This post is guest-authored for OTW Legal by Julia Reda, a German researcher and politician who represented her country as a Member of the European Parliament between July 2014 and July 2019. She was a member of the Pirate Party Germany, part of the Greens-European Free Alliance, until 27 March 2019. You can find her on Twitter as @Senficon.
Article 17 is a new EU copyright rule that will make some for-profit online platforms directly liable for copyright infringements by their users from June 2021. In order to protect themselves from liability, those platforms will need to filter new uploads for potential copyright infringements in works that have been registered with them by rightsholders. These automated filters are notoriously bad at recognizing the difference between blatant copyright infringement and fan art, which is often legal under the copyright exceptions that apply in Europe instead of US fair use – such as caricature, parody, or pastiche (the use of existing materials and creatively combining them into something new). The likely result will be more frequent blocking of fan art and other forms of everyday Internet culture such as memes, reaction gifs or lipsyncs. Experts such as the UN Special Rapporteur for Freedom of Expression have warned about the danger of Article 17 for our fundamental rights.
Thankfully, fully non-profit platforms such as Archive of Our Own will be excluded from the upload filter provision. Still, Article 17 poses a huge threat to the broader online culture ecosystem. It’s unclear whether small forums that generate some advertising revenue but are commercially insignificant when compared to YouTube or Facebook will still be considered for-profit platforms that have to apply the onerous new rules. Additionally, EU countries have a lot of freedom to adopt national rules that would help prevent the automated blocking of legal content such as fan art. Read More