We’ve written before in this space about Articles 11 and 13 — fan-unfriendly legal proposals in the EU. On September 12, the European Parliament voted in favor of those proposals. Is it bad? Yes. Is it the end of the story? No. Is it going to change the AO3? Probably not. What can you do about it? Read on.
Articles 11 and 13 impose new requirements on sites that host user content, like the AO3, Tumblr, YouTube, and the like. In the United States, the Digital Millennium Copyright Act protects these sites from some kinds of copyright liability, so that the sites aren’t responsible for infringing content posted by their users unless the sites know it’s there and that it’s infringing. That’s why most sites have “notice and takedown” policies: if they’re warned about infringing content, they have to take it down — and they’re allowed to take fair use into consideration when they decide whether or not to take a work down. Articles 11 and 13 put the burden of preventing infringement on sites, rather than users, and make some very incorrect assumptions about the ability of algorithms to identify what uses infringe and what uses are non-infringing fair uses.
Why are these Articles bad for fans? They make sites liable for infringing material that their users post. They also create new copyright-like rights for press publications, and they make sites liable for “snippets” of press publications that their users post. These rules expect that instead of waiting to be warned about infringing material, sites would have to put in filters that prevent the uploading of infringing material. There is no exception for user-generated content, and as we’ve seen in other settings, the sort of algorithms that upload filters would have to use are notoriously over-inclusive. That means that the filters would often not be able to tell the difference between transformative fanworks (which generally don’t infringe, often because of fair use and related principles) and piracy (which does infringe).
The language that was passed on September 12 contains nonprofit exceptions, as well as exceptions for small businesses. Based on these exceptions, the AO3 would not have to engage in filtering — so nothing is likely to change around here! — but other sites that fans use, like Tumblr, YouTube, and Wattpad, will be affected. And despite the exceptions, nonprofit sites (like the AO3) and small businesses that use commercial cloud-based services like AWS (Amazon) or Google’s Cloud for storage could still face massive increases in the cost to stay online, get server space, etc. It’s impossible to predict the impact on sites like Goodreads and Pinterest. YouTube has posted a statement on the problems posed by the law, and it looks like they’re going to keep fighting against the worst possibilities for its implementation.
So this is bad news. But it’s also not the end of the story!
The Articles are not law yet. There are still opportunities to fight them. They go up for a final vote in January, and there are opportunities for change between now and then. If the Articles do pass in January, the process of “national implementation” would then begin: each country in the EU would begin to make its own laws based on the Articles. Every country’s laws might implement the Articles quite differently — some good, some bad. There will be battles over specific wording in every country.
So if you’re a citizen or resident of an EU country, reach out to your MEPs. This chart shows how each party voted. The SaveYourInternet site has an interactive tool that shows how MEPs in each country voted, and how to contact yours. This page explains how to see how your particular MEPs voted. If they voted against Article 13, contact them to thank them for doing the right thing! If they voted for it, tell them why they made the wrong choice and should change their mind when the January vote happens. Explain to them how this law will impact you personally; tell your story. Get involved with a national organization that is fighting against this law, and one that’s ready to push back against it in the courts – especially where it can curtail free speech, which is a fundamental right held by all EU residents.
As our friends at FYeahCopyright put it: “Pushing against this Directive doesn’t mean you support piracy or counterfeiting of creative works like films, books or photographs. It means, though, that you want creativity, science, communications and education to thrive online, just as they have for almost thirty years.”