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.
No EU country has yet adopted its version of Article 17, but they will have to make changes to their national copyright laws to implement Article 17 by next summer. Communia Association hosts an overview of where countries are at in their national copyright reforms processes. So far, only France and the Netherlands have submitted proposals for Article 17 implementations to Parliament. Both of those proposals prioritise the rights of copyright holders over those of the users making uploads to these online platforms.
That’s why we’re asking you to get involved: if you live in an EU country, you can write to your national Members of Parliament and share your concerns about Article 17. Here is a list of key demands that national parliaments should consider when implementing Article 17:
1. Leave small platforms alone
Article 17 should only apply to those big players that compete with licensed services such as Netflix or Spotify for the same audiences. Specialty online platforms for recipes, fan art or hobbies should be excluded, even if they do make some profit.
2. No automated upload filters
Copyright is too complicated to be enforced by machines. Article 17 states that no legal content should be deleted, so platforms should not use technology that will delete or filter out legal content. A complaints mechanism alone is not enough – once the content has been wrongfully blocked, the damage is done. Decisions about removing content should be made by humans.
3. Legalize online culture
A lot of EU countries lack clear copyright exceptions for online culture. Article 17 requires them to at least have specific exceptions for quotation, criticism, review, caricature, parody and pastiche. For those of us who don’t have a law degree, it can be difficult to understand what is allowed and what isn’t under copyright law. To ensure that Article 17 doesn’t destroy online culture, we need new, broader copyright exceptions for everyday online practices that are easy for everyone to understand and follow.
Want to know more? Check out this post made by OTW Legal when Article 17 was passed in March 2019, outlining its implications for the AO3 as well as for other internet platforms.