On the last day of Copyright Week, the EU nations’ Councils have voted on their positions on Article 13, and the majority have decided not to support it in its current form. This is good news for fans!
Article 13, as it was drafted, would have held many websites liable for user-created content, and in many cases would have required the use of filters that could have limited the availability of fanworks and other legitimate, non-infringing uses of copyrighted material. Although the proposal would not have affected nonprofits like the OTW–that is, AO3 would not have been affected–it still could have had a significant impact on other popular fan sites.
This result is powerful. It means that you can still continue to create fanworks and share them not only on AO3, but also on sites that would have been affected by Article 13, such as Tumblr, Twitter, and Facebook.
This is not the end of the road for Article 13–its supporters can go back to the drawing board to find a “qualified majority” of nations that would support it. But we should not lose sight of what this result means. It represents victory for users’ rights. It shows that a significant proportion of European governments care about Internet users. And, perhaps most importantly, it shows that public attention to copyright law can make a difference.
This decision also keeps the EU in line with other nations’ copyright law. For example, in the U.S., Internet hosts are protected by the “safe harbor” provisions of the Digital Millennium Copyright Act (“DMCA”). Under the DMCA, hosts are not responsible for their users’ actions as long as they take down infringing material when they are notified about it. This “notice and takedown” system provides protections for users, platforms, and copyright holders.
Although proposals like Article 13 might have prevented some infringement, they would be terrible for the Internet and for fair use/fair dealing. As a practical matter, these proposals would require hosts to use algorithmic filters to try and prevent users from uploading infringing material. Not only would such filters probably be ineffective at filtering out infringement, they’d also filter out plenty of non-infringing stuff. Because there simply aren’t algorithms capable of filtering for fair use, a lot of fair uses–including a lot of fanworks–would undoubtedly get caught in such filters. We know you don’t want that! OTW Legal has argued against mandatory filtering proposals, and will continue to do so.