In this guest post, CEO and founder of The Flaxen Liz Ferguson explains why EU Article 13 will impact everyone who uploads content to social platforms globally.

Last month the European Parliament voted in favour of Article 13, a copyright law that will dramatically impact the global digital content industry. Anyone putting content onto social platforms anywhere in the world, from broadcasters to music labels to influencers, will be affected by this law and the resulting changes to social platforms. We’ve put together a summary and interviewed some leading experts and rights holders in Europe to get better educated on the issues.

What is Article 13?

Article 13 is part of the new EU Copyright Directive which aims to create copyright legislation appropriate for our current and future digital landscape. This Article deals specifically with “online content sharing services”, or those platforms where users have the ability to upload content that they may or may not own the rights to. Examples would be YouTube, Facebook, Instagram and audio platforms like Soundcloud. The aim is to address long held concerns from traditional rights holders who own and distribute content like TV, film, music and sport, who have seen social platforms grow, in part, from unauthorised uploads of their content.

Right now if a rights holder wants to send a copyright infringement notice for unauthorised use of their content on a social platform they would send it to the uploader. Once Article 13 is implemented those infringement claims will all go to the platform that is hosting the content, and the platform will take on all liability.

Traditional Rights Holders

Traditional rights holders have been one of the main groups instrumental in pushing through the changes to legislation and in the main it does sound like a positive step for them. Social platforms will now need to license all content from rights holders in the same way that a broadcaster would. This means that rights holders can build in negotiated licenses with platforms to their distribution deals or simply choose to block all content.

In addition, the new law gives a perceived increase in power to these rights holders over the social channels who repeatedly upload unauthorised versions of their content. Ollie Lewis, Head of Broadcast at Premiership Rugby (UK) is positive about the change. “We have numerous conversations with the rugby platforms and their social channels about their unauthorised use of our content … it could be good news for us in our dealings with them and in protecting our official licensees and broadcast partners across the globe.”

On YouTube, the day to day workflow for larger traditional rights holders is unlikely to change. This group generally already have access to YouTube’s sophisticated system called ContentID which fingerprints their videos and auto-matches them with unauthorised uploads. Once matched, they can choose whether to block, track or monetise this content. But smaller rights holders might find it harder to get their content onto YouTube.

We spoke to Nick Savage, SVP Digital Monetisation & Strategy at NBCUniversal who helped to explain. “For IP owners who use ContentID not much will change – they still get to decide what happens – but for those that don’t, then the platforms are going to have to either take on the risk or block content they believe might be infringing.”

No one really knows how this is going to work right now and numerous rumours of a secret trust score or safety ranking have started to surface. There could become a need for platforms to rank their contributors by how trustworthy they are in order to allow some content onto the platform immediately. Those less trusted uploaders could see their content blocked; either temporarily while checks are made or permanently if it is found to be infringing.

Again, this sounds great for the large traditional rights holders doesn’t it? Nic Yeeles, CEO of Influencer marketing software company peg.co advises caution. “The irony of it all is that whilst the world—including the very individuals and organisations who pushed through Article 13—are trying to break up the big tech giants and remove some of their power, the inverse might actually happen. Building sophisticated enough content ID systems is such an incredibly cost-prohibitive endeavour, that only the tech giants will have the resources to build them”. Platforms requiring a similar solution will then need to license the software from these companies.

Content Creators and Influencers

YouTube released a video in early March stating that despite some softening to the language in the Article prior to the vote, they believed it would “still hurt, not help, European creators”. In the same video they state that there is ambiguity in the wording and that the Article “will result in online platforms like YouTube blocking content because they need to remain on the side of caution and reduce their legal risks.”

So it is likely that platforms will feel forced to exercise caution and block untrustworthy content prior to upload in order to avoid being in receipt of millions of copyright claims. In theory, if you own 100% of your content you have nothing to worry about. There may simply be a delay to the publish date or maybe no change at all. Nick Savage said “If I were to advise an influencer on what to do, I’d say absolutely avoid using any 3rd party content in your videos, it’s the simplest way to ensure no problems”. Things get a bit more complicated when you start to think about music and audio tracks, clips, trailers and memes. For example no one is currently clear on how content that would have previously fallen under ‘Fair Use’ like parody, news and criticism will be dealt with post Article 13.

We asked Si Barbour-Brown, head of UK talent management company The Sharper Group what advice he is giving content creators on his roster about future-proofing their channels. Si said: “As a… company that works with large clients regularly, we’d only ever use license free music in content and also have any big brands and studios white-list or release claims on any trailers or imagery they owned that we’d need for a specific post”.

This makes it unlikely that Sharper Group content will be blocked permanently, but there could still be delays to uploading unless these creators achieve a high score in the rumoured platform ranking systems. Si is supportive of the ranking of creators, and goes as far as to say “I strongly believe that all platforms should have ‘preferred’ creators/accounts that are made up of large companies and individual producers/influencers. This would definitely be a start in making it far easier to regulate who is permitted to use cleared and authorised content.”

Why is this a global issue?

Content sharing platforms will need to make technical and workflow changes in order to implement the legal changes that Article 13 dictates. It is highly unlikely that they will create a different version of their platform purely for the use of European creators and audiences. Nick Savage said “whilst this is an EU law the global platforms are tending to lean towards “the most conservative view” in terms of policy. So it wouldn’t surprise me if this was implemented globally.”

So changes are coming, and we will all feel the impact of these. Nic Yeeles warns the global industry “We have a couple of years for countries within the EU to implement the changes, and—much like GDPR—no one knows exactly how strictly enforced these regulations will be, or how severe the punishments will look for mishaps. But for countries outside of the EU not paying attention: it’s like seeing your neighbours’ house burn down and saying “Meh, it’s next door so we don’t need to worry about it”.”

It is clear that this change to EU law and the shifting burden of copyright liability onto platforms will force them to change the way that they interact with their users. These changes will have a far-reaching impact for anyone who uploads content to the internet regardless of their territory. Article 13 should be firmly on our global industry agenda and inform all future content strategy.