The New EU Directive: Is This Truly the End of Memes?
Last month, Members of the European Parliament adopted a new Copyright Directive Proposal.[1] The Directive ignited a fierce debate. Internet Tycoons, like World Wide Web inventor Tim Berners-Lee and Wikipedia Founder Jimmy Wales, fiercely opposed the new legislation, while entertainment moguls, such as Paul McCartney and DJ David Guetta, voiced their support for the new legislation.[2] The Directive also spurred, what the bureaucrats in the European Commission declared, an “astonishing” amount of money spent in lobbying.[3]
Article 11 requires content-aggregation sites, like Google and Facebook, to obtain a license from a news publisher, before displaying the snippets of news to site users.[4] This section of the Directive challenges large websites’ profit-garnering practice of selling advertisement space next to popular, eye-grabbing content.[5] Advocates argue that creators of this eye-grabbing content should receive a piece of the revenues their work creates for large tech firms.[6] Critics argue that this requirement is akin to creating a “link tax.”[7]
Article 13 shifts the burden of arranging a copyright agreement from the content-producing copyright holder to large tech firms.[8] This change will cause a firm, like Twitter or Instagram, to ensure that a copyright either doesn’t exist or is licensed through an agreement prior to the content being shared.[9] An e-mail written by YouTube representatives, regarding Article 13, stated, “For both European creators and consumers, it’s vital to preserve the principles of… sharing and creativity…”.[10]. Critics raised concerns that tech firms will have to use an automated content filtering system to prevent the distribution of copyrighted materials, and this will lead to too much censorship.[11] There is particular concern over the censorship of parody content – like memes – whose use of copyrighted materials has historically been permitted by the fair-use doctrine. .[12] Proponents of the Directive say this fear is unsubstantiated.[13]Axel Voss, a Member of the European Parliament from Germany and proponent of the new directive, has assured that “the proposal for Art. 13 is only clarifying that active (copyright-infringing) platforms are liable… it is totally not hindering rightsholders or smaller creators to give and to show their works for free!”. [14]
The purpose of the directive is to redirect the lost revenues of media companies, musicians and photographers work as a result of digital platforms content distribution.[15] Before enactment, the EU will engage in “trilogues.”[16] Triologues are usually closed-door negotiations between various leaders of the European government that can lead to Directive alterations with a low probability of a second Parliamentary debate.[17] Julia Reda, a German Member of the European Parliament who led the opposition to Articles 11 and 13, is committed to publishing the negotiating documents during the course of the Trilogues.[18] In order to balance the various concern of critics and advocates, questions such as what types of quotations require a licensing under Article 11, whether there are safe-harbor carve outs for users, or if news giants can create potentially harmful exclusive license agreements need to be answered during this time.[19] Once answered, interested parties will be able to better predict the full host of potential effects from this newly adopted Directive.[20]
Footnotes
