EU Copyright Developments and Fans (UPDATED)

UPDATE: Great News! On July 5, the European Parliament voted against automatic approval of Articles 11 and 13. The Parliament will now consider amendments and vote again in September. So there is more work to do, but this vote made that work possible. For more information about the issue, read on.

OTW Legal has gotten a lot of questions about a recent development in European Union Copyright Law: the Legal Affairs (JURI) committee of the European Parliament adopted a “Proposal for a Directive on Copyrights in the Digital Single Market.” This proposal contains some fan-unfriendly provisions, known as “Articles 11 and 13.” Nothing is set in stone yet: Now that the JURI committee has approved the provisions, they will go to the European Parliament, after which there may be an opportunity for further debate. But what are these provisions, what would they mean for fans if the European Parliament approves them, and what can fans do right now? The short version is: Contact your MEP now. For the longer version, read on.

What are Articles 11 and 13?

Articles 11 and 13 would govern how the EU approaches copyright on the internet. Article 11, known as the “link tax,” would effectively make it infringing for websites to contain links to copyrighted press publications. Article 13, known as the “censorship machine,” has to do with whether websites have an obligation to filter user-posted content to prevent users from posting infringing material.

These provisions would not make fanworks illegal, but they could make fanworks harder to post and find. Because there may be opportunity for further debate on the language, it is hard to know exactly what impact they will have if they make it through the next step. But if they do, they will govern what internet hosts have to do (sites like YouTube and Tumblr and possibly the AO3), not what fans have to do. The provisions are about linking and filtering for infringing material; noncommercial transformative fanworks will still be non-infringing. The impact for fans would be indirect–rules against linking to copyrighted press publications and rules requiring filtering for infringing material may make it harder to find and post (non-infringing) fanworks online.

Beyond the general facts that they will make fanworks harder to find and post, it is difficult to predict exactly the impact these provisions would have, because it is difficult to predict precisely the language that they will pass. The language that JURI adopted is not published in any official form, and the language is hotly debated. Some proposals are worse than others. For example, in some proposals, nonprofit entities like the OTW/AO3 would be exempt from filtering obligations. In others, the rules take into account the nature of the works hosted, but do not take into account a site’s nonprofit status. Regardless, commercial sites like YouTube and Tumblr will likely see new obligations if these Articles pass. To find out even more about these proposals, we recommend reading this fantastic Reddit AMA by a few top European intellectual property professors. (In fact, the OTW legal team knows them and can vouch for their expertise!)

What can fans do?

We know that MEP Julia Reda plans to challenge the JURI committee’s result in the upcoming Plenary Session of the European Parliament on July 2-5, 2018. Between now and then, your voice matters!. To force a plenary vote, at least 76 MEPs need to decide that a vote is called for. After that, a majority of MEPs would need to vote to reject the JURI committee’s position. To learn more about the procedures, check out the #SaveYourInternet site.

For Europeans, that means that the best thing you can do right now is to contact your MEP and let them know that this matters to you! Let them know that you don’t want the link tax. Let them know that you don’t want algorithms and machines to be filtering internet content for infringement–machines that won’t understand fair use, fair dealing, and transformative free expression. Let them know that Articles 11 and 13 would be bad for European creators, who depend on being able to find and post transformative works.

OTW Legal will keep fighting for fan-friendly laws on the internet and around the world. But right now, your voice is the one that matters!

Legal Advocacy
  1. Verushka commented:

    I’m in the US, not Europe/the EU… so I can’t contact my MEP. But… if I understand the description of Article 11 above correctly…

    …wouldn’t that mean online mainstream press articles that link to other mainstream press articles, and possibly even peer reviewed journal articles, would be in violation of Article 11?

    Given that mainstream newspaper and magazine web sites get more traffic these days than they sell hard copies, I would think their staffs and editors would be upset by this proposed directive… am I incorrect in thinking so?

    • Janita Burgess commented:

      Hi Verushka,

      Thanks for your comment. Here is the reply from OTW’s Legal committee:

      Thanks for asking. Like most questions in law — and like all questions about this still-pending-law situation — the answer to your question is “maybe.” It depends on how the law is ultimately worded and implemented. Article 11 as approved by JURI addresses “digital use” of press publications, and the law was specifically proposed by press companies to target the ability of Google News, Facebook, and other news and information aggregators and apps to aggregate information without paying press sources. Most expect that there would be widespread deal-making among press sources if it passes, although not all mainstream presses support it. There have been proposals to exclude hyperlink-only digital uses; proposals to exclude private and noncommercial uses by individual users; and proposals to limit the “digital use” right to only “significant” snippets (a term whose definition is also highly contested), but we don’t know whether any of those limitations will stick and how individual nations will interpret them if they do.

      If you want to know more:
      Here’s some information from the EFF
      And some information from MEP Julia Reda from just before the JURI vote
      And some information from Gizmodo

      People outside the EU may find this petition to be a way to help.