Over the past week or so, you may have seen headlines warning that the European Union is about to “ban memes and GIFs” and harm free speech. Some say that this new copyright reform could seriously damage—or even break—the internet. Users’ freedoms would be significantly limited, and the risk of legal liability for creators and users alike would increase exponentially because of the reform. According to Julia Reda, a member of the European Parliament, the EU “is putting corporate profits over freedom of speech and abandoning long-standing principles that made the internet what it is today.”
At the root of all this are two new provisions that the EU is considering: one that would give publishers more power to say who can use their content (including linking to it), and one that would make platforms more liable for copyright violations. There are good reasons to be worried about what these two articles will mean, if they are adopted. However, it is a mistake to think that they would dramatically change the internet as we know it. Instead, they would progress along the same lines of copyright evolution in Europe over the past several years. In this sense, they are more a natural evolution than a drastic change. EU lawmakers, as well as the judiciary, have indeed been walking this path for a long time—a path that has progressively expanded the scope of copyright protection and owners’ rights.
Since the early 1990s, the EU has adopted a number of legislative texts (mostly in the form of directives—legislation that countries themselves can implement as they wish so long as they achieve the relevant objectives) with the primary goal of supporting the free movement of copyrighted content across the EU internal market. (For example, different durations of copyright protection across different countries used to create challenges.) At the same time, the EU has increasingly been concerned with making its copyright system more modern and more competitive as a whole, to attract investments in the continent.
These efforts became more intense in 2015, when the European Commission launched a Digital Single Market strategy to overhaul e-commerce, enforcement, and copyright rules. The underlying idea was that without copyright reform, the EU would never develop its full potential as an integrated digital single market. Breaking down national silos in these areas has therefore become a priority. The following year, the commission issued its proposal for a new directive on copyright in the Digital Single Market. The directive contains a wide range of provisions that include new mandatory copyright exceptions, fairness in authors’ and performers’ contracts, and everything in between.
Of these provisions, two have arguably elicited the most heated discussions. The first is Article 11, called by some the “link tax” but technically known as the “press publishers’ right,” which would give newspaper publishers greater control over the digital use of their content, potentially including linking to such content under some circumstances. For instance, Google News would need to obtain the permission of relevant newspapers to link to their websites and display snippets of news content.
The second is Article 13, the “value gap” proposal, dubbed by some the “censorship machine.” Article 13 would require hosting platforms that give access to user-uploaded content to get a license from relevant rights holders and prevent the availability of infringing material. The result would be that uploading a video of your child dancing to a hit song might be impossible. A platform that allows you to do so would need to have a license—otherwise, the site would be liable for copyright infringement. Although the latest version of the directive does not mention filters, some fear that implementing algorithmic filters would be the only way for platforms to shield themselves from liability.
After the commission issued the directive in 2016, the EU member states (gathered in the council) and the European Parliament held their own debates to decide whether to adopt the directive and what it would include. The council adopted its own mandate a few months ago, while the parliament—following an initial thumbs-down vote back in June this year—adopted its own version last week. The next step will be for the council, the parliament, and the commission to reconcile their different versions. As things currently stand, we do not yet know what the final text of the directive will be, but it seems highly likely that it will contain both a “press publishers’ right” and the “value gap” provision. Although stakeholders became very vocal about these provisions as soon as the commission issued its proposal back in 2016, these have now become mainstream, especially out of fear that their adoption would radically change our online daily activities. Marietje Schaake, a member of the European Parliament, thinks that endorsing the reform is a disastrous result for the protection of our fundamental rights and ordinary internet users.
The concerns are correct: If these provisions are implemented, they could have an impact on the amount of content that is actually available online. But Europe has been heading in this direction over the past several years.
Take linking and Article 11. This would not actually be a huge change: The highest EU court has already ruled on a number of occasions that unauthorized linking to protected content might expose one to liability. Under EU copyright, the core idea is that exclusive rights should be granted a “high level of protection.” Copying just a few words might be a copyright breach, and merely putting TV sets in hotel rooms or spas requires a license. That is true also with regard to rights holders’ ability to object to or control certain acts of linking to their content. The law already requires any business that links to copyrighted content, including the website of a newspaper, to make sure the content linked to is and remains legal, in order to not be exposed to liability. However, the new article might require businesses to secure a license before displaying titles of news articles and relevant snippets.
Critics of Article 13 say that this “value gap” provision will make it impossible to share content that is legal, including memes and GIFs, because of the flawed nature of the algorithmic filters that platforms would likely have to use to comply with the law. An automated filtering system might return false positives and unduly block content that should be allowed instead. Automated filters might be unable to identify and allow legal uses of protected content, including parodies and quotations, the latter being for instance a case of user creativity like memes and GIFs. In the U.S., the law provides for a fair-use doctrine, but in Europe, even the making of a meme or a GIF is already a bit risky because of different legal approaches. All EU countries have closed lists of available copyright exceptions. In Europe, if you want to make a GIF from, say, Crazy Rich Asians, you first need to identify whether the law would allow that by means of a relevant exception, and then, if you find this exception, you need to check that all legal conditions are also satisfied. So French law requires that a quotation be justified by the critical, polemic, educational, scientific, or informational character of the work into which it is incorporated. That’s not usually the case with memes and GIFs. Italian law is not more generous: It only allows the online free publication of low-resolution or degraded images when this is for educational or scientific uses and only where such use is noncommercial. Can memes and GIFs be regarded as educational or scientific uses of protected works? Perhaps, but this might be difficult to argue successfully in the (admittedly remote but not impossible) event that litigation is brought forward.
Finally, Article 13 has been criticized for moving from the assumption that hosting platforms may not (or no longer) be regarded as neutral hosts that are shielded from liability for users’ illegal activities under the EU equivalent of the U.S. Digital Millennium Copyright Act’s safe harbors. Safe harbors are a legal insulation that is given to platforms and limits their liability for users’ illegal activities as long as certain conditions are satisfied. Whether or not platforms in the EU may be considered liable for users illegally making copyrighted content available is not entirely certain. Last year, the Court of Justice of the European Union ruled that the operators of The Pirate Bay would be directly liable for providing links to torrent sites from which users could download copyrighted content unlawfully. The court suggested that this might be also true of other platforms that index, categorize, or delete content, or perform filtering activities—no matter how these are done. Last week, the top court in Germany referred a new case to the CJEU, asking to clarify whether YouTube would be directly liable for making available infringing content uploaded by users under existing EU law.
So what now? If Europeans wish to push back against Article 11 and Article 13, they need to prepare to radically change copyright law, including an overall rethinking of its foundations and approach. Nothing like that, however, seems to lie on the horizon at the moment. The next steps will be in fact a discussion of the text of the directive, which, once adopted, will need to be implemented by individual EU countries within a time frame that is usually two years. So … gather ye memes while you may.