If you operate a tube style platform such as YouTube, your world is about to change courtesy of the European Parliament. Less than a year after the GDPR became enforceable, Europe is at it again and this time, tube sites are the primary target.
On March 27, 2019, the European Parliament voted to adopt the European Union Directive on Copyright in the Single Market (the “Directive”) which was first introduced in 2016. The vote tally was 348 to 274 with 36 abstentions. The Directive, which is commonly being referred to as “Article 13” or “Article 17” (note that Articles 13 and 17 are only two parts of the Directive and the Directive has other controversial components) puts more responsibility on services that permit user-submitted content such as YouTube and social media platforms, to stop the sharing of copyright-infringing content.
Tube sites, social media sites and any other adult website that permits user submitted content needs to be on guard and start planning immediately. This is going to be a game changer.
The Directive was fiercely contested by some of the biggest tech companies in the world, including Google, who argued that the new rules would be catastrophic for Europe’s creative and digital economies. Twitter is also concerned about the potential impact on the “open, creative and conversational nature of the internet.” Meanwhile, copyright holders such as Paul McCartney support and argue that the Directive is meant to compensate copyright holders for the works that they created.
The 64 pages of amendments adopted for the Directive can be viewed online at EuroParl.Europa.eu, in addition to a press release titled “Questions and Answers on Issues about the Digital Copyright Directive,” which I encourage everyone to read.
Currently, copyright holders are required to flag alleged copyright violations … but under the Directive, online platforms will be required to filter or remove copyrighted material from their websites without having to receive notice from copyright holders. The Directive makes online platforms and aggregator sites liable for copyright infringement.
Large tube style websites are seriously concerned because they aren’t even sure how they are expected to identify and remove copyrighted content in accordance with the Directive. Many are arguing that the Directive will force platforms to develop and implement software that would screen/review content before it is uploaded to begin with. This type of software would be incredibly difficult and expensive to create and platforms are already questioning whether it’s even technically feasible.
Article 17 did carve out specific types of platforms that are excluded from the Directive including i) Not-for-profit online encyclopedias (example wikipedia.com); ii) Not-for-profit educational and scientific repositories; iii) Open source software-developing and -sharing platforms; Electronic communication service providers as defined in Directive (EU) 2018/1972; iv) Online marketplaces; and v) Business-to-business cloud services and cloud services that allow users to upload content for their own use (example, Dropbox.com).
From a procedural standpoint, following the approval from a majority of EU countries (which is expected to occur next month), each country that is part of the European Union (presently 28) will have to independently create laws that reflect the Directive within two years (Article 29). This means that each country has the ability to interpret and implement the Directive in its own way and website operators may end up with 28 different laws to comply with. This process will most certainly take time and be met with substantial legal challenges.
The entire adult entertainment industry needs to be closely monitoring the Directive and its implementation by European Union member nations. Tube sites, social media sites and any other adult website that permits user submitted content needs to be on guard and start planning immediately. This is going to be a game changer.
This article does not constitute legal advice and is provided for your information only and should not be relied upon in lieu of consultation with legal advisors in your own jurisdiction. It may not be current as the laws in this area change frequently. Transmission of the information contained in this article is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.
Corey D. Silverstein is the managing and founding member of the Law Offices of Corey D. Silverstein, P.C. His practice focuses on representing all areas of the adult industry and his clientele includes hosting companies, affiliate programs, content producers, processors, designers, developers, operators and more. He is licensed in numerous jurisdictions including Michigan, Arizona, the District of Colombia, Georgia and New York. Contact him at MyAdultAttorney.com, corey@silversteinlegal.com and (248) 290-0655.
