As Recording Industry Announces Massive Growth, Why Do We Need Article 13 Again?

from the questions-to-ponder dept

A key claim by those who support Article 13 is that it's necessary to get "fair compensation" for artists on the internet. Whenever more specifics are needed, supporters almost always point to musicians, and talk about "the value gap" and how internet companies are taking all the money and recorded music has been destroyed by the internet and all of that. And, of course, if you've followed the rhetoric in the last 20 years since the introduction of Napster, you'd believe that the recorded music business is in a never-ending death spiral. Of course, as we've pointed out, the "recorded music business" is just one segment of the larger music business, and nearly all other aspects of it (especially live music) have continued to grow pretty consistently each year.

But, a funny thing has happened in the past few years that undermines the doom and gloom message: the recorded music business has been growing. Rapidly. And it's entirely due to the internet and all of the various services that the RIAA had been slamming for years. Indeed, it did seem notable when the RIAA put out its latest revenue numbers for 2018, showing the incredibly rabid growth over the past four years of the recorded music business. So I started taking an even closer look at what's happened over the past decade. Thankfully, the RIAA actually makes all of the data available, and so I put together this handy chart:

So, yes, things sort of bumbled along for the first few years of the past decade, but the last few years are ones of massive and incredibly rapid growth due to online streaming. The US recorded music business is right at about $10 billion (if you're interested, the live music business in the US is about the same, counting both ticket sales and sponsorship).

Now, you might say, well that's just the US, and Article 13 is about Europe. Thankfully, IFPI puts out similar numbers (counted slightly differently, unfortunately, so it's not an exact comparison). IFPI has not yet released its 2018 numbers, but looking at the report from last year you see that the global numbers show a pretty similar change, again, with things bottoming out a few years back, and then showing new growth, almost entirely from the rapid increase in streaming services. I expect when IFPI releases its 2018 numbers, we'll see just as dramatic a bump up as we see with the RIAA's US numbers:

So, it certainly looks like the internet (as some of us predicted...) has absolutely been the savior to the music business -- it just took the legacy companies hellishly long to embrace it.

But, again, I'm left wondering why is it that we need Article 13 again? To hear Axel Voss and other supporters talk about it, the recording industry is in a death spiral without it. Yet, the actual stats show things are going quite well and growing like gangbusters.

Filed Under: article 13, copyright, culture, eu, eu copyright directive, growth, recording industry, streaming
Companies: ifpi, riaa

The 2012 Web Blackout Helped Stop SOPA/PIPA And Then ACTA; Here Comes The 2019 Version To Stop Article 13

from the how-to-make-bad-ideas-politically-toxic dept

Remember SOPA (Stop Online Piracy Act) and PIPA (Protect IP Act)? Back in 2012, they threatened to cause widespread damage to the online world by bringing in yet more extreme and unbalanced measures against alleged copyright infringement. Things looked pretty bad until a day of massive online protest was organized on January 18, 2012, with thousands of sites partially or totally blacked out. Politicians were taken aback by the unexpected scale of the anger, and their support for SOPA and PIPA crumbled quickly. That success fuelled protests in Europe against ACTA (Anti-Counterfeiting Trade Agreement), which also sought to bring in harsh measures against online infringement. After tens of thousands of people took part in street demonstrations across Europe, many politicians wanted nothing to do with the by-now toxic proposal, and it was voted down in the European Parliament in July 2012.

As Techdirt pointed out last year, the proposed EU Copyright Directive is even worse than ACTA. As such it clearly merits serious, large-scale action of the kind that stopped SOPA/PIPA and ACTA. And it's happening. The German-language version of Wikipedia, the second-largest by number of articles, has announced the following (original in German):

On Thursday, March 21, the German-language edition of the online encyclopedia will be shut down completely for 24 hours. In this way, Wikipedia activists want to send a signal, in particular against the introduction of the controversial Articles 11 and 13 in the [EU's] copyright reform.

It is expected that a number of other major sites will be joining in the protest. Meanwhile, another German organization is campaigning against Article 13. In an open letter to MEPs, its supporters write:

We are the operators and administrators of more than 400 German-language discussion forums with more than 18 million members. We are united by the great concern that the EU Copyright Directive will endanger the existence of our forums and thus the discussion culture on the Internet.

The public discussion on the EU Copyright Directive revolves almost exclusively around YouTube and other large US platforms. In doing so, we lose sight of the fact that discussion forums of all sizes will also be affected by the new directive.

That's an important point. Supporters of Article 13 try to give the impression that only deep-pocketed companies like Google will be hit by the new law. As the discussion forum operators point out, their organizations will not be exempt from the requirements of the EU Copyright Directive. Its effects will be devastating:

Because of these uncertainties and the legal and financial liability risk, many discussion forums will close, as small associations or voluntary operators cannot bear this situation. Commercial operators are also endangered in their existence if they have to conclude fee-based licenses and are obliged to install expensive upload filters.

Uncertain regulations for us means years of legal uncertainty, legal risk and potential legal costs, which no operator can afford in the long run as forums usually do not generate a large amount of revenue.

As a result, the discussion culture on the European Internet will be severely impaired, and many citizens will lose their digital home in discussion forums.

Internet startups in the EU will face the same insurmountable problems thanks to Article 13's impossible demands. Many will be forced to shut down. It's an irony that many have already pointed out. A law that supporters claim is designed to tackle the disproportionate power of companies like Google and Facebook will end up entrenching them more deeply, and wiping out much of the EU's own digital ecosystem. Let's hope 2019's big blackout grabs people's attention as the one in 2012 did, and that MEPs drop Article 13 just as they dropped ACTA.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu parliament, europe, germany, march 21, protests
Companies: wikimedia, wikipedia

News Organization Like Reuters Supporting The EU Copyright Directive Is A Shameful Support For Censorship

from the sad-times dept

A bunch of sites have been reporting on the news that over 200 organizations have signed a letter in support of the EU Copyright Directive, with most of the news reports focusing on the fact that a ton of music collection societies and music industry trade groups are on the letter. The letter itself makes no real argument, it just says "pass this damn thing." Well, since the law hasn't yet passed, I think I can quote the whole thing without getting fined, so here it is:

We, the undersigned organisations, representing authors, composers, writers, journalists, performers and others working in all artistic fields, news agencies, book, press, scientific and music publishers, audiovisual and independent music producers call on the European Parliament to adopt the Directive on Copyright in the Digital Single Market.

This Directive has been long sought to create a much-needed level playing field for all actors of the creative sector in the European Digital Single Market, whilst giving citizens better access to a wider array of content.

This is an historic opportunity. We need an internet that is fair and sustainable for all. This is why we urge policymakers to adopt the Directive quickly, as agreed in trilogue negotiations.

Of course, we've explained multiple times why none of this makes much sense. Nothing in the EU Copyright Directive is about creating a "level playing field" or "giving citizens better access to a wider array of content." Indeed, as written, it will do the exact opposite. It will heavily weight the playing field towards large organizations (both tech and copyright) and massively limit availability to content through mass mandatory filtering.

Anyway, I'm not surprised at all the collection societies signing on to this -- as they know that they'll be in the best position to demand more money from platforms should this become law. What I find most troubling, however, is to see a bunch of news organizations -- including behemoths like Reuters -- signed on. I know that many large news publishers (stupidly) support Article 11, in the false belief that it will magically create a new stream of revenue for them from Google News having to pay to link to them (even though that hasn't worked in Germany or Spain when similar laws passed in both places).

But it's simply stunning that these news publishers -- who often hold themselves up as the supporters of free expression -- are now seen to be supporting the censorship powers of Article 13 as well. This is an incredibly short-sighted position for these news orgs to take. News reporting quite frequently depends on things like fair use and fair dealing -- and the current version of the EU Copyright Directive will make that nearly impossible.

It is disappointing in the extreme to see organizations like Reuters completely toss their principles out the window in hopes of taxing Google.

Filed Under: article 11, article 13, copyright, eu, eu copyright directive, eu parliament, music, news

Axel Voss Says Maybe YouTube Shouldn't Exist

from the say-what-now? dept

I'm beginning to think that Axel Voss, the Member of the European Parliament in charge of ramming through the EU Copyright Directive, doesn't have much of a clue about how either copyright or the internet works. Last week, we pointed out that he was making provably false statements about Article 13, and wondered why he'd be doing that. But the more he talks, the more I'm wondering if he simply doesn't understand the basics of either copyright law or the internet. The latest comes in some quotes he gave in a great article by DW.com, which correctly highlights how Article 13 is going to lead to widespread censorship. Voss tries to defend it with some truly bizarre claims:

“We are just concentrating on platforms that are infringing on copyrighted works like YouTube. Not for dating platforms or merchandising or local social platforms. Only 1.5% of internet platforms will be affected.”

Only 1.5% of platforms will be affected? I think we're going to need to slap a giant "citation needed" on that one. According to the released text, the law will apply to the following:

‘online content sharing service provider’ means a provider of an information society service whose main or one of the main purposes 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 organises and promotes for profit-making purposes. Providers of services such as not-for profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms, electronic communication service providers as defined in Directive 2018/1972 establishing the European Communications Code, online marketplaces and business-to business cloud services and cloud services which allow users to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive.

The special carve-outs for "non-profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms" came after Wikipedia and Github pointed out how impossible Article 13 would make their future existence. Either way, the giant misunderstanding here, is that basically everything is covered by copyright. So, any site that enables user-generated content, and is a for profit entity, will "store and give 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." That's called the internet. The law clearly impacts way more than 1.5% of internet platforms.

Even more to the point: even if Voss and his allies can scrape together some nonsense by listing out all sorts of other websites that wouldn't be impacted by this, the number of websites is the wrong metric. The real question is about how much of the internet that people interact with on a daily basis would be impacted: and there the answer is a ton of it. There are a whole bunch of rankings of the "top websites" out there, but skimming through a bunch of them you see that a huge number of the most popular websites would be impacted by this: Facebook, Google, Twitter, Instagram, Reddit, YouTube, Pinterest, Linkedin, Twitch, Imgur, Pornhub, Wordpress and more. If you add in some of the top Chinese sites, it gets even bigger.

But here's the bigger issue: Voss then seems to suggest none of these sites should even exist. No, really:

“We all have legal obligations to fulfill. If you have a massive platform like YouTube you will have to use a technological solution. Everyone has these obligations. They have created a business model with the property of other people – on copyright protected works. If the intention of the platform is to give people access to copyright protected works then we have to think about whether this kind of business should exist. The new legislation is improving the situation for the European creators industry.”

Say what now? Not exist at all? This whole thing seems to be based on the false premise -- often pushed by the RIAA and MPAA -- that YouTube was solely created to allow users to upload others' professional content. That's not accurate at all. The entire basis for YouTube was to allow people to express themselves. And they do. The top channels on YouTube are not people uploading other people's infringing content, but independent creators creating their own amazing new content that wouldn't have been possible in an age before YouTube.

So how is it that Axel Voss is considered an authority on this? He doesn't seem to understand that every new work is covered by copyright, so any website that hosts user-uploaded content -- audio, video, text, images, etc. -- is subject to this law. He also doesn't seem to understand that none of these sites are built with the intent of having people upload infringing material, it's just that some segment of the population will do that. Because that's part of how the internet works. But the good from all this -- the ability for anyone to create and share their content, as well as the vast ability of people to find and discover new and amazing content -- greatly outweighs the fact that it might change the business model for a few legacy companies.

Voss' final line is a real kicker. "Improving the situation for the European creators industry." Uh, no it's not. More people are creating than ever before, and they're using the tools that Article 13 will punish to do so. When people have fewer places to share their content or to make money from their content, that's not helping creators or the "creators industry." Sure, it might help a very small number of old gatekeeper companies -- record labels, book publishers, movie studios -- be in a position to demand more money from internet companies, but thinking that those old gatekeepers represent the "creators industry" is ludicrously out of touch.

Still the fact that Voss is now admitting that the real goal behind Article 13 is to move us to a world where "maybe" YouTube "shouldn't exist," perhaps he can apologize for his comments last week in which he insisted that all he really wanted "is what already exists" and which "online platforms have already put into practice." Yes, just last week, he was saying that the rules "will not go beyond what is currently in place and things will largely remain as they are now." And this week he's saying, well, actually maybe "this kind of company should not exist."

Axel Voss seems willing to say anything, no matter how contradictory, how obviously incorrect, to push through Article 13.

Filed Under: article 13, axel voss, copyright, eu, eu copyright directive, internet platforms, user generated content
Companies: youtube

German Government Confirms That Article 13 Does Mean Upload Filters, Destroying Claims To The Contrary Once And For All

from the now-delete-it-from-the-text dept

Techdirt has just written about an important intervention by the UN Special Rapporteur on freedom of expression in the debate about Article 13 of the proposed EU Copyright Directive. David Kaye said that most Internet sites "would face legal pressure to install and maintain expensive content filtering infrastructure to comply with the proposed Directive." Despite the evident expertise of Kaye in this area, some may try to dismiss this clear condemnation of Article 13 as the UN interfering in a legislative process that really only concerns the Member States of the EU, and no one else. That makes the following official reply by Christian Lange, Parliamentary State Secretary to the German Federal Minister of Justice and Consumer Protection, to a question submitted by a member of Germany's national parliament, rather significant:

In the [German] federal government's view it appears likely that algorithmic measures will have to be taken in connection with large volumes of data for practical reasons alone.

That translation of the original German comes from Florian Mueller, who has written a blog post (in English) about the political background and significance of this statement. He notes that it appears in the well-respected German newspaper Frankfurter Allgemeine Zeitung, "that used to spread the no-upload-filter propaganda [but] now considers it ridiculous to deny that Article 13 involves upload filters." So the appearance of this confirmation that Article 13 will indeed require "algorithmic measures" -- AKA upload filters -- in a serious German newspaper represents an important moment in the continuing battle to get MEPs to understand the damage this measure will cause, and to prevent it.

It is now inarguable that Article 13 will require the deployment of upload filters across many sites in the EU. The UN Special Rapporteur David Kaye has warned that upload filters put freedom of expression under threat, and harm creators and artists the most. Putting those two together means that any European politician supporting Article 13 is inevitably attacking a fundamental human right in the EU, and making life worse for artists. With just two weeks before the final vote in the European Parliament, now would be a really good time for EU citizens to ask their MEPs whether they are happy to be remembered for that, or would rather help to remove Article 13 completely.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: article 13, censorship, christian lange, copyright, eu, eu copyright directive, filters, germany, upload filters

It Sure Sounds Like Elizabeth Warren Wants To Bring The EU Copyright Directive Stateside

from the maybe-think-on-that-a-bit-more dept

Last week we wrote a critical analysis of Elizabeth Warren's big plan to break up "big tech." As we noted, there was a lot in the plan that was nonsensical, unsupported by the facts or just plain confused. We'll be talking more about some of these ideas a lot over the next few years I imagine (stay tuned), but there was one line in Warren's plan that deserved a separate post: it appears that a part of Warren's big attack on big tech... is to give a massive handout to Hollywood. Here's the line:

We must help America’s content creators — from local newspapers and national magazines to comedians and musicians — keep more of the value their content generates, rather than seeing it scooped up by companies like Google and Facebook.

That may sound rather basic and lacking any details, but what's notable about it is that the language reflects -- almost exactly -- the language used in the EU in support of the absolute worst parts of the EU Copyright Directive (specifically, Article 11 and Article 13). For example, this Q & A page by the Legislative Affairs Committee of the EU Parliament uses quite similar language:

The draft directive intends to oblige giant internet platforms and news aggregators (like YouTube or GoogleNews) to pay content creators (artists/musicians/actors and news houses and their journalists) what they truly owe them;

Why, that sounds quite familiar. Indeed, Warren's announcement even uses "keep more of the value their content generates," which appears to be a reference to the completely made up notion of a "value gap" between what internet platforms make and what they should be paying artists.

It's no secret, of course, that those pushing strongest for Articles 11 and 13 plan to bring them to the US as soon as possible. Indeed, that's why we pointed out that it is quite important for Americans to pay attention to what's happening there -- as it's likely to follow across the Atlantic before too long. The fact that a leading Presidential candidate is already mimicking the language of such controversial European legislation is quite amazing, and suggests a Warren campaign that is very out of touch with what people actually want from their internet.

It's also kind of odd for someone who paints themselves as a "progressive politician" who will stand up "against big business" to be hinting at policies that are obviously designed solely as a wealth transfer mechanism to the giant Hollywood studios, major record labels, and large newspaper publishers. It's difficult to square that position with helping the little guy.

Similarly, one of our big concerns with Articles 11 and 13 is that, by their very nature, they will increase the monopoly issue. They are rules that only make sense if you have a few giant companies on each side negotiating with one another -- rather than a large number of competitors, and a wide variety of independent creators. So, it's doubly bizarre that Warren would include this suggestion in her big post about how terrible monopolies are and how she needs to break up big tech. Copyright-directive style proposals won't do that. They'll simply reinforce the dominant position of the big companies by making it nearly impossible for startups to even enter the market.

Filed Under: antitrust, article 11, article 13, artists, break up big tech, content creators, copyright, elizabeth warren, journalists, value gap
Companies: facebook, google

Disaster In The Making: Article 13 Puts User Rights At A Disadvantage To Corporate Greed

from the don't-let-it-happen dept

Supporters of Article 13 in the EU Copyright Directive love to insist that all of the harms and concerns that many of us raise about how it will impact user rights are wrong, because the text of Article 13 says that user rights won't be harmed. This is only sort of true. It does say that... but gives no instructions on how to make it a reality. Indeed, abiding by the rest of the law makes it impossible. In other words, it's the equivalent of a law mandating everyone flies into the Sun, and when some of us point out that we'll all burn up and die, the legislators tack onto the end of the bill "... and don't let anyone burn up and die" without any further instruction.

Specifically, in the text, it says things like the following:

The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation.

Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services:

a) quotation, criticism, review,
b) use for the purpose of caricature, parody or pastiche.

And also they insist that this shouldn't require mandatory filters, while providing no explanation for how to abide by the law otherwise:

The application of the provisions in this article shall not lead to any general monitoring obligation as defined in Article 15 of Directive 2000/31/EC.

And, perhaps my favorite, the "and don't let this impact anything it shouldn't" clause:

This Directive shall in no way affect legitimate uses, such as uses under exceptions and limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of their personal data, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation.

Of course, all of that is nonsense, because before you get to that part in the Directive, you have everything else that clearly requires automated filters. Section 4 of the text says that if you haven't paid off EVERY SINGLE COPYRIGHT HOLDER, then you're liable for any infringement "unless" you make:

"best efforts to ensure the unavailability of specific works"

And, if told about certain works:

"made best efforts to prevent their future uploads"

How the hell do you "prevent their future uploads" if you're not filtering everything uploaded? And, how does an automated system determine if those future uploads are actually parody, or fair dealing, or some other exception. The general response from supporters of Article 13 is a giant shrug. As Communia notes, there is literally no way to abide by the law without filters, and it is literally impossible to comply with the section about protecting user rights:

If you can't see that full chart, it's reproduced here as well:

If you look at that full chart, you see something pretty important. The ordering of the obligations here is key, as pointed out by Kristofer Erickson. First up, you need to try to license all works. Second, if you fail to license all works in existence, you need to employ expensive and faulty filters to keep down anything that you've received a notice over. Only after all of that are you able to consider user rights.

To be more explicit about this, Article 13 puts user rights at the very end of the line, way past the massive corporate handout the law gives to record labels, movie studios and book publishers. Then, at the very, very end, where it doesn't even matter, it says "don't let all the bad stuff that everyone knows will happen actually happen." But it does not explain how that's possible, because it's not. The law has all sorts of problems, but trying to shove in "user rights" as subordinate to the special privileges of a few giant industries is especially disgusting and corrupt.

Filed Under: article 13, corporations, filters, user rights

EU Parliament Paid News Publisher AFP To Create Bogus Propaganda Video In Favor Of EU Copyright Directive

from the that-doesn't-seem-right dept

So we recently wrote about the bizarre situation in the EU whereby the EU Parliament's official Twitter feed had tweeted a pure propaganda video in support of the EU Copyright Directive. This was weird on many levels. First of all, the Copyright Directive has not yet been voted upon, and you would think that the EU Parliament itself should be neutral on the question of whether or not a law should be passed -- especially one with as much controversy as the Copyright Directive. Second, the video was filled with a bunch of blatantly false information (mostly from MEP Axel Voss). It's one thing for the EU Parliament to be promoting a specific outcome on a legislative vote, and it's another altogether to support that with false information delivered by just one MEP. Does the EU Parliament do this on other issues as well? The third oddity, is that the video certainly looked very professionally produced, raising questions of just who put it together.

MEP Julia Reda used her position as an MEP to ask those questions of the Parliament and now has the answer. The EU Parliament -- for reasons that are still unclear -- paid Agence France Press (AFP) to produce the video:

AFP, of course, is a giant publisher that stands to potentially benefit from Article 11 in particular. And, apparently, AFP has been one of the more aggressive lobbying organizations in Brussels pushing for Article 11. Hell, all the way back in 2005, AFP actually sued Google for linking to its stories (spoiler alert: it did not win). So for the EU Parliament to then use public funds to ask a clearly interested party to produce a propaganda video seems highly questionable. This is the akin to say, the US Congress asking Pfizer to produce a video that will go out under "Congress" official imprimatur, about prescription drug pricing. That would be a scandal. Yet, in the EU, not too many officials seem particularly bothered by this.

Of course, it should be noted that AFP does not exactly have the greatest track record on copyright itself. In 2010, the company was caught having used someone's photo of the earthquake aftermath in Haiti without licensing, and when called on it, AFP sued the photographer with a bizarre argument that anything that was posted to Twitter was free for anyone to use (no, really). Eventually, AFP was forced to pay out $1.2 million for that debacle. You'd think that experience might make the company a little more careful about supporting extremist copyright positions, but for some reason in the copyright debates, the maximalists never think the law will seriously apply back to them.

Meanwhile, instead, AFP is publishing hysterically misleading articles (that feed out to various licensees of AFP content) all about how evil Google is actively lobbying over Article 11. No, really. While (at least) the AFP article notes that AFP supports Article 11, it leaves out its active participation in the lobbying effort -- including the creation of the aforementioned video, framing the entire story about how big bad Google is doing all the lobbying over the law.

Filed Under: article 11, article 13, axel voss, bias, corruption, eu copyright directive, eu parliament, julia reda, propaganda
Companies: afp

Major Labels Split On Support For Article 13; As Music Publishers Whine That They Can't Make Money From Parodies

from the say-that-again dept

Billboard Magazine reliably publishes the views of folks inside the music industry, so a recent column exploring various views regarding Article 13 in the EU Copyright Directive is enlightening. As we've discussed, the record labels released a letter saying that they no longer supported Article 13 because it "no longer meets the objectives" they originally wanted -- which was basically "Google cough up all the money."

However, Billboard notes that there's significant disagreement among the three major labels concerning their views on Article 13:

Of the three major labels, industry sources say Universal is the most opposed to the final version; Warner largely favors it, though executives think the text contains flaws; and Sony Music is between the two.

It still feels like the "opposition" from legacy copyright companies is mostly for show. When discussing Article 13, they all seems to freak out any time anyone points out reasons to drop it -- so it feels like the "oh, we oppose it" has mostly been an attempt to see if they can go for broke and make the law even worse. However, if Universal Music really opposes Article 13, it should speak up.

The even odder bit in the Billboard piece is watching some execs whine that in trying to respond to (accurate) claims about how Article 13 will stifle memes, it will mean they might not be able to get money from people making parodies of their works:

At present, in markets where parody exceptions do not exist, rights holders are able to monetize music parody videos. If passed, Article 13 potentially shuts down that source of revenue.

"I don’t think you’ll find many rights holders who will come out and say they like [Article] 13.5. In territories where they don’t currently have these exceptions, you are potentially reducing revenues for a particular use of content," says one exec.

Cry me a river. Oh, you can't make money if someone parodies your song. What a shame.

Of course, what's odd, is that later in the same damn article, they quote someone saying that Article 13.5 doesn't actually let this happen, even though that's the claim earlier in the article:

"Is what we’re giving away something we can live with? The general reaction among rights holders, labels and publishers is yes," agrees John Phelan, director general of international music publishing trade association ICMP, which had previously joined IFPI and IMPALA in opposing an earlier, weaker version of the directive. He says the final text fixed many of those issues. A key revision was the removal of language that suggested platforms would not require licences or be liable for user-generated content that fell under the categories of caricature, parody or pastiche.

"It was critical that was changed," says Phelan. "If that provision was included, we couldn’t have supported Article 13, nor the directive."

So, uh, wait. Under Article 13.5, are memes and parodies allowed for free... or not? If you look at the actual text, it shows how this game is being played:

The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation.

Member States shall ensure that users in all Member States are able to rely on the following existing exceptions and limitations when uploading and making available content generated by users on online content sharing services:

a) quotation, criticism, review,
b) use for the purpose of caricature, parody or pastiche.

Let's be clear: there are all sorts of problems with this. First off, it only applies in states that already protect parody and such, so parodies and memes and the like will be blocked in countries that don't have those exemptions already under the law. That's a pretty big deal.

Second, this paragraph is nonsense. The law requires that platforms don't allow any copyright-covered material be uploaded (which is why everyone will need to use filters). How the hell does a filter determine if it's for quotation, criticism, or review, or a caricature, parody or pastiche? The draft bill is entirely silent. All it says is "don't let that stuff be blocked." It's the ultimate in "nerd harder." Basically block everything, except the stuff that looks identical to the other stuff, but if you get anything wrong we'll fine you out of business. Anyone who understands the first thing about platform liability recognizes that the only way to stay on the right side of this law is to block things -- even if they fall under these exceptions.

This clause serves literally no purpose other than for those who support the law to point to in an attempt to blunt criticism of the impact of Article 13. Yet none of them can explain how this part of the law would work in practice, beyond some "nerd harder" mumbling about how the tech companies will have to "figure it out."

Filed Under: article 13, copyright, eu, eu copyright directive, labels, parodies, upload filters