Copyright law has been a feature of art production since the Statute of Anne in 1710 the first legislation to provide for government-enforced copyright protection. The fundamental aim of copyright law is to make an artist the sole owner of their intellectual property, and by extension, the sole profiteer. Protecting the rights of artists to profit from their own work is what makes art a viable mass market career.

One may justifiably question the need for professional artists. The fact is however that artists are a pillar of any society. There are the anthropological and philosophical arguments about how artists chronicle human condition through the lens of their time and drive advancements in philosophy, but even speaking pragmatically, ‘content creators’ serve two main functions in modern society. Firstly, they entertain people; secondly, from a capitalist perspective, they create jobs. Whether it be printers, distributors, or more recently, online hosts, the production of art facilitates an increasingly large amount of dependent fields. It is vital to this sprawling industry that new/novel content is profitable to its creators and the prevention of plagiarism is paramount to this system.

Traditionally, it has been very simple to regulate the process of content theft.  The logistics of physical distribution meant that any creator in search of a reach further than Walt Whitman and his wheelbarrow would have to find a patron or established publisher. This limited the amount of works that could be produced and distributed, which made regulation relatively straight forward. With the advent of the Internet however a wild west of content publication was created. With the effective elimination of the issues of distance and raw materials, content duplication and theft became a crime easier than stealing candy from a proverbial baby. Legislators have been scratching their heads over regulating copyright on the Internet for many years, but on June 20th the European Commission will vote on a proposal which they claim will be a vital first step in creating a long term solution this problem. However, the controversial Article 13, has the potential to do far more harm than good in this regard.

Article 13 as proposed by the European Commission (text below) is exceedingly vague in defining of the types of hosting sites it applies to. The hosting sites are described as “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.” This definition has been criticised by many as it may include, for example, online educational resources.

Article 13 as proposed by the European Commission:

Paragraph 1

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.

Paragraph 2

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

Paragraph 3

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.

Another problem with the proposed wording is the fact that it requires the hosting platforms to put in place measures to prevent the use of illegal content. This means that in the event that an infringement is made, the platform is legally liable. This may force platform holders to impose strict filters on content uploaded from within the EU to avoid legal ramifications for acts by users that are entirely out of their control. Automated filters have been known to cause headaches for legitimate parody and educational content creators; making such Content ID systems a legal requirement does not solve the problem. Indeed, the vagueness of Article 13 rather broadens their remit. The article attempts to ameliorate this by requiring service providers put in place complaints and redress procedures for aggrieved users in Paragraph 2, but not only because it force users to go through a appeal process that they may be undeserved of, but it also creates a ‘guilty until proven innocent’ dynamic, in opposition to article 48 of the Charter of Fundamental Rights of the European Union. Though since there will be no broader legal ramifications for the website user beyond blocking the upload of their content, this may fall through a loophole.

If Article 13 is not the correct solution to this problem, what is? The problem with Article 13 is that, while it has the potential to help content creators, it also has the potential to hurt certain independent creators such as let’s players, video essayists, remixers and meme artists. Memes, by definition, require the appropriation of another’s work. For that reason Article 13 discourages the creation of new media, which is retrograde to the aims of copyright law. That being said, one could equally argue that independent online content creators typically appeal to niche audiences and employ small amounts of people. This raises the question: does Article 13 contradict the aims of copyright law?

Perhaps this is the issue with the current attempts to fix the online copyright problem. Since large media conglomerates create many jobs, they are powerful lobbying entities. If I publish a work tomorrow, it will remain under copyright for my entire lifetime and another 70 years after my death. For those 70 years, the copyright is not in place to encourage me to write a sequel. It could be argued that the 70 year limit encourages originality by prevents creators from simply reusing the properties that they were interested in as children, but as any 21st-century filmgoer knows, there are plenty of rehashes of things they enjoyed as children. So what purpose does the extra 70 years serve? The answer is that it facilitates the continued profiteering of companies who find themselves in possession of the rights to an intellectual property.

The question is posed to us as a society, what do we want to achieve with copyright law, in this new information age? The European Union is an institution that is capable of pursuing idealistic goals which are counter to the demands of multinational corporations: for example, the EU ruling that Apple was liable for €13 billion in Irish taxes (whatever your feelings were on that it’s a can of worms I’m not going to open today). The European Union has the power to take a bold new direction with digital copyright law and to set future precedent. That is why I firmly believe that a No vote followed by another session at the drawing board would be a result most beneficial to all European citizens and for all users of the internet.