What Retailers Need to Know About Article 11

What Retailers Need to Know About Article 11
May 3, 2019 Rachel Hobble
Law books in library

Team Virid sat down with Marc Whipple, the intellectual property attorney behind Legal Inspiration! Whipple is licensed to practice law in the state of Illinois and before the United States Patent and Trademark Office as a Registered Patent Practitioner.

Q: Let’s jump right in. What are some common misconceptions about Article 11? 

A: Well, it’s actually not called Article 11 anymore. Last week, the European Commission renumbered all the articles, and it is now Article 15. Article 15 is not a ‘link tax.’ It explicitly excludes the act of hyperlinking, but it could, however, include the embedding of content. This legislation is not actually giving anyone new rights. It’s not making any copyrights stronger, or protecting news organizations with a new kind of copyright. It simply allows a publisher to publish content on behalf of the author and to take legal action directly against people who republish it, without having to get a copyright assignment or even involve the author at all.

Q: How can retailers expect to be impacted by this legislation in terms of how they leverage UGC? Or is there any impact there? Will small businesses face greater challenges complying?

A: If you are a content re-poster (say your business has a message board or forum, or a blog that allows consumer comments), you will need to make sure you are complying with this legislation. Retailers would not be in any more trouble now than they would have been before when it comes to re-posting copyrighted materials. However, say you are re-sharing a quote from a consumer’s blog post about your products. And say an EU-based news or press entity has a license to publish that article. Within (roughly) the first 2 years of that piece’s publication, that news or press entity can take direct legal action against you for re-posting that content. It’s not a small freelance author who might act: it’s a large media organization with much greater resources. If you want to re-share content, the safest choice is to get a license, possibly by going straight to the author or originator of the content to obtain a license to use their material.

Q: Will small businesses face greater challenges complying?

A:  With Article 15, compliance is no different than it was before, there’s just a potential new party that can come after you for not complying. The risk of being noncompliant is now greater, but there’s no direct increase in the difficulty of complying.

Article 17 (formerly Article 13), provides for some exceptions for some of the smaller players. It depends on the number of users, the length of time they’ve been in business, and the amount of content in use on their site.  That Article really is meant to apply to online content service providers like YouTube or Twitch. It’s debatable if a small retailer could fall under that category, but not impossible. And yes, with Article 17 a lot of logistics are involved with achieving compliance.

Of course with logistics, the bigger you are, the easier it is to execute. However, all re-sellers or small businesses should reach out to a lawyer to review their compliance requirements. Compliance can be expensive, and some smaller retailers may choose to simply cut certain pieces of content from their site, rather than attempt to achieve compliance.

Q: We’ve got to ask since everyone wants to know…what about the memes? 

A: Article 17 provides exceptions for caricature, parody, or pastiche. Of course, there are always cases where it depends, but for the most part, memes are not illegal in the EU.

Q: Any final thoughts that you’d like to share with our readers? 

A: What some people don’t realize is that this regulation was passed by the European Commission, but it still has to be implemented by Member States (individual EU countries) to take effect. This process could take some time. However, this doesn’t mean that retailers do not need to be concerned about this new legislation right now. Take the GDPR, which has not been in place for even a year. Businesses are already facing major fines for lack of compliance. I think that people should take this opportunity to really review their Intellectual Property and use policies and protocols. Industries, regulators, and governments are waking up to the fact that the Internet controls a lot of commerce and human civilization. This is an opportunity, as much as it is a problem. Especially for businesses that have been around for any length of time, the process to achieve compliance will be so much more complex. Start now. Get your house in order.

For more information regarding Article 15 and its potential effects, be sure to read the legislation here, and reach out to an expert like Marc.

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