There’s been no more fiery a topic in the global music business this month than Article 13.
This is the provision within the new European Copyright Directive which seeks to make user-upload services like YouTube legally liable for all copyright-infringing content on their platforms.
YouTube is claiming that Article 13 will essentially break its service. It says that, due to the liability caused by Article 13’s wording, it may have to blacklist videos like Latin smash hit Despacito in the future.
Music business lobbyists strongly disagree, suggesting that such cautions by YouTube are nothing more than additions to a “carpet-bombing propaganda” campaign designed to whip up unfounded worry about the legislation.
Who to believe? One simple way of deciding is to actually read Article 13. It runs to just 240 words in length and it’s not weighed down by particularly dense legalise. It will take you about 30 seconds to read it in full – and you can do so below.
[UPDATE: The 240 word version of Article 13, it transpires, is the original text of the legislation. In fact, due to amendments made ahead of the vote in September, the version of Article 13 now set to be passed at European law runs to more than 450 words – not including additional proposed amendments. You can compare both versions below, and read the full latest edition of the Copyright Directive through here.]
Article 13: Original Version
Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users:
- Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
- Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1.
- Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.
Article 13: 2018 amendment
Use of protected content by online content sharing service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users
- Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing service providers perform
an act of communication to the public. They shall therefore conclude fair and appropriate licensing agreements with
- Licensing agreements which are concluded by online content sharing service providers with right holders for the acts of communication referred to in paragraph 1, shall cover the liability for works uploaded by the users of such online content sharing services in line with the terms and conditions set out in the licensing agreement, provided that such users do not act for commercial purposes.
2a) Member States shall provide that where right holders do not wish to conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright.
2b. Members States shall ensure that online content sharing service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case the cooperation referred to in paragraph 2a leads to unjustified removals of their content. Any complaint filed under such mechanisms shall be processed without undue delay and be subject to human review. Right holders shall reasonably justify their decisions to avoid arbitrary dismissal of complaints. Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation [GDPR], the cooperation shall not lead to any identification of individual users nor the processing of their personal data. Member States shall also ensure that users have access to an independent body for the resolution of disputes as well as to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright rules.
- As of [date of entry into force of this directive], the Commission and the Member States shall organise dialogues between stakeholders to harmonise and to define best practices and issue guidance to ensure the functioning of licensing agreements and on cooperation between online content sharing service providers and right holders for the use of their works or other subject matter within the meaning of this Directive. When defining best practices, special account shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on SMEs remains appropriate and that automated blocking of content is avoided.
Music Business Worldwide