Nice to officially e-meet you all, my name is Weston and I’m on the legal team here at Patreon. I recently returned from a trip to Brussels where I was able to chat with some MEP’s and their policy staff about the intended and not so intended effects Articles 11 and 13 (and the lesser known Article 3) of the EU Copyright Directive will have on platforms and creators. Let’s save Articles 11 and 3 for another time and for now just focus on Article 13. There has been a lot of talk about upload filters and while that is a primary concern with Article 13, Patreon is primarily concerned about the affect this Directive will have on independent online creators.
The good news is the reassurance from EU policymakers that they do not seek to harm or make things harder for online creators. Both sides of this particular debate truly do seem to be looking out for what they believe to be the best interest of creators. Proponents of Article 13 want more cooperative licensing negotiations between tech companies and organizational rightsholders, who represent signed artists and creators. To incentivize tech companies to more comprehensively negotiate licenses, Article 13 holds tech companies liable for all user generated materials, mitigating liability for only those platforms who have come up with technological measures that prevent potential infringements from being uploaded.
This goal makes some amount of sense in theory, despite being largely divorced from reality (as no current technology is capable of adequately preventing infringement). Online companies (think YouTube and Facebook) seem to make a lot of money from online creations while the actual creators generally do not. So, the solution presented is to empower organizational rightsholders (think Publishers, Labels, CMO’s, PRO’s, etc.) to better enforce, negotiate, and collect fees associated with their creators’ copyrights.
The bad news is that most online creators do not belong to these organizations. In fact, the whole point of services like Patreon is to remove gatekeepers and democratize creativity. Patreon is almost exclusively made up of independent creators. These creators will once again be required to use publishing companies, licensing and collection agencies, performance rights organizations, distributors and other corporate remnants of the pre-internet creative industries to negotiate cooperative licensing agreements and/or enforce measures of infringement prevention.
Essentially, what this Copyright Directive has largely overlooked is the fact that the internet has done far more than just inadvertently making it easier to infringe other people’s works. Online platforms have given rise to a ‘remix culture’. A culture that realizes and acknowledges every new work as either being inspired by or created using pieces of previous works. Scientific discoveries build upon one another, language evolves from language, every generation begins with the knowledge of the last. Creativity is no different.
Everyone can create and upload works now, which means everyone is a copyright holder. This has made determinations of infringement difficult for even the courts to decide. Creativity doesn’t exist in a vacuum and infringements are not always intentional. Creators are inspired by, use bits of, comment on, expand, reinterpret, mashup, remix, remake, mimic, edit, sample and review copyrighted works. People create new and exciting works using old and wonderful works. Shakespeare consistently stole large plotlines and even whole scenes, the Beatles played cover songs for years before writing their own hits. This is not theft or infringement, it is the creative process. This process is why a balanced approach to copyright law is vital, and why Article 13 ultimately falls short.