The New EU Directive: Is This Truly the End of Memes? - Fordham Intellectual Property, Media & Entertainment Law Journal
25064
post-template-default,single,single-post,postid-25064,single-format-standard,ajax_fade,page_not_loaded,,select-theme-ver-3.3,wpb-js-composer js-comp-ver-5.5.5,vc_responsive
 

The New EU Directive: Is This Truly the End of Memes?

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.13Axel 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


  1. Cory Doctorow, What’s Next for Europe’s Internet Censorship Plan?, EFF (Oc. 7, 2018), https://www.eff.org/deeplinks/2018/10/whats-next-europes-internet-censorship-plan-0.[https://perma.cc/BD6E-JZDQ]

  2. Ryan Browne, Europe is voting on a controversial law that could force Google, Facebook to block copyrighted content, CNBC (Sep. 13, 2018, 1:03 AM), https://www.cnbc.com/2018/09/12/article-13-eu-parliament-votes-on-digital-copyright-law.html.[https://perma.cc/RA3K-75MP]

  3. Andrew Spicer, Why you might have to give up your memes, CNN (Sep. 14,  2018, 5:47 PM), https://www.cnn.com/2018/09/14/opinions/why-you-might-have-to-give-up-your-memes-spicer/index.html.[https://perma.cc/HE2E-BCLQ][/foonote] The greatest source of dissidence came from Article 11 and 13.[footnote]Id.

  4. A controversial new copyright law moves a step closer to approval, Economist ( Sep. 13, 2018), https://www.economist.com/business/2018/09/13/a-controversial-new-copyright-law-moves-a-step-closer-to-approval.[https://perma.cc/4PJC-J9FV]

  5. Spicer, supra note 3.

  6. Id.

  7. Id.

  8. Id..

  9. Id.

  10. Browne, supra note 2.

  11. Id.

  12. Id.

  13. Id.

  14. Axel Voss (@AxelVossMdEP), Twitter (Aug. 31, 2018, 10:13 PM), https://twitter.com/axelvossmdep/status/1035757479639044097?lang=en.[https://perma.cc/HW4C-9JTN]

  15. Browne, supra note 2.

  16. Doctorow, supra note 1.

  17. Id.

  18. Id.

  19. Id.

  20. Id.

Dana Levin

Dana is a second-year J.D. candidate at Fordham University School of Law. She is a staff member of the Intellectual Property, Media & Entertainment Law Journal and an Admissions Ambassador at Fordham. Dana holds a B.A. in Psychology and Education Policy from Brandeis University.