Articles 11 & 13 in EU Copyright Plan Could Spell Disaster for Link Strategies & Memes

Back in September, the European Parliament voted in favor of highly disputed new copyright laws that could end up forcing large tech platforms to up their regulation and security of copyrighted material.

To break it down further, “The European Union Directive on Copyright in the Digital Single Market” (its official title), will require sites like YouTube, Facebook, Twitter, Reddit, and Imgur to do a LOT more to make sure copyrighted material isn’t being illegally shared on their platforms.

Wait, they haven’t been doing that this whole time?

Well, long story short, no.

Previously, the responsibility was on the actual copyright holders themselves (aka the companies producing the audio, visual, or written content) to take action.

Now, however, it will be in the hands of the platforms or publishers hosting the alleged copyright-infringing content.

At a high level, this sounds like a step forward, giving artists and content creators their deserved “dues,” but the directive proposes two incredibly controversial conditions – articles 11 and 13, the so-called “link tax” and “meme ban” that could spell trouble for marketers.

What’s Happening With The “Link Tax?”

The purpose behind this article 11 (a.k.a. the Link Tax) is to get news outlet sites to pay other publishers for displaying their content.

Let’s walk through this one.

Say you search for an event that just happened, like “Best Picture Oscar 2018” and you click the news tab on Google to see who won.

Google shows you the first few lines of an article that answers your question, you close that tab or exit the browser. Job well done, Google.

But who posted about the winner?

You probably don’t even know what site it was that had the article, let alone who specifically covered the story.

Article 10 aims to give these people credit where credit is due. Under this directive, Google News would have to pay the author or website to display that content, even if it’s just a few lines.

This opens up a ton of subjectivity.

How much can news aggregator sites (i.e. Alltop, Feedly, Google News) be allowed to show without paying? When do they have to pay? When the link was clicked? What if the link just had an impression? The article isn’t clear on any of this, but more on that in a bit.

Let’s talk about the fun stuff first….

Why Ban Memes?

Until now, memes (like everything else) have pretty much been fair game for anyone to post, repost, and customized on sites like YouTube, Facebook, Twitter, Reddit, and Imgur. Article 13 by the EU, however, would ensure that the creators of content get credit/payment for their work moving forward – including memes.

Creators certainly haven’t missed out on potential earnings when it comes to memes, thus far, but that isn’t to say they shouldn’t be compensated for their work and creativity.

Take Tardar Sauce, the famous “grumpy cat.” He made his owner over $100 million in the first two years of the meme taking off, but this wasn’t in the form of “royalties” one would typically receive for use of their image.  

How Would it Be Enforced?

Simply put, if a user’s IP address is in one of the EU states, all content they shared or uploaded would need to be free of any copyright or the site would have to pay to display it.

They also wouldn’t be able to view or interact with posts that someone outside of the EU posted if it contained copyrighted content. A sort of “filter” would censor anything that fails to meet the standards proposed by Article 13.

Now, some say that memes as a whole are protected as parodies and would not (and should not) be removed.

Others question any AI filter or removal tool’s ability to distinguish between a parody and an actual infringement, and whether memes will be caught regardless of their intent.

Why Marketers Should Care

These articles are being interpreted in many different ways, but the most concerning for marketers is that if the directive passes, it could mean that platforms will be required to pay a fee in order to link or share a news article, and have to start filtering and removing copyrighted content in the EU.

It’s important to note that this would only be a concern for marketers in or with audiences within the EU states. Things that you post or share might not reach those audiences if they contain copyrighted content.

If this sounds like you, you will have to get creative when trying to capitalize on popular content to audiences within these regions.

If your brand has previously used memes or other viral assets as a way to show your personality and connect with your audiences, you’ll have to hit the drawing board and possibly have to come up with your own memes.

This also raises concerns about video marketing. Our Director of Video Training & Strategy, Zach Basner reflected on this:

“The main reason video marketers are scared about the implications of Article 13 is primarily the technology that would be implemented to protect copyright holders. For example, if I were to reference the Dallas Cowboys in a video, and use a clip of a sports game, would the algorithm assume I’m infringing? Where is the line drawn for infringement?"

As YouTube CEO Susan Wojcicki stated, this legislation will lead to other “unintended consequences” and makes platforms like YouTube “directly liable for [smaller original content creators] content.”

As for the Link Tax….

There’s not a lot of answers here. At its worst, marketers in the EU affected by article might have to pay when linking to other news outlets, or even have to pay those outlets to host your content. Again, the article is up for interpretation.

The bottom line is creators will start getting more credit for their efforts. This could mean Google might try to will offset those kinds of charges by increasing ad costs elsewhere. There is a lot to be worked out as the directive moves forward.

Now, before all the Redditors and meme lords out there take up arms, one big thing to remember is that this is NOT law yet. And even if it does become law, there is a lot of wiggle room when it comes to actually implementing these articles.

Directives are a form of legislation that basically tell member states “you have to hit this goal in order to be a member.”

From there what the states actually put into law can mimic the directive word-for-word, or have different variations, as long as that objective is met.

So, if this directive on copyright passes, all member states will be required to pass their own individual legislation that aligns with the goals of it.

To avoid getting into the nitty-gritty of the articles, here is the official documentation of the directive.

Simply put, “The European Union Directive on Copyright in the Digital Single Market” is designed to limit how copyrighted content is shared on online platforms.

Bottom line is that the “goal” that would be imposed upon the individual EU states would make online publishers (including small businesses with blogs) responsible in case of a copyright infringement, and generate revenue for the content creators themselves.

In other words, if you or someone on your platform violates the directive, you’ll likely need to pay up when previously you just had to remove the content if the creator requested.  

What Are Others Saying About This?

There are two clear sides to this debate.

Defenders of the directive are lobbying groups representing the content producers who seem to be quiet as the European Parliament is proceeding with negotiations before a final vote next year.

As they move forward, however, the other side has been pretty vocal.

Large publishers are not happy. Companies like Google, Facebook, eBay, Amazon, Netflix, and Wikipedia are campaigning with lobbying groups to get the directive dismissed.

Check out what YouTube CEO Susan Wojcicki had to say about Article 13.

Operation #SaveOurInternet

Earlier this month, Reddit posted an announcement stating that they would be blocking the site in the EU to protest the EU Copyright Directive:

The post states that Reddit has "repeatedly warned about how an overboard EU copyright directive could restrict Europeans' equal access to the open Internet– and to Reddit. But time is running out. To drive home this point, we are blocking Reddit in the EU today from 09:00-17:00."

It linked to a site called “dontwreckthe.net”. The site is dedicated to the opposition of Articles 11 and 13 and offers potential solutions. The site also announces partnerships and support from Medium, Patreon, Vimeo, Reddit amongst others.

So, What’s Next?

The directive failed to make it through the European Parliament in July of this year. Surprising no one, the internet exploded with… yes, you guessed it… memes about the meme ban.

However, now that it has passed with some minor revisions, the European Parliament now has to enter negotiations with the other bodies of the EU government, the European Commission and the European Council to decide on the final wording of the directive.

Early next year, it will be back on the desk of the European Parliament for a final vote.

If the directive makes it past that final vote, the member states have two years to comply to the new regulations.

Again, EU directives are NOT LAWS, but simply guidelines that states are required to follow, so what the reality of the impact these articles will have on European states remains to be seen.

We will keep our eyes on the specifics of these articles as the EU Parliament finalizes the wording of the directive.