The whole truth about Article 13 (17)

If you have heard or read such alarmist statements as that ‘the end of the internet as we know it’ is near with the approval of Article 13 (now renamed Article 17) GDPR (General Data Protection Regulation), don’t get upset before your time.

There is some misinformation circulating about how this Copyright Directive will affect once it is implemented, given that It was approved on March 26, 2019 in the European Parliament with 348 votes in favor and 274 against.

How did they end? memes? Should we fear article 13? Let’s go in parts to break down all this mess.

Until now, digital content is regulated by the European Ecommerce Directive, approved in 2001. From this Directive, each member country draws its own version. In the case of Spain, the Information Society Services Law was formalized.

But, since then, the internet has evolved a lot. The new regulation, recently approved, is the response to a need resulting from technological evolution and the new services of the information society. In other words, until now, publications of the type parodies, reviews, memes, etc. of third-party content that content creators, media or individuals regularly upload to the network.

The already well-known and feared What 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?

Well then. 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 the fair use.

The fair use (and no longer the old Permit of use) is in force in the United States and is contemplated 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 content available in different ways and for different purposes, including for the illustration of an idea, criticism, parody or a pastiche. This content may include brief excerpts from pre-existing works or other protected services that users may have modified, combined or transformed.»

This would also include memes and all kinds of fragments of content inserted for informative or entertainment purposes (also your favorite film review channel or gameplays); as long as these are ‘short excerpts’ that do not prejudice the interests of the original author. And the regulation continues in Recital 22 of Amendment 20:

“Despite some overlaps with existing exceptions or limitations, such as those applicable to quotations and parody, not all content uploaded or made available by a user that reasonably includes excerpts from works or other protected subject matter is covered by the Article 5 of Directive 2001/29/EC. This situation generates legal uncertainty for both users and rights holders. Therefore, it is appropriate to provide for a new specific exception to authorize the legitimate uses of extracts of works and other pre-existing protected benefits in the content uploaded or made available by users.”

That is, the previous legislation from 2001 did not cover all third-party content used for legitimate purposes that do not impair your 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 the fair use.

The nuance of this entire Directive, and which has raised the alarm to internet platforms and users, is that, in order to guarantee that third-party content is used in accordance with this fair use and not with fraudulent use, Platforms like YouTube should make the algorithm that penalizes copyright infringements more sophisticatedand it will also penalize the platform, and not the uploader, when fraudulent use is overlooked.

YouTube currently uses an algorithm called Content ID to perform this task; an AI that seems to not 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); O well, will resort to the easiest and cheapest solution: it will make the copyright filter much more restrictive, making any content that appears to even slightly violate copyright be penalized.
Hence the alarm. For this, content creators fear most of their videos will be removed with the implementation of this regulation. But if we analyze it well, Your enemy is not the law, but platforms like Youtube are not responsible for monitoring the content (to correctly detect what is a fraudulent use and what is not); but that they resort to the simplest and most economical solution: cut their losses.
Correctly evaluating whether a content makes fraudulent use of a film (because it is broadcasting it in its entirety without rights) or that it only uses fragments for informative or entertainment purposes (for a review, parody or informative video) is difficult for an algorithm ( despite the incredible expansion of the 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: Facebook has recently included several staff departments dedicated to detecting and reporting 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 trouble.

In closing, let’s address a couple of frequent questions about other postulates that also concern content creators and users:

Frequent questions

Everything will depend on the platforms in question carrying out a correct content upload surveillance to make sure they comply with the law. Most likely, the platforms will harden this system, which, obviously, will impact the content creator.

That is, if you have a problem, it will be due to the restrictive tool of the platform, but not because of the European Directive (as long as you have not dedicated yourself to making fraudulent use). In any case, the more modified and different (with your own elements) your content, the better.

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.

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 media that will profit directly from it.

But the Directive also specifically details that this will not affect private use, and neither to media that collect part of the information as 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. In addition, listing on a search engine should not be seen as fair and proportionate compensation.”

Refers to ‘fair use’ or ‘reasonable use’ of third party content on the internet. That is The law protects users who upload content containing copyrighted fragments to the network provided that their purpose is for informative, informative or recreational use or as a complement to information, a parody or a pastiche.

The fair use takes into account the extent of the fragment used (or the importance of the fragment in relation to the total use); the purpose of its use; and the effect of this use on the market value of the original work.

Amendments 15, 16 and 17 put at the service of educational centers the digital uses of works 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.

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The whole truth about Article 13 (17)