Copyfacts: What this whole “Save the Meme” is really about and the lack of ‘Fair Use’ in EU copyright
How is copyright reform going to ban our memes? Why? How? Isn’t it legal? Isn’t it fair use? Isn’t it quotations? Isn’t it covered by all those exceptions listed in the 2001 copyright directive? Even the European Commission’s media team doesn’t seem to have a proper understanding of the issue at hand.
First of all, there is no such thing as fair use in the EU. The Fair Use doctrine is a US term and is not applicable for the EU.
The EU copyright law gives member states the option to pick and choose from a list of optional exceptions or limitations on some grounds, such as education, quoting, or for parody. However, that does not mean that the member states implement any of those exceptions or limitations, just that they are allowed to. The 28 member states have very different interpretation and understanding on under what circumstances and how you can use copyrighted material according to those exceptions. This isn’t harmonized.
Saying that memes will not be banned because the infosoc directive has a list of optional exceptions and limitations for pastiche and quotations is in the best case highly misleading.
There was no freedom of parody in the UK until 2014. Before that, all those sweet memes based on previously copyrighted material, such as Boromir’s ‘One does not simply walk into Mordor’ or Fry’s squinty eyes wouldn’t have been covered by a freedom of parody exception.
In Germany, the quotation exception certainly doesn’t cover it, because it’s not in the context of criticising the work you’re quoting. For example, a grumpy cat meme is not a comment on the artistic quality of the original grumpy cat picture, so it’s not a quote. And Germany doesn’t have a parody exception.
France, however, despite its reputation for very conservative and strict copyright laws have had a parody exception for a long time now. In 2013, a Meme would’ve been covered by a parody exception in France (maybe), but not in the UK or Germany.
And how is the new copyright reform going to change that?
It won’t change the legal status of parody and pastiche nor harmonize it in the EU. That was rejected early on in the debate. Memes are illegal in some countries, such as Germany, but can be legal in others, such as France and the UK (provided that they fulfill the criteria to fall within the scope of the parody exception), and that’s not going to change with the copyright reform.
However, the concern is that with article 13 of the directive, there will be a requirement for webpages that provide access to user uploaded content, such as reddit or Youtube, to conclude licensing agreements with all right holders, alternatively prevent the availability of the content that’s uploaded. This can be done by either:
a) Manually checking each upload before it becomes publicly available;
b) Upload filters;
Do you know how GEMA is making YouTube Geoblock videos in Germany? Or how some content on Netflix is available in your country, but not on your ski-holiday resort in Austria? Or that Audible book isn’t available, but you can go the shop and buy it paperback?
Well, that’s because the right holder organizations don’t have an agreement with those services. Article 13 goes even farther than that: In order to be on the right side of the law, the service that provides access to user uploaded data needs to have a licensing agreement with the right holder or, alternatively, make sure users cannot upload their content. And notice, that that between the countries in the EU, there can be different right holder, which means that the services, be it Netflix or Youtube, have to conclude an agreement with all of them.
In the case of Germany, in order for a forum, such as Reddit, to comply with the German law it would be required to have a licensing agreement with the rights holder of Futurama in Germany. In the absence of a license, memes based on Futurama would be illegal in Germany because there is no parody exception and memes do not fulfill the criteria of being a quote, hence it will be illegal. And not only illegal, but Reddit or your local forum would be required to prevent the availability of that Meme.
There is nothing that says that the right holder needs to grant a licensing agreement. If they don’t want their content on Reddit or YouTube, those services will be obliged to prevent the availability of their content there.
Does this explicitly mean an ‘upload filter’? No, not directly. Indeed, the Commission draft mentioned ‘content recognition technologies’ and previous drafts of Mr. Voss was more direct towards ‘to prevent the availability’ of the copyright infringing content. However, the recitals of the text adopted by the legal affairs committee still speak of “implementing effective technologies”. And the text makes platforms directly liable for every single copyright infringement their users commit.
Because platforms won’t be able to get a license for every single copyrighted work in the world, they won’t have any other option to limit their liability than to install upload filters. UN special rapporteur on freedom of expression said about the slightly different Council text:
“Article 13 of the proposed directive appears likely to incentivize content-sharing providers to restrict at the point of upload user-generated content that is perfectly legitimate and lawful”
in his letter to the Commission and addresses several issues with article 13 which he wishes to get a written response on within 60 days.
Memes are just one of many examples of how article 13 can produce chilling effects on freedom of expression
In France, you’ll maybe be able to claim a parody exception on your uploaded meme, but not in Germany, and the online content sharing service providers will need to adhere to that. Also, your national social media platform, such as the Polish Wykop, will also be required to follow this. It’s not only going to affect the big multinationals, but also the smaller ones, the local ones. This doesn’t only apply to memes — but all content that can be copyrighted or derived from copyrighted works.