• Eugenie Coche

Article 13 (17): Repressive storm over the Internet

Over the last two decades, developments in both digital technologies and information and communication systems have led to profound changes in the production, distribution, exploitation and consumption of creative input.[1] Although this sentence was taken from the foreword of the proposal for a directive on Copyright, the EU, with the adoption of the controversial article 13 of that directive plunged into an opaque vortex of lobbied protectionism. Besides thoughts such as how it can even be made economically possible, everyone ironically asks themselves the question aloud: who will benefit from the obligation set out in article 13 (now renamed as article 17[2]) ?

This contribution first outlines what article 13 explicitly means and the problems it can cause for businesses and its creative digital citizens. Next, the tumultuous legislative history that emerged in an even more extreme article is outlined. Concluding remarks reiterate the drawback that accompanies promulgating this article and remind readers of the essential purpose of copyright law.

Article 13: WARNING!

Article 13 states that websites such as YouTube, which offer content uploaded by its users, must proactively prevent the sharing of copyrighted material by installing upload filters that detect and remove copyrighted content. But a technological filtering system of content recognition, identical to the "filter system" that the European Court of Justice in Sabam considered inadmissible[3] and also incompatible with article 15 of the E-Directive[4], cannot distinguish between different types of legal and illegal uses.[5] So under the banner of reducing the value gap[6], appropriation art, parodies, memes, remixes and other forms of online creativity will unjustly be blocked, as a result of which it will deprive users of the space for freedom of (artistic) expression resulting from copyright exceptions, in particular the right to quote and the right to parody.[7]

Wally Wood - Disney's memorial orgy (1967)

Otherwise platforms are directly liable for the content and in order to avoid a fine, platforms will, based on their terms and conditions, filter content more quickly and remove it arbitrarily. Since the proposal does not contain rules for Internet users that make clear how they can legally reuse and share content, the result is that users have less access to information and will not be able to share their content with others, even if it is legal. Furthermore, if the blocking takes place under the pretext of a breach of the terms and conditions[8] rather than as a result of a specific copyright claim, all complaint mechanisms will easily be circumvented. Finally, because platforms have to license all content that can be uploaded to their platform and right holders have no obligation to negotiate with platforms, this reversal of responsibilities between right holders and Internet Service Providers (ISP) violate articles 12 to 14 of the E-Directive.[9]

Legislative pulling and pushing

Despite the articles’ disruptive nature, the majority of European parliamentarians voted in favour of the copyright law and upload filters on 21 June 2018.[10] But on 4 July 2018, the European Parliament whistled back the controversial law.[11]

(Free) memes

For this reason, amendments to article 13 were being proposed and adopted by the European Parliament in September. But in January, once again, there was a clash with a vote by the Member States. Eleven countries, including Belgium, voted against and there was a bickering between France and Germany on article 13 in particular. Germany requested an exemption from the obligation to install an upload filter for small businesses with an annual turnover of less than €20 million. By contrast, France believes that the obligations imposed should apply to all. After some discussion, a compromise was found in which both countries could agree, as is evident from a new leaked draft.[12] In this new deal, upload filters would apply to all for-profit platforms, except those services which fit following strict criteria:

Ø Available to the public for less than 3 years

Ø Annual turnover below €10 million

Ø Fewer than 5 million unique monthly visitors[13]

Even though copyright infringement is currently not a problem for countless of app's and ISP's, they that do not meet these criteria will be burdened with the instalment of expensive filters. This will only allow deep-bagged ISP’s to meet the requirements of article 13 and even if small companies are exempted from the scope, it simply means that they cannot scale up and compete with the large American ISPs.

On 18 February 2019, the stalemate ended and the EU national governments adopted the amended agreement reached between the two countries.[14] Although 5 million people supported the petition against the controversial article and 200 000 people took to the streets, on the 26th of March the European Parliament did not listen to its concerned citizens. Member states have now two years to implement the reform into their national legislation. The only leeway concerns the scope, in particular how many, of ISPs. Regardless of the fact that we, citizens with a public interest, were ignored in the legislative process, we should also remember that an entire generation of digital natives mobilised themselves against the privatisation of our Internet.

Photo (creative commons) by-nc-sa


I would like to remind the reader that copyright is not a divine right, as can be thought of on the basis of a wayward interpretation of Locke or Hegel's theory of natural law, but is itself an exception to free use and that outside the legally defined monopoly, this freedom, based on autonomy, expression, enterprise, ..., returns. European legislators and policy makers must therefore recognise that promoting innovation and creativity depends on the freedom to build on the ideas and expressions of others.

Ai Kijima, "FT," 2012, mixed media, 8 x 12". Courtesy of the artist

Although this could have been the ideal moment to introduce a future-proof actualisation and conscientious rebalancing of copyright, the EU has fully taken sides with institutional rights holders and sizable businesses. The mechanism set out in article 13 can serve as a censorship machine, potentially violating the fundamental rights of users, namely articles 8 (protection of personal data), 11 (freedom of expression), 13 (freedom of the arts) and 16 (freedom to conduct a business) of the EU Charter of Fundamental Rights, and disrupting the existing European legal framework, mainly the relationship with the E-commerce directive (2000/31/EC).[15] Generally, article 13 will damage the online economy and creativity and could make the daily enriching use of ISP’s more difficult for the 441 million Internet users in the EU.

This law is not only a slap in the face for artists experimenting with transgressive (digital) art but it also makes literally everyone, regardless of commercial or non-commercial purposes, in the Remix culture[16], current creative internet culture, a potential pirate. In view of the margin of discretion in implementing this article, I agree with the scientific[17] and social consensus[18] "that article 13 cannot be allowed to stand." Therefore I will advocate in the upcoming posts why the EU urgently need a copyright exception, a new one or an adaptation (à la fair use) of article 5 Infosoc-directive, which would let current creative endeavors flourish and progress.

Ai Kijima, "Rebel to the End," 2012, mixed media, 54 x 65"

[1] Proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market, 14 September 2016, COM(2016) 593 final 2016/280 (COD)., p. 2.

[2] Irrespective of the change of name, Article 13 is engraved in people's memories, which is why this contribution refers to Article 13.

[3] ECJ 16 February 2012, C-360/10, SABAM v. Netlog, ECLI:EU:C:2012:85:para 53

[4] Ibid.

[5] Create (22 February 2017). Copyright Reform: Open letter from European Research Centres, p. 6. http://www.create.ac.uk/wpcontent/uploads/2017/02/OpenLetter_EU_Copyright_Reform_22_02_2017.pdf (consulted on 2 May 2017) (hereinafter Open letter (2017)

[6] a discrepancy between the value that ISP derives from content (music, videos, images) and the income that benefits the right holders

[7] Ibid, p. 1

[8] Another legal issue see Coche, E. (5 November 2018), Privatised Enforcement and the Right to Freedom of Expression in a World Confronted With Terrorism Propaganda Online (November 5, 2018). Internet Policy Review 7(4)

[9] Create (22 February 2017). Copyright Reform: Open letter from European Research Centres, p. 6. http://www.create.ac.uk/wpcontent/uploads/2017/02/OpenLetter_EU_Copyright_Reform_22_02_2017.pdf (consulted on 26 February 2019)

[10] Reda, J. (21 June 2018)., Deze Europarlementariërs hebben vandaag besloten het internet in Europa te beknotten, maar we geven niet op, https://juliareda.eu/2018/06/we-geven-niet-op/ (consulted on 25 February 2019)

[11] BBC (5 juli 2018)., Controversial copyright law rejected by EU parliament, https://www.bbc.com/news/technology-44712475 (consulted on 25 February 2019)

[12] Reda, J. (5 February 2019)., Article 13 is back on- and it got worse, not better, https://juliareda.eu/2019/02/article-13-worse/ (consulted on 26 February 2019)

[13] Proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market- update of negotiating mandate, 4 February 2019, OR (2019) 5893/19, 2016/0280 (COD), p. 1-6. https://www.politico.eu/wp-content/uploads/2019/02/Mandate-Romania-February-8.pdf (consulted on 26 February)

[14] Reda, J. (18 February 2019)., EU-raad geeft groen licht voor de meest extreme versie van artikel 13, https://juliareda.eu/2019/02/meest-extreme-artikel-13/ (consulted on 26 February 2019)

[15] Communia Association (14 september 2017)., Updated position paper: Article 13 remains a terrible idea and needs to be deleted https://www.communia-association.org/2017/09/14/updated-position-paper- article-13-remains-terrible-idea-needs-deleted/ (consulted on 26 February 2019)

[16] Term borrowed from Lessig, L. (2008)., Remix: Making Art and Commerce Thrive in the Hybrid Economy. New York: Penguin Press

[17] Open letter (2017)., p. 5-7. (Signed by 57 leading IE specialists from institutes across Europe) ; Open letter (12 juni 2018) Article 13 of the EU Copyright Directive Threatens the Internet https://www.eff.org/files/2018/06/12/article13letter.pdf (consulted on 26 February 2019)

[18] There are several petitions out. 5 million users signed this petition already https://www.change.org/p/european-parliament-stop-the-censorship-machinery-save-the-internet

Dod (12 September 2018)., Europees Parlement keurt omstreden hervorming auteursrecht goed, http://www.standaard.be/cnt/dmf20180912_03738619 (consulted on 26 February 2019)

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