On March 26, by a pretty slim margin, the European Parliament passed the un-amended Digital Single Market Directive. This directive includes the fan-unfriendly provisions known as Articles 11 and 13 (now re-numbered to 15 and 17, but otherwise unchanged), which we have written about before in this space. We won’t sugarcoat it—it’s bad news—but it isn’t the end of the world. Nonprofit platforms like the AO3 will not be affected, and there are provisions designed to protect some of the sites and fan activities you (and we!) love. A lot remains to be seen. Here’s a close look at what the law means and what we can expect.
The European ministers still have to vote on the directive before it becomes final, but it is widely presumed that they will approve it. Assuming the European ministers approve it, the directive will then be transposed into national legislation by EU countries, at which point it will become law. Each country’s implementation may be slightly different, but will conform to the directive’s principles. Here are some of the key takeaways from the directive as it passed:
- The definition of "online content-sharing service providers" is limited to platforms whose main purpose is to “store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organizes and promotes for profit-making purposes.” The directive therefore excludes non-profit platforms like the AO3.
- The definition also explicitly excludes "not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open source software-developing and-sharing platforms, [Internet service providers], online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use." That means that platforms like Wikipedia, Open Science Framework, GitHub, telecom companies, eBay, Etsy, Amazon Web Services, and Dropbox should also be safe from these provisions.
- For-profit "online content-sharing service providers" will be liable for copyright infringement by their users, and will have an obligation to obtain permission from copyright holders for providing user-uploaded copyrighted works. This means that some big sites will negotiate license agreements with major copyright holders to implement systems (like YouTube’s ContentID) that allow those copyright holders to block or monetize instances when users upload their copyrighted material.
- However, platforms will not be liable for infringing content if they implement notice-and-takedown and filtering systems to prevent uploading and re-uploading of material claimed by copyright owners. Although this has some things in common with the notice-and-takedown safe harbors in the U.S. Digital Millennium Copyright Act, it places more intensive obligations on platforms. Industry standards will vary, but some sites will almost certainly install "filters" that try to prevent the upload of unauthorized material.
- The directive states that it "shall not lead to any general monitoring obligation" (although the consensus is that filters will be required) and that platforms must have an "effective and expeditious" way for users to dispute a block or takedown. Therefore, the directive requires that fans be provided with mechanisms to combat abusive takedowns, including the ability to dispute takedowns of non-infringing transformative works, although we don't know what those mechanisms will look like or how well they may work.
- The directive states that its implementation should "in no way affect legitimate uses, such as uses under exceptions or limitations" to copyright, and should "not result in the prevention of the availability of works ... which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation. Member States shall ensure that users in each Member State are able to rely on [exceptions for] quotation, criticism, review; use for the purpose of caricature, parody or pastiche." We don’t know how this will be implemented or how it can work with filters that can't tell whether these exceptions apply, but it provides countries with the opportunity to include significant exceptions in their laws implementing the directive. Fans may wish to contact their national legislators to emphasize the importance of protecting users' rights.
- The directive says that the standard should take into account "(a) the type, the audience, and the size of the service and the type of works or other subject matter uploaded by the users of the service; and (b) the availability of suitable and effective means and their cost for service providers." This means that in theory, smaller or less-resourced sites, sites whose main purpose is hosting non-infringing transformative works (like fanworks), and sites that focus on criticism and commentary can argue that they should not have to engage in filtering because filters are too expensive or are simply not suitable for dealing with the non-infringing transformative works they host. Although we cannot predict what they will do, fansites and popular for-profit fanwork platforms like Fanfiction.net, tumblr, Wattpad, and DeviantArt may be able to argue that they should not have to install upload filters. However, we can also predict that for-profit filtering providers will argue that their products are priced appropriately and that large copyright owners will argue that any sites that host video, audio, or images for profit should be required to filter.
- There is also an exemption for very small and very new platforms (less than 3 years old, average monthly unique visitors under 5 million, and annual turnover below EUR 10 million). This is a minimal exception, but it may allow new fansites and platforms a small opportunity to get on their feet before having to comply, if they can figure out a way to do so.
- Finally, the directive provides for research and stakeholder dialog on implementation. The OTW has joined a coalition that will be conducting such research and dialog, and will continue to fight for fans’ rights on the Internet!
If you don't live in the EU: Big copyright owners are seeking the same changes around the world, and will be asking the U.S. Copyright Office to support similar changes in April. Keep an eye out for a chance to let your legislators know that filters are a bad idea.
Have questions about the directive? OTW Legal is here to answer them.