The European Union Directive on the amendment of copyright law, which also contained the controversial Article 13, has provoked numerous reactions both online and from important figures in the legal world.

On 20 June 2018, the Committee on Legal Affairs (JURI) of the European Union adopted the proposal of MEP Axel Voss, a decision that led many other parliamentarians to propose his vote in plenary.

At the hearing of 5 July 2018, it was rediscussed and rejected with a number of 318 votes against and 278 in favour. Following this decision, the European Union’s reforms of copyright law will be debated again in September this year, thus giving more time for lawmakers to amend the regulations, taking into account its framing in an internet era.

The proposed directive has faced fierce criticism from legislative experts and digital rights groups, who have seen the potential legislation as a mere censorship mask. The main point concerned is Article 13, which aims to regulate content protected by so-called ‘information society service providers’ (ISSPs), which store and provide access to material uploaded by users.

On the surface, the directive was seen as an action by the European Union to correct the disparity between the income generated by the holders of protected content and the online platforms that store that content. She has been endorsed by a number of important personalities in the music industry, such as Sir Paul McCartney.

However, the point of conflict was created by the proposed ways to solve the problem. In order to get a clearer picture of the reasons for the heated debate on this legislation, we will answer the key questions below.

What is Article 13?

Article 13, contained in the Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, is an attempt to redefine copyright law in the context of the digital age. It targets the interaction between copyright holders and online platforms, forcing the latter to impose stricter regulations on protected content.

According to that document, platform providers must take “measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the making available, through their services, of works or other subject-matter identified by rightholders in cooperation with service providers”.

At first glance, this directive does not appear to infringe fundamental rights or limit online access to information. However, we will still see its major problems.

Why did Article 13 provoke negative reactions?

Critics of the directive strongly argue that it violates the fundamental rights of users, contradicts the rules previously set out in the European Union Directive on Electronic Commerce, and generally misunderstands how people consume content on the internet. The existence of user-generated content, such as memes and remixes, is put at risk, as it can be considered copyright infringements.

Under the legislative proposal, platforms such as Google and Facebook will be obliged to use filtering systems for content deemed to infringe copyright. Independent media outlets will have to pay for the right to distribute articles and other content of news organizations, which can create a link fee. This will have a detrimental effect on platforms such as Google, Twitter and Facebook, which rely on the sharing of news content, images and videos.

The article stipulates that these ISSPs will have to remove materials created by someone other than the uploader. In the online environment, however, this culture of remixing and reproduction is essential for online communities. It is broadly defined by the term fair use, which allows parts of content to be used without copyright infringement and without the permission of the owners, for the purpose of criticism, parody, reporting or information. The new regulations, however, would jeopardize this legal concept.

Who are the detractors of Article 13?

In response to the legislative proposal, 70 leading figures in the tech industry, including World Wide Web inventor Tim Berners-Lee and Wikipedia co-founder Jimmy Wales, signed a letter against it, warning that the directive could destroy the internet. Thus, there is a danger that it will be transformed from an open environment of distribution and innovation into a tool of control and supervision.

In protest against Article 13, the Spanish and Italian versions of Wikipedia blocked users’ access to the platforms for several days, stating that it would impose new barriers to content distribution.

Mozilla, the company that created the Firefox browser, is another opponent of the directive, arguing that it will make it unduly easier to filter and block online content.

According to Copybuzz, a copyright initiative, the law could also affect digital startups in the European Union. In an extended statement, they say that the reasons for operating startups in this region will be practically non-existent, as they will be able to choose a place with laws corresponding to the digital age. Moreover, investments in companies operating in the European Union will be reduced, as the obligation to filter and self-censor decreases their attractiveness.

The new directive puts fundamental rights and freedoms at risk. The Max Planck Institute for Innovation and Competition has drawn attention to the fact that certain paragraphs of the Article may give rise to abusive behavior on the part of some platforms, affecting users’ freedoms of expression and information.

In the same vein, 56 academics from renowned universities around the world published a set of recommendations, while concluding that the article is incompatible with fundamental rights and freedoms. Filtering content in this manner would be a violation of the freedom of expression guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union.

Who are the supporters of Article 13?

Although reactions to the new legislative proposal have been largely negative, there are also individuals and institutions that support the implementation of the directive.

Among them is Paul McCartney, the former member of the band Beatles, who cites the refusal of some platforms to compensate artists for videos published by various users. In the letter in which he expresses his support for the law, he also states that it could solve the difference in value created between the platforms’ earnings and the amounts they pay to content creators.

Former UK MP and current UK Music CEO Michael Dugger has also voiced support for copyright law, accusing platforms like Google of discriminating against creators and investors who generate music shared on Youtube. He also accuses the disinformation supported by large companies regarding the new legislation.

What is the future of Article 13?

Regardless of the intentions of the Digital Single Market Copyright Directive, the next step is to debate it in September, when a reinterpretation of it will be possible to offer it by the European Union legislature.

Even though it was designed to prevent pirated audio and video content from streaming online, the law encompasses all online material, such as images, videos, software, code, and written content. An extreme case is that of memes, which could be banned due to the use of copyrighted materials.

Resolving this conflict must take into account both parties: users (and their fundamental rights) and creators (along with the right to the materials created).