If you have heard or read such alarmist statements as that ‘the end of the internet as we know it’ is approaching with the approval of Article 13 (now renamed Article 17) RGPD (General Data Protection Regulation), do not worry before of time.
There is some misinformation about how this Copyright Directive will affect once it is put into practice, given that it was approved on March 26, 2019 in the European Parliament with 348 votes in favor and 274 against.
How did the memes end ? Should we fear article 13? Let’s go through parts to break up all this mess.
So far, digital content is regulated by the European Ecommerce Directive, approved in 2001. Of this Directive, each member country produces its own version. In the case of Spain, the Information Society Services Law was enacted.
But since then, the internet has evolved a lot. The new regulation, recently approved, is the answer to a need resulting from technological evolution and new services of the information society. That is, until now, publications such as parodies, criticisms, memes, etc. , were in a kind of ‘legal vacuum’. of third-party content that content creators, media or individuals regularly upload to the network.
What the well-known and feared Article 13 does is recognize the existence of this type of publication and, unlike what has been wrongly interpreted in recent months, it also protects them. How?
Contenido fair use
As well. The new regulations come to recognize the use of new formats on the internet that use third-party content, but that do so in a way that is considered ‘legitimate’, such as educational or informative purposes. This is what is considered fair use .
Fair use (and no longer the old Permit of use) is in force in the United States and is covered and protected by the new regulations.
Recital 21 of Amendment 19 of the Directive of the European Parliament and of the Council on copyright in the digital single market (that is, what the European Parliament has approved) cites the following:
«As a consequence of technological evolution, information society services have emerged that allow users to upload or make available content in different ways and for different purposes, including for the illustration of an idea, a criticism, a parody or a pastiche. This content may include short excerpts of pre-existing works or other protected property that users may have modified, combined or transformed. “
This would also include memes and all kinds of content fragments inserted for an informative or entertainment purpose (also your favorite film critic or gameplay channel); as long as these are ‘short extracts’ that do not harm the interests of the original author. And the regulation continues in Recital 22 of Amendment 20:
“Despite some overlaps with existing exceptions or limitations, for example those applicable to quotes and parody, not all content uploaded or made available by a user that reasonably includes extracts of works or other protected performance is covered by the Article 5 of Directive 2001/29 / EC. This situation creates legal uncertainty for both users and rights holders. Therefore, a new specific exception should be envisaged to authorize the legitimate uses of extracts of works and other pre-existing protected services in the content uploaded or made available by users. “
That is to say, the previous legislation of 2001 did not cover all the content of third parties used for legitimate purposes that do not harm their rights (such as disclosure, for example), and now, the new regulations want to contemplate it, when a legitimate use is made; that is, it protects what we have previously defined as fair use .
So what is all the fuss about?
The nuance of this entire Directive, and which has alerted platforms and internet users, is that, to ensure that third-party content is used according to this fair use and not with fraudulent use, platforms such as YouTube must make the algorithm that penalizes copyright infringements more sophisticated , and will also penalize the platform, and not whoever uploads the content, when fraudulent use is overlooked.
Youtube currently uses an algorithm called Content ID to accomplish this task; an AI that doesn’t seem to give the best results. In order not to ‘get your fingers caught’, YouTube will have to make this system much more sophisticated (which means a significant investment of money); Or, it will resort to the easiest and cheapest solution: it will make the copyright filter much more restrictive, making any content that appears to be minimally violating copyright is penalized.
Platforms like YouTube will have to ‘put the batteries’
Hence the alarm. For this reason, content creators fear that most of their videos will be eliminated with the implementation of this regulation. But if we analyze it well, its enemy is not the law, but platforms such as YouTube are not responsible for monitoring the content (to correctly detect what is fraudulent use and what is not); Instead, turn to the simplest and cheapest solution: cut your losses.
Correctly evaluating whether a content makes fraudulent use of a film (because it is broadcasting it completely without rights) or that it only uses fragments for informative or entertainment purposes (for a critic, parody or informative video) is difficult for an algorithm ( despite the incredible expansion of AI). Which means that YouTube would have to invest a lot in a human team to carry out this task.
However, other platforms have already done their homework: recently, Facebook has included several staff departments dedicated to the detection and reporting of fake news.
In conclusion: the problem is not article 13, but that the content platforms do not do their job of regulation well, and opt for censorship to avoid problems.
Finally, let’s address a couple of frequently asked questions about other postulates that also concern content creators and users:
Frequent questions
Does something happen if I upload a parody / review / etc. to Youtube and the like?
Everything will depend on the platforms in question performing proper content upload surveillance to ensure compliance with the law. Most likely, platforms will toughen up this system, which will obviously impact the content creator.
That is, if you have a problem, it will be due to the restrictive tool of the platform, but not due to the European Directive (as long as you have not engaged in fraudulent use). In any case, the more modified and different (with its own elements) your content is, the better.
Can I keep uploading memes to Twitter?
Yes. In fact, Article 13 recognizes this new use of third-party content as a necessity of the information society, and its intention is to protect such use.
Will there be fees to pay to digital media and news agencies?
No. Article 13 refers to the fact that the media original authors of information have the right to receive an economic contribution in exchange for its use by other means that will profit directly from it.
But the Directive also specifically details that this will not affect private use , nor will it affect media that collect part of the information as an informative or complementary use. This specification is included in Recital 24 of Amendments 34 and 138:
‘[…] Member States need to provide Union-wide legal protection for press publications within the Union for digital uses. Such protection must be effectively guaranteed by the introduction, in Union law, of rights related to copyright for the reproduction and making available to the public of press publications in relation to digital uses, in order to obtain remuneration fair and proportionate for such uses. Private uses should be excluded from that reference. Also, listing on a search engine should not be viewed as fair and proportionate compensation. “
How do I make sure my content is fair use?
It refers to the ‘fair use’ or ‘reasonable use’ of third-party content on the internet. In other words, the law protects users who upload content that contains copyrighted fragments to the network as long as its purpose is for informative, informative or recreational use or as a complement to information, a parody or a pastiche.
Fair use takes into account the length of the fragment used (or the importance of the fragment in relation to total use); the purpose of its use; and the effect of this use on the market value of the original work.
What about digital content in teaching?
Amendments 15, 16 and 17 put the digital uses of works at the service of schools to enrich or complement teaching (both in physical and virtual classrooms) , as long as the works used include the source and the name of the author. Until now, this right was not recognized.
Original source: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2018-0337+0+DOC+XML+V0// ES & language = ES
