Copyright and Fandom: An Update on EU Article 17

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

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What’s Going on with Disney and Fanworks?

Recently, you may have received an email informing you that Disney has updated its terms of use. Or you may have seen discussion about Disney’s terms of use and statements on Twitter around the #maythe4th hashtag. So what’s going on? Our Legal team can’t give you advice, but here’s what they have to say about what Disney’s terms mean for fans and fanworks.

Disney’s terms of use can be found here. (The direct English-language link is here). They govern the use of various (unidentified) Disney “products” such as websites, software, applications, contests, and services. What does that mean? Well, although this scope is broad, Disney can’t use terms of service to govern what people do out in the world — they can only govern what people do in Disney’s own platforms, (such as Disney’s websites, apps, software, and contests). Even if Disney would like to control what people do outside of those spaces, they just don’t have that power: out in the world, the usual rules of copyright, trademark, and fair use law apply. Read More

OTW Guest Post

OTW Guest Post: Margarita Coale

From time to time, the OTW will be hosting guest posts on our OTW News accounts. These guests will be providing an outside perspective on the OTW or aspects of fandom where our projects may have a presence. The posts express each author’s personal views and do not necessarily reflect the views of the OTW or constitute OTW policy. We welcome suggestions from fans for future guest posts, which can be left as a comment here or by contacting us directly.

Margarita Coale is a commercial and intellectual property attorney in Dallas, who focuses exclusively on the representation of authors, and romance writers in particular. A love of romance novels is one of the few constants in her well-traveled, adventurous life which began in Monterrey, Mexico and included time at a New York law firm. Today, as part of Fair Use/Fair Dealing Week Margarita talks about a legal case and its fannish connections.

How did you first find out about fandom and fanworks?

When we first got a Kindle many years ago, and it got web capability, I started looking for things to read (I had a small child and was trying to find a work/home balance). I came across Archive of Our Own in late 2013, and started to read quite a bit of Sherlock Holmes fandom work. Towards the end of 2015 I started to look into other sites, including fictionpress and literotica, and became quite familiar with Omegaverse and some of the other fandoms. I have many friends who are Supernatural fans and have often discussed those works with them.

These days, I spend a lot of time monitoring our children’s use of AO3 (its tagging system can be challenging), Wattpad, and Reddit, while also dealing with some legal issues for my clients (I have some who publish fanfiction au and also use Radish).

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