Sunday, 15 July 2018

You Wouldn’t Steal a Meme: The Threat from Article 13

The computer experts are unanimous. The only way to implement Article 13‘s requirements is through a general filter of every user upload. The fact that the word “filter” is studiously avoided in the Copyright Directive’s text makes no difference to this unavoidable fact of digital life. After all, how would it be possible to make sure that no uploaded file contains copyright material unless every one were checked beforehand? The volume of uploads for major platforms is such that manual inspection is out of the question, which means filtering has to be automated. Since that is now clear to (almost) everyone, the argument around Article 13 has moved on to the practical implications of requiring top sites to install censorship machines for user-uploaded content.

One class of material particularly at risk involves memes. These are often topical ideas that take pre-existing texts, music, images, and videos, and use them with varying degrees of cleverness to make a witty comment or a political point. The vast majority of memes are likely to be blocked by Article 13’s upload filters, since a key feature of them is the use and subversion of other copyright material.

Few would argue that annihilating the Internet’s meme culture would be a good thing – memes may vary in their tastefulness, but they are undeniably a powerful and characteristic expression of 21st-century creativity. As a result, defenders of Article 13’s blanket filters have been forced to take another tack. Now, the argument is that memes won’t be caught by upload filters, because they are covered by exceptions to copyright that allow precisely this kind of parodic use. But there are a number of serious flaws in this line of reasoning.

First, it is not true that memes are covered by exceptions to copyright across the whole of the EU, an important fact the European Commission seems unaware of. There is no blanket “fair use” doctrine, as in the US, that would create a presumption that memes are to be excluded from filtering. Instead, Article 5 of the 2001 Directive on the “harmonisation of certain aspects of copyright and related rights in the information society” says that “Member States may provide for exceptions or limitations”, including “for the purpose of caricature, parody or pastiche”. Potentially, that would seem to cover memes.

However, the crucial word here is “may”: Member States have the option, but not the obligation, to grant an exception for uses that include memes. Only a minority of EU countries have taken advantage of that freedom. Germany and eighteen other Member States still have no parody exception, and thus none for memes either.

What this will mean in practice is that Article 13’s upload filters would need to encapsulate local laws when it comes to deciding whether or not to block material across the EU. And it’s not just local laws. A ruling by the EU’s highest court suggested that local standards of taste were also a factor in determining whether a parody was a legitimate use of copyright material. EU-wide upload filters already face an incredibly challenging task of deciding when material is covered by one of the existing exceptions to copyright, something that even courts struggle with. Add in the requirement that account must also be taken of local laws and sensibilities, and the job of implementing this correctly becomes impossible.

It is clear what is likely to happen. Because of the legal risks of not doing so, companies using upload filters will always err on the side of caution, and pro-actively block anything that might conceivably be infringing. As a result of the different rules in different Member States, the easiest option will be to apply the harshest national constraints across the whole of the EU, which means blocking all parodies and memes if they use any existing copyright material.

That situation will inevitably lead to huge quantities of perfectly legal material being censored. In the US, memes are frequent targets of takedown notices under the Digital Millennium Copyright Act. Existing upload filters already overblock, sometimes removing entire YouTube channels in error. In Germany, a video created by the feminist organisation Pinkstinks was blocked by Google’s ContentID filter for an alleged copyright infringement of material from the broadcaster RTL. In fact, it was not Pinkstinks who used content from RTL, but RTL who had used the organisation’s content in a broadcast without noting the source. The ContentID system assumed that Pinkstinks, not RTL, was in the wrong, and incorrectly blocked legal material. With Article 13 in place, assumptions that uploaders are guilty until proven innocent will become the rule.

Supporters of Article 13 insist that this, too, isn’t really a problem, because the online services will be obliged by the Copyright Directive to put back material that is wrongly blocked in this way. Once again, this reasoning is fallacious. The Pinkstinks experience demonstrates why that is the case. The video in question was part of a campaign by the organisation, and much of its impact depended on being timely. Even though the video was put back after eight hours, a crucial window for influencing people had been lost. This is a general problem, because memes are often extremely topical, and short-lived. They frequently refer to events in today’s news, and without that context, lose much of their power and point. Unblocking this kind of material after hours or days of invisibility may mean that it falls completely flat, or even is irrelevant. For many memes, time is of the essence.

Even for those memes with a longer shelf-life, the fact that people will need to challenge the blocking of their uploaded material will have a chilling effect on the whole culture. One of the great strengths of memes is that they can easily created by ordinary people, with no need for complex technical resources or prior artistic skill. Memes are the ultimate in democratic art. But members of the public are precisely those who are least likely to know how to challenge upload filter blocks, or even to be aware that this is possible.

Many will simply accept the result of the upload filtering, either because they don’t know that they can challenge it, or they don’t have the time and energy to do so. They may be so disheartened to find their attempts at memes are blocked repeatedly that they give up crafting them. The overall result will be an impoverishment of what can be considered an important new digital folk art. The Internet in the EU will be the poorer for it, and freedom of expression of European citizens will be seriously curtailed.

Breezy claims that Article 13 will not affect the Internet’s meme culture are untrue. There is no blanket exemption across the EU for meme-like material. Even where the exemption exists, implementing faithfully the local laws and standards in upload filters will be impossible. This will lead to overblocking of legal material. The much-vaunted “safety clause” is illusory. Most people will be unable or unwilling to go through the daunting process of appealing against the blocking of their creations. And for the few that are determined to get their material online, the delay in posting their memes may mean that they lose most or even all of their force.

The harm it will cause to memes is not the only reason to remove Article 13 from the Copyright Directive – many other domains will be adversely affected, as CopyBuzz has previously noted – but it is certainly a very good one.

Featured image based on video by エルエルLL.

Writer (Rebel Code), journalist, blogger. on openness, the commons, copyright, patents and digital rights.