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Memes Saved: Copyright Directive

For two weeks in a row, the supporters of the free Internet were going above and beyond. They signed petitions, made an uproar in the media, caused the outrage on Facebook, etc. As a result, they succeeded in taming the dangerously incompetent lawmakers, at least for now. The European Parliament rejected the Copyright Directive proposal. That’s why the article we’ve been working on is temporarily off the table. At least, until the dangerously incompetent people produce their next brilliant ideas.

Weare perfectly aware that neither of us is G. Orwell. Still, we tried to imagine the world where the European Parliament had voted for the new Copyright Directive. So, here is our dystopia.

Once Upon a Time in the EU

Every single day we come across thousands of re-posts on Facebook and Twitter linking to original texts. We can see a headline and a snippet of the original content below. The Copyright Directive Proposal (Article 11) contains the requirement, according to which platforms like Twitter and Facebook will have to obtain licenses from publishers, such as The Guardian (that is, to pay the “link tax”) before quoting anything from their articles.

Each EU member state will decide what exactly is going to be licensed, even though the new Copyright Directive was actually intended to create the single digital market and unify the regulatory framework.

The German government has earlier proposed to collect fees from any quoting, whether or not it contains any original author’s opinions or ideas. In this case, you will be forced to buy a license even if you want to quote something like “Controversial copyright law rejected by EU parliament”. And who cares if this headline is only a statement of fact.

According to the European Copyright Society, Article 11 will make it difficult for small and new media to enter the market. Spain and Germany already tested some similar regulations. As a result, small publishers lost their readers. For platforms, it did not pay to work with them.

At some point, the lawmakers decided to relax the proposed regulation (it’s hard to say who we have to thank for it – public activists or magicians). On June 29, the European Parliament Legal Affairs Committee proposed the amendments, according to which platforms will not be charged in case individual Facebook or Twitter users use content for non-commercial purposes. And what if it is a commercial re-post? How is Facebook supposed to know the exact list of business activities some wherever-based independent contractor is entitled to conduct?

End of Memes

And not only memes. End of parodies, adaptations, and anything ironic or sarcastic. That’s exactly what Article 13 of the Directive proposal intends to do. No wonder it caused a greater buzz online than the complete GDPR text.

Aiming to prevent copyright infringements, Article 13 requires online platforms to monitor user activity by applying control systems that automatically filter and block user content.

But wait,  YouTube has already been doing this! That’s right. With Content ID, content owners can check the content database and decide what to do if their copyright has been infringed. They can block the content or monetize by running ads against it. The Copyright Directive proposal offers a completely different solution – it requires online platforms to monitor the content.

In certain cases, you can use someone else’s intellectual property without breaking the law. In the USA, it falls within the fair use doctrine. In the EU, the current Copyright Directive allows to legitimately use someone else’s intellectual property for educational or scientific purposes; criticism or review; caricature or parody. If a new Copyright Directive comes into force, online platforms will have to weigh up all the risks before taking any responsibility for their users’ creativity and investing a good deal of their income into automated content filtering systems.

It appears that small market players like startups will not be able to afford content filtering. What if Facebook or Twitter don’t get someone’s irony, fail to like someone’s meme, and (because no technology is perfect) delete some perfectly legitimate content. The user, whose content has been deleted, will have to prove that this content does not infringe any copyright.

Microsoft Buying GitHub. Was it a Smart Move?

The initial Copyright Directive proposal did not contain the term “platform”. That’s why even GitHub fell within the scope of Article 13. Later on, the European Parliament Committee on Legal Affairs added the term “online content sharing service providers” clearly stating that such providers do not include open-source software platforms. That’s how GitHub was rescued.

July 5, 2018, the European Parliament rescued everyone else by rejecting the Copyright Directive proposal and sending it back to the Commission. Now the Internet throughout the EU can enjoy some peace until September when the European Parliament is going to vote on the copyright reform.


The full article by Marichka Kokovska and Kateryna Nalyvaiko was originally posted at Axon Partners blog. We present you the edited version of the piece contributed by the authors.

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