The EU’s Article 17: A manageable UGC disaster?

Comprehensive digital policies and practices ensure that a business complies with regulations. Counterintuitively, they also help the bottom line, unlock opportunity and streamline operations.

Kristina Podnar
April 16, 2019

I remember my surprise very clearly a few weeks ago -- so skeptical that I nearly did a double take, asking myself, did it pass?  It was the moment I first read that, by a vote of 348 votes to 274, the European Parliament had voted to adopt a copyright reform that could, among other things, change how user-generated content (UGC) is used and leveraged on the Internet. Julia Reda, a German MEP who opposed the measure, said it was a “dark day for internet freedom.”

As someone who makes their living as a digital policy consultant, now is the time for us all to pay attention to the Article 17 (formerly known as Article 13) debate. While I do not consider myself a regulation “alarmist,” and firmly believe that every company and organization should have comprehensive digital policies and practices, Article 17 will most likely have some genuine consequences to business, intended or otherwise. On top of this, Australia has passed a controversial new law, reflecting a lack of self-governance by the large platforms, aimed at preventing violent crime and acts of extremism from being live-streamed on the internet.

Why Article 17 is a big deal

For many marketing-dependent businesses, such as GoPro and TripAdvisor, UGC is a dream come true. It is incredibly inexpensive and frees staff for other business efforts. Done right, UGC does a better job of increasing brand engagement than traditional promotional activities. Users are twice as likely to share UGC than content generated by a brand; not to mention the search engine optimization benefits. In some fashion, Article 17 will change all of that.

Article 17 transfers responsibility for copyright infringement from individuals who create the content to the owners of the platform where content resides. The first update in copyright law since the beginning of the century, Article 17 would impact more than the big technology and social media companies. It will likely affect every business that has UGC embedded into its digital marketing or communications. Outside of the large tech and internet behemoths, it appears that the only way to enforce the law is for businesses to pre-moderate content and verifies that what is being uploaded does not infringe copyrights. Organizations will no longer be able to rely on that disclaimer on the upload box as they have to date.

What it means for your business

Facebook, YouTube, Twitter, and others provide a wealth of digital marketing opportunities to large and small organizations. Businesses enjoy customer reviews and posts to social media touting good products and services. That could all change, particularly if the publishing of UGC slows or becomes outdated before it is live. Some UGC will be blocked. Neither bodes well for the voice of the customer.

The world of marketing and user advertising through content generation could change as we know it. And not for the better! What are some likely scenarios?

  • If you currently incorporate any UGC, such as a product or service review, or enjoy customers sharing their experience online, you would need to adjust your feeds in case they die out.
  • If you host a platform where customers can upload information to share publicly, you would need to invest in a good filter to check content being uploaded and dedicate staff to flag false positives.
  • Your business may face increased liability and will need to decide whether the risk is worth it, change your UGC strategy, and, most certainly, work with your legal team to modify your content ownership and upload policy.

What should we do right now?

EU member states have two years to integrate Article 17 requirements into their local laws. We have a good sense of how the process works given last year's adoption of the EU's General Data Protection Regulation.

The good news is that business everywhere, if unified, could influence the interpretation, if not enforcement, of the measure. Improving copyright practices immediately could stave off the most stringent enforcement scenarios and afford the big platforms (e.g., Facebook, Google) less scrutiny, which would benefit other businesses as well.

Social media and sizeable digital publishing companies are a bit like the pre-1984 telcos. They define both the UGC rules engine and the advertising, reaping benefits on both ends, all the while shaping the digital marketing industry. Given our lack of comprehensive industry standards or even a standard-bearing body, it is unlikely that the alarm will sound soon with a call for all enterprises to do the right thing and respect copyrights. In its absence, if your business is impacted, consider these activities:

  • Audit your digital channels for UGC and whether the content is associated with any disclaimers or posting conditions.
  • Consider removing UGC that has not been addressed for risks & opportunities until you can document policy and provide a framework (see my book on The Power of Digital Policy to get this done).
  • Start educating your workforce.
  • Begin considering the scenario of marketing under Article 17 and what other approaches you might want to leverage to make up for the reduction in UGC flow.

While I see issues with this new law, fundamentally I firmly believe that companies creating smart, sound, and comprehensive digital policies and practices.  Of course, they ensure that a business complies with regulations; but, counterintuitively, they help the bottom line, unlock opportunity and streamline operations.

So don't bury your head and hope that this new regulation will go away or not impact the United States. Most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions. You might be operating in the US and other non-EU countries, but the new law could spell the death of your UGC efforts. Get ahead of it now, while there is still time!

Photo by Goetz Heinen

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