Hey, guys! It’s me, your friendly neighborhood law student!
I am seeing this circling my dashboard (yet again) and I would like to say a few things about it. Once again, as I have stated before when I’ve weighed in on something, I am not a lawyer (yet). But, that being said…
Please stop being sensationalist. There are many legitimate criticisms of this directive, but these are not the criticisms I am seeing being spread around. Instead, what’s being spread around amounts to fearmongering. I don’t blame you for doing so - the vast majority of this is being started by the people this will hit hardest, AKA big corporate giants such as Google, Amazon and Microsoft. They have the kind of press pull that very easily leads to this kind of panic.
So, for any of my followers having anxiety about this, let me soothe your worries and address them point by point.
1. “This will destroy the internet in two weeks”
No, no, it won’t. This is a directive, meaning (unlike, say, the the last thing to bring my work onto my tumblr, the fucking GDPR) that it leaves the goals of the directive open to somewhat free implementation by member states, as long as the basic goals of the directive are met on time. As such, it will be years before we actually see any binding legislation as a result of this directive, and how member states choose to implement it will vary on the state in question.
2. “Article 11 will completely restrict the use of links”
Article 11, AKA what is being referred to as the link tax, essentially implements what we call the ancillary copyright of press publishers. This right gives press publishers the right to demand compensation when snippets of their content are displayed on other web pages. So, essentially, this is an article almost directly designed to bop Google (who currently holds the kind of leading market position that the EU sees as incredibly problematic because it kind of goes against everything the EU stands for) on the nose. This would force Google (and, with it, other companies) to compensate the writers of articles that are mirrored to their sites in a truncated form, often leading to less traffic to the actual site in question and thus the mirroring site gaining the revenue that would otherwise be due to the writer of the article.
Now - there are legitimate criticisms of this, which mostly hinge on the fact that forcing people to pay the content creator for content they are using may lead some people to stop using that content. Personally, I think it’s better for people to receive compensation for their work, even if it comes at the cost of less sharing of the work. You are allowed to disagree. The most legitimate form of criticism of this article, in my humble opinion, is that it may lead to a picking and choosing of what content to share and what not to. The thing is - is this not something that is being done already? What does this article add to that other than to make sure that if you do choose to share someone else’s work, that other party gets compensated accordingly?
3. “Article 13 will destroy fandom culture”
No, no, it won’t. The vast majority of fandom culture falls under what US law refers to as fair use and most European national laws (which, in the case of EU countries, are harmonized according to the European Union Copyright Directive) refer to as private use. Article 13 in and of itself does not change the allowances made for private use of media in derivative works already. It merely mandates that companies must take effective measures to stop the users of their services from sharing media that infringes on copyright.
Again, I am in the boring camp of agreeing with the EU - I believe it is better for people to be compensated for their work. If the way we are currently using media in fandom is infringing on copyright, then I think we should stop using it that way. You are entirely welcome to disagree with me on this. Notice how the wording of the article constantly emphasizes how measures taken must be appropriate and proportionate. How the the content recognition technology is mentioned as an example of effective measures that could be taken to stop the uploading and sharing of copyrighted works, not as the only way of doing so. Notice how the entire third paragraph of this article deals with best practices and appropriate and proportionate technology which takes into account the availability and effectiveness of technology - so, essentially, if it sucks and flags too many things as infringing on copyright, it should not be used because it is not appropriate, proportionate or effective. And that’s right there in the directive.
And, yet again, there are legitimate criticisms of this article, including the one mentioned in the OP I am replying to regarding the limitations of sharing copyrighted material on, say, Youtube. That’s true - but you haven’t been allowed to upload full films onto Youtube as is, have you? Videos with copyrighted music in the background have been muted or deleted, as well. The most legitimate criticism I’ve seen is that these automatic copyright infringement flagging algorithms are generally overzealous, and this could lead to over-censoring of content that would actually fall under fair use/personal use/whatever you want to call it. That’s true, very true - but the article doesn’t require countries to enforce algorithms being used if they don’t work as they should. See above paragraph.
So, in conclusion: yes, this directive could stand to be worded better. Yes, it may technically lead to the kinds of doomsday scenarios people are imagining - but I really don’t think it will. In fact, I doubt you’ll notice much difference when (in a few years) these laws actually start getting implemented. Notice how no one has heard about the GDPR for like three weeks now, even though we’re living in that supposedly apocalyptic post-GDPR world? (I say, bitterly, as I wade through piles of GDPR every day at work… :D)
Still don’t like the directive proposal? That’s totally fine. By all means, call up your MEP, take a stand! Now, you’re doing it for the right reasons.
Articles cited retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0593 on 21.06.18 at around 10AM GMT.
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