Article 13: a European perspective

SÉRVULO IN THE PRESS 05 Jan 2019 in Jornal Expresso

The proposal for a Directive on the Digital Single Market has been the target of strong criticism, particularly Article 13, which focuses on the issue of the "value gap". Let us begin by clarifying that Article 13 is not to the liking of North American’s great internet platforms, which, for almost two decades, have benefited from certain legislative precepts that have allowed them to affirm that they are "mere technical intermediaries" and to obtain profits through the unauthorised use of content protected by copyright, without remunerating the authors. It is no coincidence that such platforms have strongly criticised Article 13. This is because, interestingly, this is the article that, in its initial version, most changed the balance of power between these platforms and the European cultural industry. The truth is that Article 13 appears to defend European Culture, as it posits that the possibility of accessing and sharing protected content through the major internet platforms attracts and retains users of those platforms, so authors should receive a fair share of the value generated as well.

And contrary to what has been said, Article 13 tries to reconcile the interests at stake in a pragmatic way. The intention is to reach a successful outcome, despite the brutal campaign, led by the Pirate Party, to which the proposal for a Directive has been subjected and that has greatly benefitted the interests of North American’s great internet platforms. Thus, in protecting authors’ interests, Article 13 states, in its latest version, that the major internet platforms must obtain authorisation from those who hold the rights to the use of protected content on these platforms or, if the platforms so prefer, they should resort to technological measures that prevent illegal uses in their systems.

But the authors’ victory is hollow. Given that, in the absence of notification by the authors (or their representatives) of the existence of the practice of illegal acts on such platforms (therefore, the modest task of constantly monitoring cyberspace is entirely up to the authors, apparently), Article 13 removes any legal responsibility from these platforms. In the name of the users and the freedom of speech, Article 13 measures to prevent the illicit use of online content should not prevent the users from exercising their fundamental rights.

One thing is certain: in principle, I do not find that freedom of speech lies at the root of the controversy, but, rather, an imbalance of power on an Internet that is dominated by the said platforms. The EU is trying here to restore equity between North American’s great internet platforms and the entities that defend European culture, but only time will tell if it can succeed, particularly as the final version of the text has not yet emerged. For now, the Council version of Article 13 tries to appease the most aggressive voices and clearly places the relevant burden not on the big platforms but on the authors. It remains to be seen to what extent the diluted precept will have a useful effect for the European creator.