March 27, 2019

The European Union’s First Victory in the War on Memes

Sam Lane

On Tuesday, the European Parliament passed the Directive on Copyright in the Digital Single Market, a new set of digital copyright regulations that seeks to facilitate a more even distribution of online revenue between content creators and online platforms, by a margin of 348 in favor to 274 against, respectfully. This directive was heavily opposed by internet giants like Google and Facebook, and has the potential to fundamentally change how technology firms collect revenue and operate in the European Union.

While, in theory, enforcing copyright law and ensuring that content creators are adequately compensated for their work seems straightforward, in practice, protection and enforcement has proven challenging in the age of viral content and massive digital advertising. Past efforts at regulation have often led to overly vague or unflinchingly rigid statues, due to the inherent difficulties regulating an industry that innovates on a seemingly daily basis and frequently invents new streams of revenue. This directive has proven to be controversial, and two provisions in particular – commonly referred to as Articles 11 and 13, but renumbered in the final text – have been the most contentious, and the subject of an unusually intense lobbying battle in Europe.

Article 13, pejoratively referred to as the “Meme Ban”, is easily the most controversial provision of the directive, and is designed to assist copyright holders in collecting licensing fees from tech firms that host their content. Proponents of Article 13, such as record labels, authors, journalist, and collecting societies, argued that the burden of policing user uploaded content should fall to the platform itself, not the user, and Article 13 takes this logic to its natural conclusion by making content distributors responsible for all illegally uploaded content on their websites, regardless of who uploads it. Because the sheer amount of content on these platforms is simply too much for any person or team to monitor successfully, tech firms will now be forced to employ upload filters – algorithms that determine whether uploaded content is copyrighted or not – to police their content. Article 13 does not specifically require upload filters, but complying with the new regulations without them is technically unfeasible, and critics argue that their widespread use will have unintended consequences and prove overly burdensome.

Facebook and YouTube already use a version of these filters, but they are still far from advanced enough to distinguish between protected and exempted content. For example, content used for protest, parody, satire, or educational purposes is exempted from copyright law, which can be a difficult and often nuanced distinction that a filter will not necessarily be able to detect. These filters have a checkered record of success, and, in the past, have confused and flagged videos of cats purring and birds chirping for violations of international copyright law. It is unlikely that most future copyright disputes will involve fowls or felines, but tech giants have cautioned that they will be forced to air on the side of blocking content when disputes arise until they ensure that material is not copyrighted. It is also not hard to see this regulation having a larger effect on smaller firms and startups, as they are less likely to be able to afford effective content filters or to sign licensing deals with major record labels to host their content.

Although not quite as controversial, Article 11, known as the “link tax”, has also faced it fair share of criticism, and has been largely supported by European news organizations looking to share revenue with news aggregating services, such as Google News and Facebook. Article 11 attempts to force aggregators that automatically summarize and link to news websites to pay for any article they link to, and guarantee news producers the exclusive right to “the online use of their press publications by information society service providers.” Interestingly, Article 11 neglects to further define this right, leaving questions over how it will be enforced, and does not outright ban news scraping. Critics fear that these fees may eventually apply to all internet users that link to news articles, inadvertently creating a “tax” on online hyperlinks.

Now that the European Parliament has passed the directive, it is headed to European Council, where it is expected to pass in its current form in early April. If passed, EU member states will have up to two years to take this broad directive, reconcile the differences between interested domestic parties, and implement it into law. For tech giants and content producers, the final phase of implementation will be the most important, as it will provide the clearest guidelines for compliance, and will vary in degree from country to country.

This directive has been hailed as major victory in copyright law by its proponents, while many of its detractors have described it as the first step to a less free and creative internet. The truth likely lies somewhere in between, but there is no doubt that this fight promises to be the first in many coming battles over the ownership and monetization of online content.