limited to video or stills from video.
The provision about criminal penalties makes a very small change in what qualifies as intent to infringe. It shouldn’t have any impact on creators or platforms for noncommercial transformative fanworks, which are not intended to cause economic loss to the copyright owner—on the contrary, they tend to build markets for the works they’re based on. But here again, any vagueness would be easy to fix, by adding a provision that copyright infringement should not be punished as a crime unless it causes a commercially substantial harm.
What can you do about these UK Proposals? If you’re located in the UK, contact your Member of Parliament, asking them to make the clarifications above, to make sure the changes don’t have unintended consequences.
If you have questions about law and fanworks, OTW Legal is here to help.