Europe’s Directive on Copyright in the Digital Single Market: Article 13

The European Union has made news again by passing a new comprehensive intellectual property directive that may have big impact on copyright law across the globe. In this blog post, we discuss the most highly-debated portion of the directive, Article 13, which has critics claiming that the directive will have a chilling effect on content creators online and cost hosting sites millions annually in regulation.

A Discussion on the Directive and Article 13

The European Union Directive on Copyright in the Digital Single Market is a directive from the European Union that sets limits for how copyrighted works may be shared online. Unlike actual law or legislation, European Union directives are objectives that European Union regulators believe that member states of the European Union should strive to meet but are not necessarily required to do so.

Article 13, the most controversial section of the directive, requires online web platforms to both filter and/or remove any copyrighted material from their services or websites. As such, this initiative would make a plethora of website and online services, such as YouTube or Tumblr, liable for copyright infringement from simply hosting copyrighted material that users upload.  Because the speed at which users upload copyrighted material onto hosting websites is arguably impossible to police, this would open hosting websites to copyright violations they previously were not held responsible for.

The Effects Article 13 Could Have on Web Hosting Providers 

Currently, websites and hosting services are generally required to remove copyrighted material after receiving notice from the copyright owner, leaving policing of the copyrighted work in the hands of the copyright owner.  Article 13 would flip this procedure on its head, making hosting services and platforms responsible for ensuring that there is no copyrighted material on their sites.  

Additionally, Article 13 has many content creators concerned about whether or not their use of copyrighted work in their new works that may include parody, meme creation, or online streaming will make them subject to liability for copyright infringement.  

The Directive’s Criteria Regarding Use of Automated Upload Filters

Currently, Article 13 only sets out three criteria that will allow a website to avoid having to use an automated upload filter: 1. it has been online for fewer than three (3) years; 2. it has annual turnover below 10 million Euro; and 3. it has fewer than five (5) million unique monthly visitors.  Thus, this clearly means that the majority of popular online service giants such as Facebook and Twitter would have to rely on some sort of automated upload filter to meet the requirements of Article 13.  

As such, technology giants such as Twitter, Facebook, and YouTube are concerned that Article 13 does not adequately address how websites of their size are supposed to handle such responsibilities.  While earlier drafts of the Directive referred to automated filters, the use of automated filter-recognition systems have been heavily criticized by the industry for often triggering an abundant amount of false positives and as well as for its potential for abuse.  

What Does the Directive and Article 13 Mean to the Intellectual Property Field?

While it is currently only a directive, it will be interesting to see how the member states of the European Union will take the directive and whether it will eventually go on to be passed as law, or returned to the drafting table for more tweaks. And, though the directive is a European directive, the outcome will have a global impact and make waves in intellectual property law, much as has been seen with Europe’s General Data Protection Regulation (GDPR) law implemented in 2018.

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