Everything You Need to Know about the European Union’s “Article 13”
Article 13, a new copyright regulation, recently passed the European Parliament. It’s important. This article covers the nuts and bolts, but if you want the big picture about why Article 13 matters, read this excellent op-ed by Artist Rights Alliance board member, Rosanne Cash.
E.U. lawmakers bravely withstood a tech-funded online scare campaign making phony claims that Article 13 would “break the internet” and even sillier ones that it would “ban memes.” They stood up for a fair and responsible internet for future generations.
What is Article 13?
Article 13 is a “directive” (more on that shortly) by the European Union setting forth new regulations to better protect music creators and other artists. It requires tech platforms to be more active in finding and removing unlicensed and pirated creative works.
(A minor point, shortly before passage, the EU redesignated the measure as Article 17, so that’s likely how it will be referred to in the future.)
OK, what’s a directive?
In broad strokes, a directive is a measure passed by the European Union that “directs” member nations to change their laws and details policy changes they must put in place.
What problem is Article 13 trying to solve?
Big tech platforms like Google’s YouTube service allow users to upload files and videos. Those files are often recorded music that hasn’t been licensed, meaning the people who made the music don’t get paid when the music is played on YouTube and other platforms. It’s 21st Century piracy, at an unbelievably massive scale.
Today, nearly half of all music streaming occurs over YouTube, and almost 38% of global listening is unlicensed — and uncompensated for artists.
That a lot of lost wages for musicians, especially since YouTube and its peers get paid no matter what. These platforms put ads before and alongside all their music, whether licensed or not, generating revenue for themselves even while artists get shut out.
They get away with this because of antiquated shields against legal liability called “safe harbors,” designed years ago before the modern internet emerged. Article 13 seeks to update these safe harbors for the problems of today.
What does Article 13 do?
For big, established companies (ones that aren’t brand new start-ups and have high revenues already), Article 13 creates three new obligations in the EU:
1. That they make best efforts to license any copyrighted material on their platforms.
2. That they promptly take down unlicensed copyrighted material when they are given notice of it.
3. That once they take down copyrighted material, they also make best efforts to ensure no additional copies of that work pop back up on their platforms.
In sum, it requires that big tech companies take a more proactive, responsible role in ensuring copyright owners aren’t ripped off.
That’s a lot. What’s the most significant change from what they do today?
The most significant change is the third one that requires them not just to take down pirated music they get a specific notice about, but to make efforts to be sure other copies don’t appear. Advocates for creators have sought this for years, often called “Notice and Staydown.” It would end the game of “whack a mole” where every time an artist sends a notice to have an unlicensed copy of her work taken down, a new one almost immediately pops up. Under Article 13, tech needs to work to be sure all copies “stay down.”
That’s great! That means it’s now the law in the EU, right?
Not quite. Following the passage of the directive, EU Member states must go through their lawmaking process to bring their laws into conformity with the directive. That will take several months.
What about the United States?
The U.S. has the same problem the EU sought to address. Under an outdated law called the Digital Millenium Copyright Act (“DMCA”), big tech companies receive a safe harbor with no requirement that they take proactive measures to prevent unlicensed copies.
Musicians lose a lot of money because of the outdated DMCA. One study estimates losses of $650 million to $1 billion!
The EU, of course, can’t direct the U.S. to change its laws. But some companies might find it unwieldy to operate one way in Europe and another way in the U.S. By default, they might make these changes everywhere. The recent European privacy directive (GDPR) had that effect, bleeding over to benefit U.S. internet users.
Even if that is not the case, it shows that reform is possible. The Artist Rights Alliance plans to make this case vigorously to U.S. policymakers. We hope we can count on you to help!