Article 13

So, recently the entire internet has been all up in arms regarding the 13th article of the so called 'Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market'. The recent uproar is astonishing considering most of the major votes have already passed. On the 20th of June the European Parliament Committee on Legal Affairs approved of the rough draft of the proposal and pitched it to the European Parliament, which also approved an updated version of the rough draft on the 12th of September. Public opposition was first voiced on a larger scale once the YouTube CEO Susan Wojcicki publicly voiced her concern and thus, tons of creators got all up in arms. Now, it's not too late for corrections since the exact wording of the proposal is still negotiated and will have to be approved by the European Parliament once more in January 2019. This instance shows though how dangerous it can be to isolate yourself from politics and think it won't have any effect on you. All those people could have known and publicly opposed the article at a way earlier stage if they hadn't had lived in their YouTube bubble, ignoring everything happening outside of said bubble.

A drawback of the public outcry first occurring upon Wojcickis call is that many share uninformed opinions and thus, endanger a educated debate about the proposal. Many adapt YouTubes narrative without second questioning it and without realizing that YouTube is not mainly concerned about the creators (which they spit on themselves on a regular basis) but about their business model not working anymore. The worst case scenario YouTube has highlighted that they might have to delete all private owned, European YouTube channels would be a deliberate decision of YouTube, not an unavoidable consequence after the proposal passes.

That said, article 13 indeed is very concerning and should be taken seriously. It basically shifts the responsibility for any kind of copyright infringement from the user to the domain in which the infringement occurs. Meaning that if a person shares copyrighted material on, for example, YouTube the rightholder can sue YouTube directly instead of only the infringer. This in return would mean that large companies such as YouTube, Twitter, or Instagram need to either purchase a license for users to share copyrighted material on their domain or ensure that nobody can use said material. According to the current draft, smaller domains must not comply with the law but, as for now, it is unspecified what accounts as "small" and "large".

The practical problem occurs when thinking about how those big companies should implement the proposed law. They only have three options:
1.) They acquire every single license in the world which is just absolutely impractical. Some years ago, YouTube had a rough negotiation with the central licensing company for music in Germany, the GEMA in which they also blocked all musical tracks for German viewers just in order to avoid any penalty fees, not because GEMA forced them to. In the end, they struck a deal. Of COURSE, itbis possible for YouTube to negotiate deals with larger companies. But what happens if you, a private corporation, draw your own comic "Donald Truck and the glorious toupee tape". YouTube then would have to avoid everybody from using the comic despite even knowing of its existence. This solution would only work if a selective few rightholders would own everything. Which we obviously don't want. We not only want competition but we also want everybody to be able to express their art online without requiring them to give up their rights. The opportunity of "broadcasting yourself" is one of the big advantages, YouTube and social media in general has to offer.

So that leaves us with option 2.) implementing content recognition technologies in order to filter out every material the domain does not have the license for. This is impractical because it still could not recognize if "Donald Truck and the glorious toupee tape" is original material of the uploader or infringed copyright of an unknown rightholder. This can set a dangerous precedent in which material is heavily filtered in order to met the high standards. Which, in the end, will cause the freedom of speech and expression to be limited because the recognition technology will more than often not be able to distinguish a proper use of material from an improper use of one. In fact, YouTube already has a similar technology and in the video game community, false flags are the norm and happen way too frequently.

Since this solution is also impractical, this only leaves option 3.) ban all privately owned European accounts from posting anything since the time and effort to either hustle after a bizillion licenses or program ridiculously expensive recognition technology which won't work properly anyway just isn't worth it. So the scenario the YouTube CEO paints isn't that unrealistic - it would just be YouTubes own decision because they feel it just isn't worth it.

And now, we must address the real elephant in the room which encompasses my biggest concern with article 13 and the proposal as a whole: up to this day, Europe still does not have a proper Fair Use Law implemented and the lack of such a law encompasses so many problems. For years, every European content creator tried to emulate the American creators by using transformative content. And yes, I'm saying "every European content creator" consciously since technically speaking, even using an artwork or a screenshot in any giving situation regardless of the context is copyright infringement and I'm sure every content creator, regardless of how original they are, has used something around the lines on some occasion. Citation rules still apply singularly to written words. Any visual or auditory art is not protected and thus, absolutely any use of copyrighted material would require a license according to article 13. And this situation has to end. If we want to discuss how we can improve the rights of the rightholders I'm all for it. But then finally tell those content creators who use transformative work, such as news or review domains, what they can use and what they cannot. And free them from the grip of the companies who can always claim copyright infringement whenever they feel like it which can be used to silence unpleasant reviewers. If we finally reach an agreement what is okay and what not, article 13 can be implemented way more aimed and focused and domains such as YouTube would have official guidelines of how to deal with copyrighted material. As for now, the proposal not just endangers the future of many creators but also feels incredibly regressive in comparison to North American laws. We don't need Japanese proportions in which a picture of copyrighted material can cause a several year lasting prison sentence. And that is where we can meet with the European Union and form a proposal which could benefit all involving parties. Unfortunately, it seems as if the Parliament currently is not interested in finding a satisfying solution. Which is why I remain concerned. If you also are concerned, I'd suggest you reach out to your local European senator and voice those concerns and offer solutions which they can carry into their negotiations.