Negotiations about the EU copyright reform law have resumed: After missing the original Christmas deadline, negotiators for the European Parliament and Council are now aiming to finalise the text on January 21, 2019.

The negotiators have reached agreement on the core of Article 13, which will change the internet as we know it: They want to make internet platforms directly liable for any copyright infringements their users commit.

What remains to be decided: Exactly what lengths will platforms need to go to to avoid or limit their liability? Just how much they will need to restrict our ability to post and share our creations online?

New timeline

January 18 — National governments vote on the Council’s position ahead of the final negotiation. This is the moment of truth for EU member state governments: Will Italy keep its promise to vote against? Will Germany do so as announced, unless small businesses are excluded? Will Poland keep supporting the bill, although every single Polish MEP of the governing party voted against?

January 21 — Trilogue negotiations between Parliament and Council: Attempt to finalise the text

March/April — Final vote in the Council

March 25-28, or possibly March 11-14, April 4 or April 15-18 (tbd) — Final vote in the European Parliament

* * *

Article 13 current status

(Download current negotiation documents: Articles, Recitals)

FINAL Article 13 applies to internet platforms that organise and promote large amounts of copyright-protected works uploaded by their users in order to make a profit.

  • Note that “copyright-protected” does not mean “copyright-infringing”! All creative texts, photos, videos etc. are automatically copyrighted, so this applies to all platforms where users express themselves, like Facebook, Instagram, Tumblr, TikTok, Twitch, Wattpad, Imgur, Giphy, etc. etc.

FINAL These platorms are liable for copyright infringement by their users.

  • This is the core provision: Legally, anything we post to platforms will be treated as if employees of the platform had uploaded it themselves. If even a single user commits a copyright infringement, it will be viewed as if the platform had done so itself. This will force platforms to take drastic measures, since they can never say for certain which of our posts or uploads will expose them to costly liability. They may well need to restrict who is allowed to post/upload content in the first place, demand personal identification from uploaders and/or block most uploads using overly strict filters to be on the safe side.

FINAL Licenses that platforms take out cover uploads by their users, as long as they act non-commercially or “don’t generate significant revenues”

  • For example: If YouTube negotiates a license with a film studio for their trailers, casual users will then no longer be blocked from uploading these trailers (and adding commentary, for example) – but not professional vloggers who make a living on the platform, who would be “acting commercially”

FINAL The law should not result in a “general monitoring obligation”, which is forbidden by current EU law

  • This is merely window dressing: Even if Article 13 doesn’t explicitly establish such an obligation, it will lead platforms to monitor all user uploads anyway.

FINAL Uploaders can complain about blocked uploads and request impartial, human review.

  • This doesn’t change the fact that users like you and me will be considered “guilty until proven innocent”

FINAL The Commission shall organize debates between platforms, rightholders and user associations and consider their input when they publish guidelines on exactly how to best comply with the law.

  • This is unlikely to alleviate any of the negative effects, as it won’t change the letter of the law.

TBC If platforms do not have authorisation, they must put in place upload filters (stated as: cooperate with rightholders to ensure that works they’ve been informed about never appear online).

  • Platforms will never have authorisation for all copyright-protected content in the world, so this will always apply.

TBC Platforms run by startups (small and micro-sized businesses) are exempted from the law.

  • This was one of the European Parliament’s main improvements to the text. Unfortunately, it is now in danger of being dropped in negotiations.

TBC How much platforms must do shall be proportional to their size, the amount of works they host, and whether “suitable and effective” upload filters are available.

  • This provision will need to be interpreted by courts on a case-by-case basis. To avoid risky and expensive court cases, platforms will comply regardless of these factors to be on the safe side.

TBC Legal content should not be blocked.

  • Wishful thinking: Automatic filters remain fundamentally unable to distinguish between infringement and legitimate uses such as parody.

CONTROVERSIAL If platforms can demonstrate they have done everything they can (e.g. deploying the strictest possible upload filters) they shall not be liable for infringing uploads that slip through.

CONTROVERSIAL When infringements do slip through, rightholders may request that they be taken down and prevented from being reuploaded in the future – if platforms don’t comply, they are liable.

  • Such a “staydown” procedure requires upload filters: Platforms need to surveil all user posts to identify reuploads of reported works. Council is insisting on this, and would apply it even to those platforms not required by Article 13 to otherwise filter (e.g. because they are small).

CONTROVERSIAL Parodies and other uses of existing works uploaded for non-commercial purposes, or which don’t generate significant revenue, should remain online.

  • A restatement of several existing copyright exceptions, but mandatory for all member states in this context, which the exceptions aren’t (that’s good!) and limited to non-commercial/unsuccessful uses (that’s bad – should parody only be allowed if nobody’s watching?). It remains entirely unclear how this ought to be achieved, since algorithms can’t ensure it.

* * *
Regardless of the open points, it’s now for certain: The final text of Article 13 will force the internet platforms that we all rely on to express ourselves online to install upload filters and/or otherwise restrict our ability to post and share content. We can’t let that happen.

Your elected representatives in the European Parliament will have one last chance to reject Article 13 when it comes up for the final vote just before the next EU elections. Get ready to reach out to your MEPs!

To the extent possible under law, the creator has waived all copyright and related or neighboring rights to this work.

My name is Julia, I'm the Pirate in the European Parliament.

I'm fighting to make copyright in the EU unified, progressive and fit for the future. Will you join me?

26 comments

  1. 1
    Susan Hughes

    https://www.eff.org/cyberspace-independence
    There is a speech by John Perry Barlow in this site that will help you Julia. It is very powerful.

  2. 2

    For as bad as it is I have to thank you for keeping to fight the good fight. If nothing else I’m glad those for an open Internet have managed to limit this article to websites that are there to make a profit. I know it isn’t much, but as someone who works in the non-profit sector it means a lot to me that we can continue to do our work without an added expense of filters.

  3. 3

    what *can* we do? Is there a platform we can use to streamline and make contact easier, like the changecopyright one, that doesn’t work anymore?

  4. 4

    Thank you for continuing to fight the good fight. While the text is still horrible I can tell the effort you’ve put into making it “less bad” in aspects like it only applying to for profit websites, and having websites filtering responsibility only applying to what they are informed about rather than having companies say “you are infringing our content” without even telling websites it exists and to add it to filter lists.

    I hope the attempt to shoot this down in the final parliament vote succeeds, and if not I know you will keep on fighting and challenging aspects in court even then as countries move it into law over the next year or two. Truly it is your efforts that has even pushed the vote this far back as is, pushing an extra trilogue meeting and allowing more time for protests and contact with parliament members.

  5. 5

    It would be great if I had any clue how to reach my country’s EP representatives. Is there some central EP site to place messages?

  6. 6

    Thanks for the info. Just to clarify, this is enforced liability and not the likes of DMCA? I guess if site owners are given a chance to rectify another users’ behavior then it’s not as bad, but is this the case?

    • Christopher Clay

      The liability applies the moment an infringement goes online, regardless of when/whether a platform is notified by the rightsholder.

  7. 7

    Internet platforms will put filters into place to lock out all Europeans.

  8. 8

    Are webhosting companies also considered as plaforms? If this would be the case, then many small websites (like my personal website) in the EU are affected as well. If this is not the case, then maybe we will return to the 1990 where people had personal websites with links to other websites.

    • Christopher Clay

      No, they are not.

      • Esa Pulkkinen

        How I read the definition of OCSSP, web hosting companies would definitely be considered as OCSSP because they allow users to upload content that will be visible on the web page. Whether the service “organises and promotes” the content is slightly unclear there, but probably simply having unique URL for each customer and their content would qualify as organizing.

        • Christopher Clay

          ISPs are not intended to be covered by the authors of this. They don’t “organize” (providing URLs = hosting) and certainly don’t “promote”.

  9. 9
    Philip Deegan

    Comments are moderated!? CENSORSHIP! D:

  10. 10

    Go on! Go forwards!
    For the freedom of the future.

  11. 11

    This is bad law, totally trying to solve a problem by requiring someone else to police it. So typical of why Great Britain wants out of Brussels control. What’s next? Newspapers, magazines? Hold the maker responsible; don’t shoot the messenger. If this holds up it will mark the end of the value of social media if not those platforms as well.

  12. 12

    I’m Estonian citizen, what do you recommend we should do or what can we do to stop it?

    • Christopher Clay

      Let your MEPs know, ideally with a phone call to their office during business hours, that this issue is important to you, that you think Article 13 will harm your freedoms and rights (give examples) despite all possibly good intentions, and that this will determine your vote in the upcoming EU elections (in May). There are only 6, their contact details are here: http://www.europarl.europa.eu/meps/en/home

  13. 13
    ΧΡΗΣΤΟΣ

    YOUTUBE: is a way that people can share content each other, new ideas, different opinions and further more YOUTUBE can entertain people specially these days beacuse we all need a little bit more entertainment in our life with all these disasters that we have to overcome. The youtube policy so far was good and able to satisfy both artists and video producers. So why European Union expressed the need to adopt as much as possible measures in the field of copyright? Also this article wil alienate all the european from the rest of the youtube world, personally im very sad about this decision, as a European im feel very miserable beacuse a media that i LOVE is going to become a place without including any creativity in the future videos and dont be able to entertain me or even teach me something. I believe a law like this is not neccessary enough so as to be able to stop a content creator’s freedom of speech and show. I know that my opinion was very casual but was a text full of worries of a daily European inhabitant.

    Thank you for your attention <3

  14. 14

    What even is the point of this? What good do they think can come of this? This is an honest question! I mean, how could something happen that would result in THIS being the solution!? If everyone is so against it then who in their right mind would come out and start this!?

  15. 15
    Robert Bentley

    What can Canadians do to help out ? I run an ad free YouTube chanel and find this whole thing absurd ! My thoughts and prayers to all affected . Reach me at my e-mail as this was forward to me on ps4 thanks :)

  16. 16

    SAVE OUR MEMES

  17. 17

    “Final(s)” french translation (of this article) available at : https://www.developpez.com/actu/240839/L-article-13-est-presque-termine-et-va-changer-l-Internet-tel-que-nous-le-connaissons-les-negociateurs-sont-parvenus-a-un-accord-sur-le-fondement/ ( midlle page).

    No thanks needed, just remind to slap/punch every “representatives” of pirate party France when you meet (they know why).

  18. 18

    Those who want censorship to be implemented by a software, would they agree to be judged and sentenced by a software developed by a private company if they were prosecuted for a crime or for corruption ?
    They should think about that…

  19. 19
    Dennis Nilsson

    The law should be revoked by the European Court of Justice, as it is not permitted under current EU law with pre-censorship, which this law requires!

    “The law should not result in a” general monitoring obligation “, which is forbidden by current EU law”

    The last word is not said. Gutenberg, the creator of the printing press, also had his setbacks.

  20. 20
    Luneko kun

    How long will article 13 last?!

What do you think?