Your Memes May Soon Disappear
November 27, 2018 – Alec Blalock
I spoken at length many times about copyright law, and I just wanted to take some time to explain some things happening right now overseas that could have massive ramifications here in the states that, if you run a business and have a presence online, use memes, or just even enjoy online videos, could affect you. If you’re reading this, chances are you live in the United States and haven’t heard of the EU’s proposed Article 13 that’s coming close to being law all across Europe (even in the UK despite the whole Brexit thing). So, this is meant to break down what exactly Article 13 is, why it’s happening, and how it could affect you.
What’s Article 13?
Article 13 is a proposed EU directive that if passed, would be a new copyright directive to companies, specifically giants like YouTube and Facebook, to do as much as they can to stop the spread of copyrighted materials on their platforms.
Doesn’t something like that already exist?
Yes and no. Copyright infringement exists and has absolutely been a thing, but with the rise of the digital age, copyright infringement and piracy has been made easier and more accessible. This is meant to catch European copyright law up to the modern age.
So, what’s the difference?
Basically, before we put it on the copyright holders to enforce the rules themselves, by suing copyright infringers. Article 13 would shift that burden onto the platform holders like Facebook and YouTube. The platform holder would essentially be responsible for their users copyright infringement.
How do platform holders currently handle their users committing copyright infringement?
In the US there is a substantial piece of legislation called the Digital Millennium Copyright Act (DMCA). Due to the sheer vast amount of people using the internet, the US currently recognizes that platform holders cannot possibly screen all content posted on their platforms and understand that some users may commit copyright infringement. However, platform holders must comply with copyright holders in removing content that infringes on their copyright. Ever hear of a DMCA takedown? YouTube also uses things like content ID or copyright strikes to be DMCA compliant. Under the DMCA, platform holders cannot be held liable but must assist in taking down copyright infringement. This is called the DCMA Safe Harbor provision. The EU currently has no safe harbor provision nor does it have any major copyright legislation in the modern era. However, platform holders hosted in Europe still follow the DMCA since major tech companies that span every modern nation tend to follow the most stringent laws just to be safe.
So, what’s the big deal?
Well the big deal is that companies would have to alter their business drastically, and the language of the law. Under the DMCA, all content can technically appear on all platforms, with those that copyright infringes being taken down after the fact. Under Article 13, the copyrighted material should, theoretically, never be uploaded in the first place. The most troubling language of Article 13 reads as, “online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorized protected works or other subject matter are not available on their services.” That’s pretty vague as to what that actually means. Specifically, no one knows how platforms are expected to remove the content. The common idea being thrown around, having even appeared in early drafts of Article 13, would be to have these platforms use automatic filtering systems that would scan everything that’s submitted to be uploaded on the platform. Generally, because since Facebook and YouTube have millions of users, an automated system would feasibly be the only solution to comply with Article 13. That’s not only a huge undertaking it’s also potentially a costly one and could put some content creators out of a job.
How could this put people out of a job?
Believe it or not there are many people that make a living online, whether it’s streaming themselves playing Fortnite on Twitch or making videos on YouTube, and many of them use copyrighted images or video clips in their streams or videos. Article 13 has earned an infamous nickname of “meme ban”, because although memes are generally agreed to be parody (which would be protected by copyright law), an automated system likely could not make that distinction. Likewise, with content creators using video clips or GIFs they rely on the fair use, which states that there are certain uses (educational or criticism for example) of copyrighted material that do not require permission from the copyright holder. However, since fair use is a defense and taken on a case by case basis, an automated system cannot distinguish what is and isn’t fair use. This means, if Article 13 were to pass, many YouTubers and other content creators on other platforms couldn’t show their stuff in Europe.
How can this affect me in the US?
Anything else we should know about?
Yes, along with Article 13 there is also other proposed legislation on the floor of the EU. Article 11 has been lovingly called the “link tax” which states that publications “may obtain fair and proportionate renumeration for the digital use of their press publications by information society providers.” Again, wonderfully vague language and no one really knows how this would work either, but basically posting a link to a press article would mean you have to pay them for it. There are exemptions for personal and non-commercial use, but no one knows where the line is drawn. For example, would Wendy’s have to pay for posting a link on their Twitter page? What about a private person with a larger following than Wendy’s? But if you have a company or business that may be subject to these laws, you need someone who’s up to date with the ever-changing laws on internet regulation. An attorney can help guide you through the wilderness and help you do what you need to do to keep running.