Online petitioners clamored in record numbers for the European Union to abandon the controversial Article 17, formerly Article 13, of its new directive on Copyright in the Digital Single Market, which the EU’s Parliament voted to adopt Tuesday.
Over 5.2 million users on petition website Change.org signed a petition titled “Stop the censorship-machinery! Save the Internet!” That is the most signatures on any single petition in the history of the site, exceeding the 4.9 million signatures on a petition in 2016 begging electoral college voters in states won by President Trump to go rogue and cast their votes for former Secretary of State Hillary Clinton.
Article 17 would require websites that host user-created content, such as YouTube or Facebook, to adopt filters that would preemptively scan content for potential copyright violations and prevent suspect content from being published. The companies would be made liable for copyright violations and owe monetary reparations to copyright holders.
Content creators are concerned that widely recognized “fair use” expectations could be overturned by the article, allowing content that would be permitted under U.S. copyright law to be blocked on hosting sites by copyright holders. Dutch law professor Dirk Visser, author of a research paper on the potential impact of Article 17, admitted the possibility for abuse.
“In the end the courts will have to decide what the [sites] can reasonably be expected to do,” Visser wrote. “Unfortunately, article 17 gives very little guidance for this. … Things will get blocked which should not be blocked, either because the material is not protected or because there is no infringement, for instance because a limitation to copyright applies.”
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Visser notes that websites have some wiggle room to avoid liability, but the wording is sloppy and confusing, making it unclear if websites will be able to protect themselves and incentivizing them to be hyperaggressive in policing content.
A late revision to Article 17 was the addition of language designed to protect “memes.” Like the U.S. exemption for “fair use,” the EU article states that content specifically designed for “criticism, review, caricature, parody, and pastiche” is protected from being blocked or struck down by copyright claims. However, this exemption may prove slippery in practice.
“These limitations are so important, that member states shall ensure that users can rely on them,” Visser wrote, emphasizing the legislative language guaranteeing protections for users. “But again, the article does not make clear how the member states shall ensure this.”
It is unknown how the new rule will affect the behavior of companies based outside the EU. Twitter, among other companies, has opposed Article 17 and considers its wording to be fundamentally flawed, despite the meme-protecting revisions.
“Twitter has been engaged in the debate on the #EUCopyrightDirective from the beginning,” according to a Twitter spokesman. “We retain our concerns about the implications of the recent vote for the open, creative, and conversational nature of the Internet. We will continue to engage with EU member states and civil society as the implementation process evolves.”
EDiMA, a trade association that represents tech companies and online platforms, has also been vocally opposed to the copyright directive.
“Although we acknowledge the final text has improved significantly from earlier drafts, we still fundamentally disagree with it, as it undermines other EU law, tries to force a licensing business model on open platforms, and weakens the fundamental privacy and freedom of speech rights of EU citizens,” EDiMa said in a statement.
Despite the record-breaking protest, the copyright directive has been passed by the European Parliament in its current form and will become law after it proceeds to the European Council, which has stated that it plans to approve the final text.
