This is a special video.
Today we are talking about a topic the heavily affects this channel and, in general, all
of YouTube as a platform.
Don’t worry though, nobody is going to shut down this channel BUT, maybe those who watch
us from the European Union will no longer be able to watch some of our videos.
Yes, dear viewer, today we’re talking about ARTICLE 13.
Something you might of heard of, especially if you live in Europe because YouTube seems
to have replaced all of my ads which before were “Would you like a chocolate bar!!”
to be “Have you heard about ARTICLE 13?!”
Now let’s quickly make one thing clear.
We’re biased.
(Not a huge surpise though)
In fact, we are a playing an active role in this matter.
One member of the VisualPolitik team was in Brussels talking about Article 13 with policy
makers who are currently negotiating it.
That would be Fonseca (ALSO known as “drunk Spanish guy doing the title voiceovers in
some of our earlier episodes”).
FUNNY HEAR TO ADD A CLIP.
To this day, there is no association representing European online creators.
This is why a group of European YouTube channels decided to take a bit of initiative and show
our concerns to the relevant politicians.
VisualPolitik were are one of them.
So, for those who don’t know it, Article 13 is part of a EU directive to regulate copyright
online.
But the question now is…
What exactly is article 13?
Is it as terrible as many people say?
And the most important question of all is: what can we, the content creators, do about
it?
Today we are going to answer to all of these questions but, before we do… let’s take
a look back at history.
For the last few years answering the “What do you do for a living?”
question got complicated for me.
Some people, especially maybe the older set, tend to think “well, that’s nice dear,
but what about money?”
Some of them I just gave up, and I’m pretty sure my grandma thinks I’m a television
presenter here in Prague.
But the answer is that, yes, I make a living doing this probably not suprising to all of
you millenials watching…
Now we Britsh we don’t like talking about money.
Indeed, fun fact, we’re seven times more likely to tell someone we had an STD than
we are to reveal our income.
But, awkwardness aside, lets just take VisualPolitik, both the English and the Spanish.
Combined they get about 10 million views a month.
As you can imagine, this translates into something, it’s a lot of people watching...
Now, no, VisualPolitik doesn’t make us millionaires.
But, along with the Patreon donations (thank you!) and the ads, we can all draw a decent
salary.
And look… we are not the only ones!
There are thousands of creators just like us all across Europe: creators with enough
audience to make an income and even, create new jobs.
And that’s just YouTube.
It also happens on other platforms like Instagram, Facebook, and Twitch.
This means online creators have become an INDUSTRY.
Alright… so it’s not exactly the oil and gas industry, but it does exist.
It’s an industry that employs thousands of people in Europe and creates value to society
(most of the time…).
Yes, YouTube might be an American company.
But the World’s biggest YouTuber is PewDewPie and he is Swedish.
Is he still the biggest?
HE IS.
Still beating T-Series.
Go PewDiePie go.
Alright.
so what’s the problem, then?
Well, like I said, there is no association that represents us creators in Europe.
Media corporations or record labels have already trade associations and even big lobbies in
Brussels.
We don’t.
And why?
Mainly because we started little by little.
The story behind any YouTuber is: you start small, make a few videos, hopefully see a
bit of growth and then you say ‘OK, now I can go full time on this’.
As you can imagine, during this process, nobody thinks about creating a trade association...
Ya, know just in case, one day, the European Union is like “hmm lets introduce a big
old directive that really affects these people”.
OK, at this point its probably important for you to know how copyright actually works in
Europe?
Well, to this day, we are under the so called, “Ecommerce Directive” and, also, the “Copyright
directive”.
Both were passed back in 2001.
So how does this legislation work?
OK, let’s imagine I upload to VisualPolitik a videoclip from a band.
For example, let’s say I upload a song by TASMANIA (who often provide music for this
channel).
But let’s assume I upload their song without permission.
This means I’ve created something ILLEGAL.
TASMANIA, or the record label who holds their rights, they can sue ME…
Bad news for me.
They can request a big fine from me.
So do they do it?
Well… probably not, I’m a small creator and my pockets are just not that deep.
So, what can TASMANIA do?
Well… they can go to YouTube and they ask them to take down the video.
Indeed, this process is often mostly automatic: YouTube actually has a tool, a smart filter,
called CONTENT ID.
In this case, Tasmania would send all the information about their song to YouTube.
This way YouTube can scan the platform looking for the song.
Anytime they find it, they can take down the offending video.
This is the law works.
All fine, but hold on just a second because this is where the interesting part comes in!
Now Tasmania comes in and they ask YouTube:
‘Hey YouTube, errrrr.
How about instead of just taking this down you slice me off a bit of that sweet ad revenue
pie and send it my way?!”
So, according to the letter of the law, YouTube has to block the song if requested.
But the law doesn’t say anything about paying licences (which is essentially what Tasmania
want).
Nonetheless… since YouTube is pretty chill.
they wanna do business with Tasmania!
So they essentially say:
“Alright then, look, we can negotiate a licence… and we’ll give you a little slice.
Sounds cool?”
In other words: they negotiate a CONTRACT.
And now you might wonder… well how big is that slice of the ad revenue pie.
Well… according to the record labels, it is pretty low.
Just look at what Paul McCartney has said:
https://www.musicbusinessworldwide.com/sir-paul-mccartney-tells-european-parliament-vote-through-article-13-to-ensure-a-sustainable-future-for-music/ …today some User Upload Content platforms
refuse to compensate artists and all music creators fairly for their work, while they
exploit it for their own profit.
–Sir Paul McCartney
The question now is…
Is Paul McCartney right or wrong?
YouTube states they give the majority of the revenue to the record label.
But we don’t really know because the labels want to keep this information confidential.
We also don’t know because we asked them.
And nobody would tell us.
There is only one thing we know.
The European music associations like IFPY or IMPALA want YouTube to pay more.
They claim there is a so called VALUE GAP between the revenue YouTube generates and
what they pay to them.
In other words… they wanna have a stronger negotiation position.
And how can they do that?
Well, that would be with a new copyright law that forces platforms like YouTube to pay
a licence.
This is why, in the year 2016, the European Commission wrote the first draft for the…
DIRECTIVE ON COPYRIGHT IN THE DIGITAL SINGLE MARKET
According to this law, YouTube and the rest of the user generated content platforms must
compensate fairly to creators.
This means YouTube doesn’t give that ad percentage because they’re cool with it
but because they are legally compelled to.
And this is a big deal.
Because this means a better negotiating position for the record labels.
Alright, so far this doesn’t sound THAT bad, right?
Well… hold on a minute because now is when things start getting more complicated...
DEVIL IS IN THE DETAILS
As you might know, the European Commission itself cannot pass a law.
They have to send it first to the European Parliament and to the European Council.
These two institutions have to write their own version of the law.
And this is when the real issue with Article 13 comes up…
“Online content sharing service providers perform an act of Communication to the public”
Article 13.
Paragraph 1.
EU Parliament version
And now you might say…
Alright, Simon, what’s up?
Where exactly is the problem??
Well, let me translate it for you from EU Parliament language.
It basically means YouTube would have unlimited liability on the content that stays on the
platform.
To illustrate the impact of this, let’s go back to the TASMANIA band example.
Now, they wouldn’t sue only me.
Now they could sue me AND YouTube!
And remember my mention of deep pockets.
YouTube has those…
Boy does it…
In other words, according to this legislation, YouTube would have to spend millions in lawsuits.
Just think about it.
Every single minute, over 300 hours of videos are uploaded.
Chances are many of those videos can have some copyright violation...
And you just need ONE video with a copyright issue to give YouTube a multimillion dollar
headache.
So YouTube cant deal with that kinda legal exposure, so how would they avoid all of it?
Well… they would have to… build a wall.
A very strict firewall in this case.
Basically, any video with third party content would have to be blocked.
Of course, if you are in America, you could still watch it because this law only affects
the content watched or uploaded inside Europe.
So, if this law gets passed, good luck trying to watch videos inside of European Union.
And yes, I’m talking about most videos...
Because it’s really hard to work out what is, and what is not, third party content.
It’s almost impossible to identify it.
Basically, everything beyond a dude talking to a camera with a white background would
have a risk of being blocked.
And that includes this video.
Because right now I’m gonna show you a quote from Donald Trump on CNN.
Yes, I know what you are going to say now.
Come on, Simon, you haven’t done anything illegal there - that’s gotta be fair use,
right?
Well yeah, you’re right.
According to the law, I can use content like this for satire or illustration.
But guess what!
That YouTube firewall it’s not a lawyer, its an algorithm.
And algorithms don’t understand context or the law.
So this brand new YouTube firewall would just say ‘THIRD PARTY CONTENT!
IT HAS TO BE BLOCKED!!!!’
And the same goes when I show you this clip from TASMANIA:
Is this illegal?
Of course not!
But good luck making a robot understand legal caveats.
And really, all my YouTube comrades watching will attest to this, you already know how
many problems we have with the filters YouTube already have.
So imagine how tough it will be with an even more aggressive firewall.
But HOLD ON just a minute because there is an alternative!
There is indeed a solution.
A solution that makes everybody moderately happy and that is pretty realistic....
WHAT CAN IT BE DONE ABOUT THIS?
As I told you before, this copyright directive has been voted on in the European Parliament.
But this doesn’t mean the legislation has been passed!
In fact, we’re still in the middle of it all.
You see, the process to pass an EU directive it goes as follows.
First step, the Commission creates a first draft.
That’s how we got the first Article 13 draft.
Second step, this draft goes to the EU Parliament, they write another draft and vote on it.
This is why we have another version of Article 13.
But now there is a third step and a third player coming in: at thats the European Council.
The European Council is where all the member states are represented.
And, oh yes, they have approved ANOTHER version of the Article 13.
So yes, my dear viewers… we don’t have just one Article 13.
We have three different versions: from the commission, parliament and council.
European political institutions are so simple…
Said no one.
Ever.
So what happens next?
Well, now we are in the third step, which is when the Commission, Parliament and Council
get together and negotiate.
In Brussels speak, we would call this the TRIALOGUES.
(Yes, sort of a DIALOGUE, but with three people…
Like I said, never simple in Brussels, even the damn words they use).
So imagine a big room with a big round table.
On one hand, we have the Commission representative and her advisors.
On the other, the representative of the Parliament… and on the other, the one from the Council.
Counting all the representatives and the advisors, we have over 30 people negotiating.
They meet almost every week.
And yes, this is a loooooong process.
Shocker.
In this case, we have 3 different texts.
And believe me, the one from the council is very different.
“In the absence of the authorisation (…) an online content sharing provider shall not
be liable for the act of the communication to the public (…) when: it demonstrates
that has made best efforts (…) and upon notification by rightholders (…) it has
acted expeditiously to remove or disable access to these works”
Article 13.
Paragraph 4.
OK, let me translate it to you again.
This means that YouTube is liable for the content on their platform.
But this liability is mitigated.
Alright, so what does this mean?
OK, let’s go back to the TASMANIA example.
With this law in hand, Youtube must report to them the songs uploaded on the platform.
And they have to ask them whether they want to take them down or to get a licence from
it.
At this moment, Tasmania will have to add their data and metadata into a form.
This way, that filter YouTube already has, the so called CONTENT ID system, already knows
what to track.
But not only that!
According to this Article 13 version, if YouTube shows they have done everything possible to
protect the copyright, they cannot be sued.
In other words, if YouTube plays by the rules, they can avoid a lot of legal uncertainty.
Yes, they would have to pay more money to the record labels.
But there is no existential risk anymore.
And of course, we, the content creators, would be happy too because we wouldn’t have to
worry about all of our videos being blocked.
And finally, the record labels are also happy because they get what they need: better conditions
for negotiating.
So let me summarize it for you: what’s the difference between the Parliament and the
Council positions?
The consequences of the Parliament’s version is that European YouTube would become just
another TV channel.
Only the creators who already have a big audience would survive.
Why?
Because they are the only ones who can pay a lawyer to manage all the copyright issues
so YouTube will let them upload videos.
But there would be a big wall, pretty much impossible to surpass, for the hundred of
thousands of small creators.
But there is a way to find a common ground for all the players here.
Of course, it is a compromise, but that’s what politics are all about.
So now, the big question is… what comes after this third step?
What’s the fourth step?
Well, after this legislation has been negotiated in the trialogues, they bring it back to the
parliament.
There they vote yes or no to the text.
And then we go to the final step.
This is just a EU directive.
A EU directive is not an actual law but rather a guideline.
So after the directive gets passed, it has to go to all the member states where they
turn it into laws.
And this is another moment were online creators have to show up and speak to their national
governments.
And yes, if you’re a European YouTube creator watching this, right now… that includes
you.
If there is something we have learned from our trip to Brussels it’s that policy makers
don’t even know we exist.
And, if they don’t know us, as an industry, if they don’t know that thousands of people
live off of creating online content… they will not understand how many people might
go unemployed because of a bad regulation.
So if you liked this video, rather than ask you to subscribe today, I’d suggest you
share it with a friend - a creator, a fan, a European.
Hopefully someone who will help make a difference.
At some point in the future, we’ll probably all need to act on this, and here at Visual
Politik, we’ll keep you posted.
Thanks for watching.