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The War of the Memes

There has recently been much debate over a prospective Copyright Directive (the Directive) within the jurisdiction of the European Union (EU). The full name of the Directive is: Directive on Copyright in the Digital Single Market 2016/0280. The most recent draft, including commentary on the amendments can be found here. This particular proposal has been the subject of much criticism and controversy. The intention behind the controversial Directive is to update online copyright laws in a way so that they are suitable for the internet age. However, there has been much debate over the implementation of such legislation. The proposed Directive has received support from many musicians and creatives who claim that the reforms are necessary to fairly compensate artists. An example of this is Sir Paul McCartney. Conversely, those who oppose the Directive fear that the provisions could in fact destroy: user generated content, memes and parodies. Among those who oppose the Directive are the inventor of the World Wide Web, Sir Tim Berners-Lee, and Wikipedia founder, Jimmy Wales.

The first draft of the Directive was initially rejected by Members of the European Parliament (MEPs). However, following a number of amendments to the first draft, the proposal was passed by the European Parliament. It should be noted that this is not the end of the matter. There will be a final vote in January 2019 on the final content and form of the Directive. Whilst the Directive is unlikely to be defeated owing to how far along it is in the legislative process, the possibility for a defeat does still remain.

There are two particular provisions that have been at the centre of the recent controversy, Articles 11 and 13.

Article 11, also known as the “link tax”, would essentially require internet companies to pay news outlets for hosting content on their platforms. This has been welcomed by some news corporations and it would clearly provide remuneration for the creators. However, there are concerns at the other end of the spectrum. It has been suggested that this requirement would force social media companies to pay news organisations to use as little as a few words or even a hyperlink from their news stories.

It seems that the European Parliamentary Draftsmen were attentive to the potential issue of social media companies having to pay for a small amount of content. These draftsmen have inserted a provision within Article 11 of the draft Directive to address the issue. An internal note within the European Parliament argues that publishing “insubstantial parts of a press publication should not be subjected to the normal rule” as explained above. However, there does not appear to be a clear-cut definition of “insubstantial”. The issue here is one of implementation: like many EU legislative provisions, different Member States may read the content of the Directive differently, therefore having a knock-on effect with the implementation of the Directive. The repercussions of this shortcoming remain to be seen and are, at this moment, purely hypothetical. It would not be surprising if a case were to reach the Court of Justice of the European Union (CJEU) on this matter, should there be no further amendment to include a basic definition.

The second provision, Article 13, has raised further issues within the Directive. Critics of the Directive have labelled this provision as the “meme killer”. Essentially, Article 13 would require web giants to automatically filter copyrighted material which is uploaded onto their respective platforms. This would include a wide spectrum of material including: songs, images and videos. There is an exception to this, namely that if the material has been specifically licensed, it will be exempt.

Many believe that Article 13 would be an excessive restriction on free speech, as found in Article 10 of the European Convention of Human Rights (ECHR). Due to this, Article 13 has been at the centre of a more furious debate as opposed to Article 11. Musicians, artists and authors have been in favour of the rule, whereas technology companies have issued a warning against its implications. There are also practical concerns as well as legal concerns. This includes the accidental blocking of non-copyrighted material. There would be a question as to what happens in these circumstances. This further adds to the concerns highlighted above. Additional issues arise in the form of "copyright trolls" and the closure of smaller websites which cannot afford expensive filter software to keep their platforms compliant.

If, hypothetically, a meme-saving clause were to be included (thus protecting the right to share material for parody purposes) issues would remain. There have been objections on the basis that AI-powered algorithms, which would carry out the filtering operation, would not be able to recognise memes, thus rendering the exception provision pointless. However, this has been rebutted by content creators, who have stated that they believe Article 13's impact is being exaggerated.

As above, the proposal does have to face another vote. It remains entirely possible that further amendments will be made to the body of the draft Directive. It is clear, however, that there are significant issues stemming from this legislation and serious questions remain. One would anticipate that these issues are addressed at a later stage by the European Parliament. Should these issues remain in practice, it is entirely possible that the EU will see a large wave of cases being brought before the Court of Justice of the European Union.

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