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This post is a response to a discussion I’ve been having via Facebook with a friend around the European Union’s recently passed Article 13 and the effect it may have on culture but more specifically small artists. Due to the previous conversation, I mainly refer to music & games but the basic arguments hold for other media and content. I’ve pulled this out into a separate post as it was getting a bit long for a Facebook reply...
Notes:
I refer to Article 13 throughout as this is how it has been known and debated for many years, however at the last moment it was renamed as Article 17.
For general information and criticism of Article 13 I recommend the writings of German MEP Julia Reda.
Let me also include a Caveat - I’m neither strongly pro, nor anti EU, despite having been lumped into one “team” in the aftermath of the UK's referendum of 2016. I’m still a believer in the benefits and negatives of being part of a primarily economic union, but without the political union (specifically foreign and home policies). As such this post is an attempt at discussing the specifics of Article 13 without getting bogged down in any of the other politics around Brexit.
On the face of it Article 13 is there to ensure musicians and other content creators are fairly paid for their work and the large tech companies such as YouTube and Facebook stop profiting from adverts served alongside content uploaded by their users.
If artists getting paid fairly was the only effect of Article 13, it's unlikely there would have been an estimated 200,000 protestors in Germany prior to the European Parliament's vote.
So how could the introduction of this law affect smaller, often independent artists who do not have the backing of one of the big six media companies?
In order to properly enact the terms of Article 13, Tech companies will need to have a database of all content to cross reference and check against user uploads. To start with, these licenses will come from the large media companies who can provide APIs to their catalogue and provide a feed of the ever changing rights of works. New systems will have to be developed over time to cater to individuals or hobbyists - potentially requiring any artist to spend time, keeping documentation and registering works with a central body if they ever want to share or use their own material online. Creators are less free to do what they want with their own material.
Maybe artists might be happy to waive their rights in the early days in order to benefit from being on the platform? We don't know the details yet, but Article 13 could fall under the approach as Article 11 (a similar law that is at the same stage) where creators will legally not be allowed to exempt themselves and let others link to them without charge. [Article 11 is a whole other conversation, not covered in any detail here.]
Uploaders of content have a long history of their time and resources being wasted by false copyright claims. This includes claims against an artist's own music, original music falsely claimed by Sony and Universal, five claims against 10 hours of static noise and many more examples.
The penalty for making a false claim? If you're a large enough publisher then nothing. No cost to you and only potential benefits.
Beyond just being a problem with over zealous automated systems or lawyers there are active efforts to use copyright claims for extortion. Under Article 13, with penalties being respectively higher this has potential to become a much larger problem wasting valuable time of independent creators.
It's not just corporations making incorrect judgements about content. Although not a copyright complaint, 550 false claims were made in a week against archive.org from just one EU body. The claims related to archiving and making available "objectionable" material that had previously been published elsewhere online. If the governing body is unable to accurately categorize content before requesting a takedown, perhaps they should be more cautious in dictating rules to others.
Edit - added 17th Apr 2018
The latest high profile mis-categorisation of video content: YouTube mistakenly flags Notre Dame Cathedral fire videos as 9/11 conspiracy
How do most musicians learn to play an instrument? Normally it isn't by playing their own compositions, but practicing covers of well known music. Uploading this type of material risks triggering copyright filters, especially if you've gotten good! Feedback from other, more experienced artists will become less easily available as videos are blocked.
Youtube processed over 300 hours of uploaded video per minute in 2017, that is almost half a million hours of video a day that would need to be cross referenced against all licensed material ever created. Technically that is hard - sure there are heuristics to make it easier but we are some way off computationally being able to do this with any serious level of confidence. The algorithms would then need to make a judgement call on whether the 48 seconds of audio constitutes any any conflict and if it does whether it comes under fair use.
You probably couldn't watch the video from the last link as it's blocked in most countries on "copyright grounds". At the time of writing a currently working mirror is still available. For those not in the know this video uses A-Ha's take on me, over some custom footage from the video game Dark Souls. The original upload had been viewed millions of times before being blocked. Almost anyone who had played, and enjoyed, the game would appreciate the video - it itself was a take off of another "fan" video by Marlon Webb which has spawned multiple parody videos. For a non trivial number of people this video is part of their culture.
Money raised from advertising alongside this video should in part, at least go to the copyright holders of the music, but making a call on what is fair use is hard, it is simply safer to block the video outright. Thus the creativity of a person who has genuinely added to our culture is shut down and society is less enriched as a result.
The logical step for a company that is trying to enforce Article 13 is to always err on the side of caution. If an upload is ambiguous with regards to a match - just block it and let the author/uploader appeal at their own time and cost.
We have not even taken into account live streaming with the technical and ethical challenges this brings up.
Sure you might be happy to upload your creations to Youtube knowing they will eventually develop a robust system for filtering and blocking but there are so many other small services that contain material not found on Youtube, these services do not have the resources to fully enact Article 13.
However in the short term there are also risks that large players will simply stop serving member states of the European Union. Precedence for this has already been set by Google. In 2015, at the behest of the local Press, Spain brought in legislation that fundamentally broke the way Google News could work. Rather than adhering to and changing the way their News service worked, Google simply stopped serving Spain.
publishers saw traffic fall on average more than six percent, while smaller publications saw it drop by 14 percent
Following outcry from the media, this caused a revocation of the law in Spain and Google reinstated their News service.
At least once a day I am met with a "this content is not available in your region" due to the GDPR act of 2018. Usually these are news or political sites based in the USA or Canada, but on occasion include software or programming sites that help with my day to day work. It is simply easier for many companies outside of the EU to block access rather than comply with draconian regulations. The end result is that we in Europe are informationally poorer as a result of a well meaning but badly implemented set of laws.
Sure Youtube and Facebook will be able to handle the technical side better than anyone else, but these were both startups once that have grown. A startup that hasn't gained traction in 3 years will be forced to comply with all the rules around user uploaded content.
Try to imagine how a legitimate competitor to Youtube could come about now, especially from within the European Union. The resources needed would be prohibitively high and risky. This limits choice as often it is smaller, newer services that cater to niche audiences as they are not bound by having to appeal to everyone.
Anecdotally, I spend time reading Hacker News and have seen founders of n+ promising startups saying they will geo-block the EU once these rules are implemented as they simply do not have the resources to deal with such logistics. Many times these are side projects run by people with full time jobs and funded out of their own pocket. Side projects can take years to generate revenue, if ever. But from year 3 they will now be liable for the whole of Article 13 compliance.
In the same way we tax companies (no business is in isolation, they all draw on common societal infrastructure and resources) No content is created completely by a creator. They have been shaped by media, music and collective experiences to be able to conceive and create their own art. The non-financial "tax" on content must be the ability to allow others to mold and modify content for the next generation.
OK so this is a weak argument by me and not usually an angle I'd advocate as it's not directly addressing the issue, so feel free to disregard it.
Looking at those most in favour of Article 13 we see artists like Debbie Harry and Paul McCartney - people who made good money in pre-internet times and although may have been radical in their own way at the time, are now firmly conservative in their views regarding keeping the status-quo.
Those opposing Article 13 fall into, what I believe is the more progressive arena - people like Wyclef Jean and Tim Berners Lee. Rather than trying to enforce old ways of control through legislation, they approach the problem with small practical changes that move us forwards.
Reaching a wide audience and generating fans is easier than it has ever been. Services like Youtube and Facebook have been effectively a free marketing platform for small bands, game developers and film students. Providing a platform with reach and power that 20 years ago was unimaginable. Yes they have made vast sums from this, and in my opinion probably too much, but culturally we would have less choice and promotion of small artists would be orders of magnitude harder if they didn't exist. As a society we have embraced the tech giants while only wanting the good side of the free services they provide, and feeling aggrieved that they are not entirely altruistic.
There is hope! People do want to pay for content even in area's deemed high in piracy. Steam is a platform for the distribution of PC games. Around 10 years ago, their expanded their service to Russia against all conventional wisdom. It was "well known" at the time that Russians only pirated games and wouldn't pay. However by providing quality content and a service that was better than piracy, Russia became a highly profitable channel for Steam and it's parent company Valve.
Maybe it is time we start to accept that other methods of earning for content are the future, rather than direct cash for "ownership". Hobby or casual artists are leveraging services like Spotify to earn extra income for little extra effort. This is unlikely to be a complete or long term solution to proper remuneration, but alongside live performances, subscriptions or licensing may be the future.
It's not always easy to find other ways to make money, and sometimes these are detrimental to the world. Video Game's have had a surge in free-to-play games, funded by loot boxes - these have generated Billions in profits for companies while arguably making gaming less fun or even harmful to individuals and society.
The problem of getting paid for artistic and creative work is an old one and I honestly don't have a solution that will satisfy everyone. But I can be sure that Article 13 as passed, is not the answer. The implementation of this will only strengthen the big players of media and tech while doing very little to help the little guy, the amateur and our wider culture.