Article 13 of the EU Copyright Directive – A “War on Memes”?
June 28, 2018
The European Commission has been pushing forward proposals for a new law which could significantly limit the use of copyrighted material online. The proposed law is part of a larger set of reforms aimed at creating a Digital Single Market in the EU.
Article 13 of the draft Directive on Copyright in the Digital Single Market – approved by the European Parliament on 20 June – has come under particular scrutiny due to its potential impact on freedom of speech. The law would require websites to monitor all content (including that which is user-generated) and “take measures to ensure the functioning of agreements concluded with rightholders”. Such measures may well mean the implementation of strict copyright checks – such as content recognition and automatic filtering technologies – across social media platforms such as Facebook and Reddit.
Various media sources have decried the outlawing of memes as a potential effect of the new law on social media. Memes can be created by anyone and frequently employ either text, images or videos extracted from copyrighted material which is then deployed in the context of a contemporary problem or issue. Memes have become ubiquitous across social media platforms and are used, for instance, as powerful political satire: after all, an image can vividly express something either without, or using fewer, words. Under the new Article 13, the individual whose original copyright material it is may have grounds for complaint against a social media platform that allows it to be used without his or her permission.
The new law has already sparked a lively debate, with many high-profile figures such as World Wide Web inventor Tim Berners-Lee and Wikipedia co-founder Jimmy Wales signing an open letter to the European Parliament. They argue that Article 13 presents an “imminent threat” to the future of the internet and potentially violates the European Charter of Fundamental Rights. UN Special Rapporteur and UCI law professor David Kaye also argues that the law would violate the freedom of speech, while also acknowledging the need for regulation and copyright protection.
In Article 13 the EU has crafted an ambitious legislative agenda for the Internet. The real test will be the interpretation of what constitute appropriate measures to protect rightholders, and how these measures will be implemented across the entire spectrum of social media platforms, from tech giants to SMEs and start-ups.