Content created on platforms such as YouTube is being torn down in the name of copyright infringement.

Article 13 from the EU’s proposed directive on copyright has become the kiss of death to freedom of expression in the forms of music videos, parodies and comedy news sketches. It makes content sharing platforms liable for copyright infringements.

Given that the final vote to pass the directive containing Article 13 is 22nd January 2019, we the people still have a chance to stop this. You must call your local MEPs (Member of European Parliament) and ensure that when the time comes to vote again, they will vote against this directive.

As two technologically dependant generations, of millennials and Zs, it is up to us to make the noise. Here is why we should.

Article 10 of the European Convention on Human Rights gives us the right to freedom of expression. It is not without limitations, one of them being copyright infringements.

The EU’s commitment to protecting film, music and television content is warranted. This is especially true given the fact that technology has given rise to piracy of such content.

However, YouTube’s Content ID does not protect original or fair dealing content. It’s an ineffective system that detects violations where there are none. The technology that exists is not the effective filter that we need.

This leads to the worst results; it does not flag the video up for review, but automatically takes the video down or demonetises it. This means that it is the responsibility of the potential violator to appeal the decision instead of the copyright holder.

Guilty, until proven innocent?

This is no way to treat creators simply so Google will no longer be liable for copyright on their platform.

Here’s where it gets complicated.

THE LAW (read otherwise our reputation as lazy humans will only worsen)

Protecting our freedom of expression should beat the general right to own copyright. There is no current definitive case or treaty that makes it so, but here is the current law:

There are 21 exceptions to copyright infringement found in Article 5 (2) and (3). These are what you would expect: quotation for journalism or review; scientific or academic research (we only have to reference original works, which becomes the bane of our lives); or even parodies.

The parody exception is important because it is the closest thing to a meme or comedic video that the law currently identifies. However, it will not protect the plights of video game streamers.

As video streamers capture the game as it was sold, without modification, the game is protected by copyright. However, many streamers add commentary, reactions and general humour as they play the game. Arguably, this changes the work enough for it be something new in itself. Alas, there is still a vacuum of UK case law to affirm this.

Boring alert. The case of ‘Infopaq’[i] defines an original work as an author’s own creation where the sequence and combination in which words are expressed is the key deciding factor. Everything else is either a copyright infringement or an exception.

Thankfully, the case of  C-201/13 Deckmyn v Vadersteen[ii] is our saviour as it protects parodies.

Sadly, it’s about a nationalist calendar that resembled a beloved Belgian comic book. But they decided that a parody was something that constituted an expression of mockery or humour, and this definition could be expanded under the right conditions.

This would suggest that our funny videos remaking film scenes or music videos would be fine as long as they mocked the originals mercilessly. However, Content ID seems to only recognise the fact that the same lyrics are used, not the manner in which they are used.

One step further than this leads us to Ashby Donald v France (sadly reported in French but others cleverer than I have translated).

The important point made in this case is the fact there is a significant difference between ‘general public interest’ and ‘commercial speech’. The former is likely to be protected under Article 10 given court intervention, however, the latter would not.

Now, this all points to the fact that successful YouTube channels would not be protected as they can make lots of money off of their videos. This is unacceptable in a democratic society.

MY COMMON SENSE SOLUTION

In the USA, they do have case law to protect comedy news sketches. In August 2017, the couple who created H3H3 productions won their lawsuit in which they were sued for breaking copyright law.

This was based on the fact that their content was different (in legal jargon, ‘transformative’) enough from the original to be covered under fair use.

The EU must clarify the law on copyright and fair dealing/use, to bring the law into the digital age as they want. And recognise the importance of protecting mass content sites for their exchange of information.

Simply make and enforce an obligation for YouTube and Twitch to offer their platform creators access to better licencing. Platforms could buy licences themselves for their creators and then offer their creators access to it, for a fee, if they require.

It is essential that simple ‘public interest’ infringements be protected under freedom of expression and untouchable.

Video game commentary has a duty to be protected because it is the livelihood of hundreds of thousands of people.

Furthermore, those who want to play music while streaming need to not be afraid because a licence for such use does not exist. General licences can be obtained by shops for playing the radio, a similar system should be implemented for internet use.

So, because of my logic, we should strap our bodies to the building of the internet and do the thing we all fear. Calling your MEPs on the phone.

[i] C-5/08 Infopaq Internationale A/S v Danske Dagblades Forening Note [2012] Bus L.R. 102

[ii] [2014] Bus L.R. 1368