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

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Update on Unofficial AO3 Reader Apps

The OTW began receiving reports on Friday, February 14, about apps that are making available fanfic from AO3 without authorization. The first app is Fanfic Pocket Archive Library, which has been available on both the Apple and Google app stores. As far as the OTW can tell, this app provides an interface that allows users to access works on AO3, and it may not actually copy, store, or redistribute any data from AO3. This app has a premium option that allows users to access extra features of the app for a monthly fee; it also hosts ads. At the time of writing, it appears that this app has been removed from the Google Play store but remains available on the App Store.

The second app is actually not just one app, but a collection of them by a company called Woodsign j.d.o.o. The apps are available in the Apple app store. They are called Harry Potter Fan Fiction, P.J. Fan Fiction, K-POP Fan Fiction, Bulletproof Boys Scout / ARMY, 1D Fan Fiction, MCU Fan Fiction, Fantastic Beasts Fan Fiction, Sherlock Homes Fan Fiction, Slashfic, TWD Fan Fiction, and Real Person Fiction. These apps do appear to be redistributing fanworks. They also charge for access to many fanworks. We cannot say for sure that all works contained on these apps are being redistributed without permission, or that all of the works contained on these apps are from AO3, but user concerns and Tumblr discussion suggest that at least some are. 

Below are some of the things we have told concerned users in responding to emails. We also highlight some of the steps users can take if they do not want their works on these (or other) apps or sites. 

If you have further questions, please ask them here. That will make it easier for us to answer and will let more people benefit from the same information.

Can the OTW/AO3 get my work taken down from these apps?

The OTW does not own the copyright in the fanworks displayed on the Archive. When you post a work on the AO3, you give the Archive the right to display your work – that’s all. And that’s good!  It means that when you post fanworks on AO3, you keep your copyrights. For that reason, the OTW cannot issue a copyright notice to apps on behalf of our users. Copyright owners, in this case affected fan authors, must do that for their own works. Although the OTW uses trademark law to ensure that app makers do not mislead users into thinking those apps are official OTW projects, we do not have any legal right to what you share on AO3. For that reason, we cannot get those works removed from other apps or sites.

As a fan author, do I even own the copyright in my fanworks?

Yes! As a fan author, you automatically own the copyright in your original expression. You don’t own any rights in elements of the canon you base your fanworks on, such as characters or settings, but you do own the rights in what you yourself have added to them. That means that people cannot copy and/or sell your fanworks without your permission.

What can I do if I do not want my works displayed on these apps?

Fan authors who find their works being distributed on apps without their permission can request that their works be removed. Most sites have takedown procedures (known as DMCA takedown procedures) that allow copyright owners, including fan authors, to request the removal of their works. Even if these particular apps do not have an official DMCA procedure, copyright owners can always use the contact information listed on the app’s description page to demand that their works be taken down from places they are not authorized. This means you can submit a notice containing the information below and ask the app maker to remove your works. As a matter of copyright law, sites or apps should comply with DMCA takedown notices and demands for removal.

What do I say in a DMCA takedown notice to get my works off an app I do not want them on?

If you want your works removed from one of the apps discussed (or anywhere else!), you can submit the information below in a takedown notice:

  • Your Name and/or Pseudonym as an e-signature
  • Link(s) to the unauthorized works (such as a link to the pdf, mobi, or hosting page) or other information sufficient to allow the site or app to identify the precise unauthorized works you want removed
  • Link(s) to an authorized version of your work (whether on AO3, Tumblr, or somewhere else)
  • An email address of the submitter (include it again even if it’s in the header)
  • This statement: “I have good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
  • This statement: “The information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

Finally, both the Google and Apple app stores have procedures for reporting apps that infringe copyright. They can be found at the following links:

App store: https://www.apple.com/legal/internet-services/itunes/appstorenotices/#?lang=en

Google Play store: https://support.google.com/legal/troubleshooter/1114905