Article 13 is dead. Killed by Brexit

Article 13 is infamous before it has even become law. Unlucky for some, its main aim is to prevent the infringement of copyright by users on social media. The reason it is controversial is that it makes YouTube, Facebook and Instagram liable for copyright infringement.

The current situation

Until now, social media providers have been able to avail themselves of the “mere conduit” exemption in Article 12 of the e-Commerce Directive. This means they can claim they were not providing the infringing content, just the means by which someone else uploaded the content. As soon as the rightsholder informs them a user has uploaded their copyrighted content, the provider must resolve the issue (normally by removing the content) or they become liable themselves. Of course, social media sites use tools such as YouTube’s Content ID or Facebook’s Rights Manager to try to identify material as users upload it. Rightsholders can supply their copyright material and the tools scan videos, photos etc. which to detect that material. The rightsholder then has some control: they can ignore the violation, claim ad revenue or have the content removed. This system is far from perfect. Universal Music estimates that no more than 40% of infringing material is flagged.

What will change?

Article 13 is so famous that nobody seems to know it is now Article 17! In future, Article 17 (fka 13) of the Digital Single Market Directive will shift the onus onto the social media sites. By hosting this content, they will become responsible for obtaining authorisation. This means the sites will have to negotiate licences with the rightsholders. But it is worth nothing that:

  • A site may be protected if it used best efforts to get a licensing agreement but failed and then uses best efforts to “ensure the unavailability of specific works” and then act expeditiously to remove content upon request by the rightsholder.
  • It doesn’t apply to sites less than three years old, have fewer than 5 million users and a turnover of less than €10 million.
  • Memes will survive. An exemption covers use for “caricature, parody or pastiche”. It also covers quotation, criticism, review.

It’s not popular

Protestors such as MEP Julia Reda have complained Article 13 would “allow rightsholders to bully any commercial site or app that includes a posting function“. But that’s not surprising as she was a member of the Pirate Party until recently and has declared she will focus on copyright reform as MEP.

We await to see how it will look in national law since this is a Directive, which means the EU member states have some discretion on how to implement this into their law.

The UK won’t get it

Even the UK government doesn’t know whether Article 13 is good or bad. The UK was one of the early supporters of this legislation. But Boris Johnson – then a backbencher, now Prime Minister of course – tweeted in March 2019 that it was “terrible for the internet”. And recently the Minister of Universities & Science, Chris Skidmore, indicated the UK would not implement the Directive at all because of Brexit. So, it will be business as usual inside the UK but the social media sites will have to adopt a different policy for the EU where it will apply as planned. Is this a great opportunity for social media sites to use Brexit to avoid excessive EU “red tape”? Will this benefit users and social media sites to the detriment of rightsholders?

No. In reality, social media sites will likely adopt the same approach for the UK as for the rest of the EU to avoid having a dual system.

If you need advice, contact me or +44 (0) 20 7611 2338.

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