Sunday, 14 July 2024

When Lies are Told…or How the Meme Illustration Shows its Merits

As one would expect, the intense coverage by serious news outlets of the dangers of the Copyright Directive over the past weeks, with the ‘threat to the meme’ as tagline exemplifying the fact that Article 13 has a far reaching impact stretching into the absurd, has triggered the rightholders camp to spread out their own version of the ‘legal status’ of memes under Article 13. Kudos to the fact that they used an infographic and to the creativity they displayed in dismantling everything everyone ever said about Article 13. Such great effort certainly merits some scrutiny on our part.


The best way to influence a discussion is to put the conclusion you want your reader to reach at the top. In this case, the conclusion this graphic is aiming for, is to disprove everything academics and experts have written so far and to lure you into believing ‘everything will be fine’ in an EU that adopts Article 13. In the process, it nicely highlights that memes can consist of images, videos of excerpts of texts, which is not unimportant, as we will see further down.
So memes are ok because there are exceptions on parody and quotation that would cover them?

  • The exceptions mentioned as safeguards are voluntary in each Member State. As a result: they have in some cases not been transposed at all, and in others transposed in very different ways.
  • For example, the parody exception was only transposed in the UK in 2014 and is still not transposed properly in many Member States (even if some can rely on freedom of speech to protect some forms of parody). Its interpretation also varies from country to country (is political parody ok or not? Should it be funny? – cf. CJEU Deckmyn case). The depth of the mess in interpreting the parody exception was beautifully summarized in four tweets by the European Commission: read them and weep.
  • Similarly, the quotation exception has been implemented in varied ways from one Member State to another, as it is limited to text in many countries (i.e. not audio or audiovisual), and in some countries limited in scope (e.g. in Germany, quotations are only allowed if done in the context of commenting or criticizing what you quote, e.g. in a research paper or a blog on a given subject, not for memes). Not unimportant considering the variety of formats memes can come under.

This means that memes are often already illegal in many EU Member States currently, but that this has not lead to massive enforcement by rightholders under the current notice & take down procedure set in place by the e-Commerce Directive. There have been quite some take downs in the US however under the Digital Millenium Copyright Act, some of which are listed here.

But look: the good news is that only a few platforms will be covered…

Oh, wait a minute: doesn’t that contradict the fact that even the Rapporteur MEP Axel Voss admitted that he had no clue which platform will actually fall under this Article? And isn’t the extent of the scope illustrated by the continuous addition of half-defined carve outs they have been continuously adding (e.g. encyclopedia because not Wikipedia; online retailers because not eBay; open source platforms because not Github…oh wait they’re not all open source…hmmm).

And then we haven’t even talked about entrusting all of this to blind algorithms, that block anything that looks like existing works or other subject matters.
The claims that there is a ‘safety clause’ and that platforms will have to reinstate content that was wrongfully blocked forgets to explain how complex and uncertain this procedure will be for the users. Moreover, it neglects the fact that the majority of the users will not be aware of their rights, and will thus not ask for their content to reinstated in the first place, or simply won’t bother and will stop sharing that type of content. My teenagers at home would certainly not bother!
It also ignores the fact that there is a risk of losing the momentum for your content. A good illustration can be found in this Zeit Online article, which writes about the case of the feminist organization Pinkstinks: one of their videos was automatically suspended by ContentID for an alleged copyright infringement of material from RTL, even though it was not Pinkstinks who had used content from RTL, but RTL who actually used their content in a broadcast without marking the source. The video, which was a crucial part of a recent campaign by Pinkstinks, was offline for 8 hours due to this, making them lose the viral effect it had initially flown on.
Ah, but you see, the system is already flawed today: look at the mistakes ContentID makes!

Yes, exactly. And maybe we should curb and frame those excesses instead of encouraging them at a larger Internet-scale? Maybe that is what we should have been talking about, as well as a User-generated content exception that is fit for purpose in the 21st century? Not extending faulty censorship machines in the hands of private corporations?

OK, so now you’ve officially offended the God of memes and everyone’s intelligence in the process. That deserves a meme:

Caroline is coordinator of the Copyright 4 Creativity (C4C) coalition. She is also the founder and Managing Director of N-square Consulting (N²), a Brussels-based public affairs firm. She is the author of ‘ Survival Guide to EU Lobbying, Including the Use of Social Media’. [All content from this author is made available under a CC BY 4.0 license]