While copyright holders may celebrate that Article 11 and Article 13 have been passed by the European Parliament, big tech companies and internet freedom fighters are less than excited about the new directive
The internet is changing. On Tuesday March 26, the EU passed the European Union Directive on Copyright in the Digital Single Market with 348 MEPs voting for and 274 against the new directive which detractors have referred to as a meme-killing law. Now, as the Union’s member states have two years to action the directive, the question is whether or not this is great news for British SMEs.
One thing is clear though, the big tech firms are less than pleased about it. YouTube in particular has taken issue with the directive’s Article 13, which was renamed Article 17 for maximum confusion in a redraft in February 2019.
Already, YouTube removes copyrighted material uploaded to the video-streaming platform. But the part of the directive previously known as Article 13 puts the onus on being more pre-emptive, to ensure people cannot upload copyrighted material. This upload filter that companies like YouTube, Facebook and Twitter would have to put in place is what has given the directive its meme ban or meme killer soubriquet as they fear memes would get caught in the upload filter.
The move comes as public opinion has turned against big tech and the monopolies they have. Over the past few years, the EU has taken a stronger stance against these giants. For instance, Margrethe Vestager, the European commissioner for competition, has accused Apple of getting illegal tax benefits in Ireland, issued a $2.7bn fine against Alphabet for allegedly breaking antitrust rules and ordered Amazon to pay €250m in back taxes. Add to this that Facebook was fined £500,000 after the Cambridge Analytica scandal and it’s easy to see how the mood towards the digital dominators in the EU could be perceived as being less than welcoming.
While the new directive could be seen as another push to create a more level playing field for small businesses, its detractors suggest it could be bad for both these large US tech titans and for UK SMEs. “Despite the best of intentions, the move is ultimately a counter-productive one and will damage the freedom of expression and innovation that is the heart of the internet age,” argues David Richards, co-founder and CEO at WANdisco, the cloud computing company. "Stricter copyright laws will achieve little else but stifle innovation across the board, undercutting the growth of smaller players and expanding the monopoly of those it was designed to restrict. The internet was created to open up the field of opportunity to anyone with an innovative idea, where challengers can unseat incumbents – Article 13 will bring legal uncertainty and in the end it’s a step backwards.”
Others fear that the directive could make it harder for companies to market themselves. “This could cause problems for the social media industry because memes and GIFs have historically been such an easy way to – for want of a better term – go viral,” suggests Andy Barr, owner of 10 Yetis Digital, the public relations and social media agency “[And] now content that teams create could get blocked for copyright issues under the watchful eye of these new upload filters that will have to spring into action despite the fact that they may not actually breach any rules if the leniency with GIFs and memes is to be believed.”
But far from everyone is certain about the directive having these negative consequences.
“The sacred meme, the teenager’s favourite sport, remains protected by the copyright directive,” argues Georgia Shriane, senior associate solicitor in the commercial and technology team at law firm Boyes Turner. “Far from nipping free speech in the bud, the directive restates as an exception to copyright the use of copyright content for the purposes of criticism, parody and pastiche – long live the meme.”
Moreover, she suggests the directive could actually be good for startups. “It [only] applies to businesses which have been trading for more than three years and exceed the €10m in terms of turnover and [have] more than five million monthly visitors, which is unlikely to be a problem for newer businesses in their formative years,” Shriane continues. “There are special one-click online copyright licences available for SMEs, so in actual fact the new regulation is being seen by some as levelling the playing field for SMEs or startups.”
Michael Sweeney, senior legal counsel at Incopro, the brand protection provider, also believes SMEs and startups have reason to celebrate. “[The] news will be welcomed by rights owners, original content creators and organisations concerned in the protection of intellectual property rights online,” he says. “Any legislation requiring major internet platforms to do more in terms of safeguarding rights – and ultimately remunerating creative endeavour – ought to be regarded as a positive development in favour of the creative economy.”
But Article 13 isn’t the only part of the Directive on Copyright people have taken issue with. Article 11, which was renamed Article 15 in the final draft, puts in place the so-called link tax. This would mean that news aggregators like Google News would have to pay publishers for using their text. However, it’s unclear exactly how much of the content these aggregators would have to use in order to cough up cash. Hyperlinking is seemingly excluded from these rules.
The news of the passing of Article 11 and 13 comes after months of campaigning from both sides. The people opposed to the Directive on Copyright included people like Wyclef Jean, Wikipedia’s co-founder Jimmy Wales and the World Wide Web father Tim Berners Lee. The latter two were among several high profile figures who signed an open letter in June 2018 against the directive.
Commenting on the vote on March 26, Julia Reda, MEP of the European Pirate Party who’ve spearheaded the opposition against the directive, called it a “[dark] day for internet freedom.”
She was hardly the only one disappointed by the new law. “This vote is a massive blow for every internet user in Europe,” said Catherine Stihler, chief executive of the Open Knowledge Foundation, the non-profit helping civil society groups access open data to take action against social problems. “MEPs have rejected pleas from millions of EU citizens to save the internet and chose instead to restrict freedom of speech and expression online. We now risk the creation of a more closed society at the very time we should be using digital advances to build a more open world where knowledge creates power for the many, not the few.”
The supporters of the directive included artists Debbie Harry, Paul McCartney and IMPALA, the lobby organisation for the European independent music companies.
“To those who voted yes, thank you for standing up under considerable pressure,” said Helen Smith, executive chair of IMPALA after the vote on March 26. “A landmark text has now been adopted. Our members and their artists have been promoting user generated models since they signed a deal with Napster nearly 20 years ago and this modernisation is much needed.”
UK Labour MEP Mary Honeyball also welcomed the vote. “A real victory for European culture and creators’ rights,” she tweeted.
So what happens now? “The key focus now will be on how the directive is implemented across the EU over the next two years and care will need to be taken to ensure that smaller services aren’t disproportionately disadvantaged by measures which are in reality designed to curtail the formerly unchecked power of the tech giants,” says Raffaella De Santis, associate at Harbottle & Lewis, the law firm.
And this two-year timeframe might mean neither Article 11 or 13 will actually be implemented in the UK. “With Brexit on the horizon for the UK, it’s unclear at the moment when it would come into force in this country,” says Shriane.
So to find out how Blighty’s businesses will be affected by the vote, you’d have to wait 24 months. The question is if there’s anybody who’s got time for that.