Negotiations about the EU copyright reform law have resumed: After missing the original Christmas deadline, negotiators for the European Parliament and Council are now aiming to finalise the text on January 21, 2019.

The negotiators have reached agreement on the core of Article 13, which will change the internet as we know it: They want to make internet platforms directly liable for any copyright infringements their users commit.

What remains to be decided: Exactly what lengths will platforms need to go to to avoid or limit their liability? Just how much they will need to restrict our ability to post and share our creations online?

New timeline

January 18 — National governments vote on the Council’s position ahead of the final negotiation. This is the moment of truth for EU member state governments: Will Italy keep its promise to vote against? Will Germany do so as announced, unless small businesses are excluded? Will Poland keep supporting the bill, although every single Polish MEP of the governing party voted against?

January 21 — Trilogue negotiations between Parliament and Council: Attempt to finalise the text

March/April — Final vote in the Council

March 25-28, or possibly March 11-14, April 4 or April 15-18 (tbd) — Final vote in the European Parliament

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Article 13 current status

(Download current negotiation documents: Articles, Recitals)

FINAL Article 13 applies to internet platforms that organise and promote large amounts of copyright-protected works uploaded by their users in order to make a profit.

Note that “copyright-protected” does not mean “copyright-infringing”! All creative texts, photos, videos etc. are automatically copyrighted, so this applies to all platforms where users express themselves, like Facebook, Instagram, Tumblr, TikTok, Twitch, Wattpad, Imgur, Giphy, etc. etc.

FINAL These platorms are liable for copyright infringement by their users.

This is the core provision: Legally, anything we post to platforms will be treated as if employees of the platform had uploaded it themselves. If even a single user commits a copyright infringement, it will be viewed as if the platform had done so itself. This will force platforms to take drastic measures, since they can never say for certain which of our posts or uploads will expose them to costly liability. They may well need to restrict who is allowed to post/upload content in the first place, demand personal identification from uploaders and/or block most uploads using overly strict filters to be on the safe side.

FINAL Licenses that platforms take out cover uploads by their users, as long as they act non-commercially or “don’t generate significant revenues”

For example: If YouTube negotiates a license with a film studio for their trailers, casual users will then no longer be blocked from uploading these trailers (and adding commentary, for example) – but not professional vloggers who make a living on the platform, who would be “acting commercially”

FINAL The law should not result in a “general monitoring obligation”, which is forbidden by current EU law

This is merely window dressing: Even if Article 13 doesn’t explicitly establish such an obligation, it will lead platforms to monitor all user uploads anyway.

FINAL Uploaders can complain about blocked uploads and request impartial, human review.

This doesn’t change the fact that users like you and me will be considered “guilty until proven innocent”

FINAL The Commission shall organize debates between platforms, rightholders and user associations and consider their input when they publish guidelines on exactly how to best comply with the law.

This is unlikely to alleviate any of the negative effects, as it won’t change the letter of the law.

TBC If platforms do not have authorisation, they must put in place upload filters (stated as: cooperate with rightholders to ensure that works they’ve been informed about never appear online).

Platforms will never have authorisation for all copyright-protected content in the world, so this will always apply.

TBC Platforms run by startups (small and micro-sized businesses) are exempted from the law.

This was one of the European Parliament’s main improvements to the text. Unfortunately, it is now in danger of being dropped in negotiations.

TBC How much platforms must do shall be proportional to their size, the amount of works they host, and whether “suitable and effective” upload filters are available.

This provision will need to be interpreted by courts on a case-by-case basis. To avoid risky and expensive court cases, platforms will comply regardless of these factors to be on the safe side.

TBC Legal content should not be blocked.

Wishful thinking: Automatic filters remain fundamentally unable to distinguish between infringement and legitimate uses such as parody.

CONTROVERSIAL If platforms can demonstrate they have done everything they can (e.g. deploying the strictest possible upload filters) they shall not be liable for infringing uploads that slip through.

CONTROVERSIAL When infringements do slip through, rightholders may request that they be taken down and prevented from being reuploaded in the future – if platforms don’t comply, they are liable.

Such a “staydown” procedure requires upload filters: Platforms need to surveil all user posts to identify reuploads of reported works. Council is insisting on this, and would apply it even to those platforms not required by Article 13 to otherwise filter (e.g. because they are small).

CONTROVERSIAL Parodies and other uses of existing works uploaded for non-commercial purposes, or which don’t generate significant revenue, should remain online.

A restatement of several existing copyright exceptions, but mandatory for all member states in this context, which the exceptions aren’t (that’s good!) and limited to non-commercial/unsuccessful uses (that’s bad – should parody only be allowed if nobody’s watching?). It remains entirely unclear how this ought to be achieved, since algorithms can’t ensure it.

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Your elected representatives in the European Parliament will have one last chance to reject Article 13 when it comes up for the final vote just before the next EU elections. Get ready to reach out to your MEPs!

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