The Death of the Meme: Article 13 and what this means for the internet
On the 12th of September 2018, the European Parliament voted on a version of an EU copyright directive, namely the The European Union Directive on Copyright in the Digital Single Market. Two articles are currently stirring up controversy, one of which being Article 13, which has been dubbed the “meme ban” article. What this article entails is that platforms, such as YouTube or Facebook, are responsible to enforce copyright protection, instead of the copyright holders having that responsibility. Platforms will not only be responsible for it, but they would “have to have filters in place to police the sharing of copyrighted content before it goes live,” Ryan Broderick wrote for Buzzfeed News. he continued to critique Article 13 that “the only companies that currently have the technology and resources to implement upload filters and pay link taxes are the same Silicon Valley companies [they] claim they’re trying to fight back against”.
So, what would this new copyright directive upload filters mean for the internet’s beloved memes and meme generators? Memes are often based on copyrighted images, which “can and must be mutated” according to Geert Lovink in his article ‘Overcoming Internet Disillusionment: On the Principles of Meme Design’. It is exactly on the bigger platforms that would have to abide by Article 13 that memes usually thrive, like on Twitter, Facebook, or YouTube. Will memes be able to survive without their natural habitat? Proponents of the directive argue that memes are protected as parodies, however others argue that the filters will not be able to distinguish memes from copyrighted material. In his article, Bonetto writes that “[f]rom a copyright perspective, [user generated content] resulting from the re-elaboration of content previously created by others falls within the grey area of derivative works”. Nuance is key to differentiating between meme-ing and copyright infringement. That leaves the question: who is to be the judge of what is parody or not?
In 2017, Ethan and Hila Klein from the popular YouTube channel h3h3Productions won a defamation and copyright lawsuit. H3h3Productions is famed for their reaction videos and have been known to create and/or share memes. Judge Katherine B Forrest ruled that their reaction video on a video made by another YouTuber, Matt Hosseinzadeh, did not constitute copyright infringement, declaring that “defendants’ use of clips from the Hoss video constitutes fair use as a matter of law”. This, at the time, was a victory not only for the Klein’s, but for fair use in general on YouTube. But what will fair use look like after Article 13 is implemented? Fair use in the United States is currently determined by four factors, namely the purpose and character of use, the nature of the copyrighted work, the amount and sustainability of the portion used in relation to the work as a whole, and finally the effect of the use upon the potential market (Stewart, 100).
One could argue that Article 13 and the rest of the directive only applies to Europe, however, it can be expected that platforms comply for a worldwide operation just as they did with the GDPR in May of this year. This will mean that the censorship of the internet will not remain a problem solely within Europe for long.
In his article ‘Internet memes as derivative works: copyright issues under EU law’, Giacomo Bonetto tackles the subject of EU copyright laws and memes. The article was published before the approval of the new directive in June 2018, however it provides insights as to what can exempt something from being copyright infringement. To begin, parodies are exceptions to copyright. For something to be a parody, it “must first be ‘noticeably different’ from the evoked existing work,” Bonetto writes. Secondly, the reworked work must “constitute an expression of humour or mockery”. However, there are limits to the parody defence: “[it] will apply when both the expression of humour or mockery and the noticeable difference, together with further incidental requirements, are met” (Bonetto). Thus, some memes are possibly not exempted from being copyright infringement.
The problem with this directive extends beyond memes. The new directive may also influence how academia works. While the aim of the directive is to ensure protection for copyright owners, concerns in academia are the extra paywalls that might go up on top of any research materials that libraries have paid for already (Schiermeier).
This censorship of the internet does not sit well with leading technology figures such as the creator of the World Wide Web, Tim Berners-Lee, and the co-founder of Wikipedia, Jimmy Wales, who have joined together to write a letter condemning Article 13. The letter states that
By requiring Internet platforms to perform automatic filtering all of the content that their users upload, Article 13 takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users.
Web 2.0 was a place that encouraged user generated content, be it in the form of art works and blog posts or articles, or in the form of cat videos and memes. By placing a filter over everything, Article 13 takes away what makes Web 2.0 what it is and what it was meant to be. The user generated content will die out and the age of sharing online will be less great for it.
The internet is a place commonly associated with Bad Things. People read news articles online, they receive WhatsApp messages with bad news from loved ones, and then there is also the existence of the Dark Web. And while the internet is a place full of Bad Things, it is often also a place where people find relief or joy, even if temporary. There are videos about unwanted animals finding loving forever homes, news of children reuniting with their parents, and Facebook pages dedicated to wholesome memes. Geert Lovink claims that while we have become disenchanted with the internet, “[t]he once fabulous aura that surrounded our beloved apps, blogs, and social media has deflated”, we “console ourselves with memes”. The memes is where people find comfort. Gervais and Hyndman wrote that when it comes to memes, “there will be more to imitate and more ways to imitate” (65). Regardless of what the EU decides to do with this new copyright directive, memes will never die (unless they end up on 9gag).
Bonetto, Giacomo. “Internet memes as derivative works: copyright issues under EU law.” Journal of Intellectual Property Law & Practice, 2018. academic-oup-com.proxy.uba.uva.nl:2443/jiplp/advance-article/doi/10.1093/jiplp/jpy086/5047836#118425928
Gervais, Daniel J. and Daniel J. Hyndman. “Cloud Control: Copyright, Global Memes and Privacy”. Journal on Telecommunications and High Technology Law, vol. 10, 2012, heinonline-org.proxy.uba.uva.nl:2443/HOL/Page?handle=hein.journals/jtelhtel10&id=57&collection=journals&index=
Lovink, Geert. “Overcoming Internet Disillusionment: On the Principles of Meme Design.” e-flux, vol. 83, 2017, www.e-flux.com/journal/83/141287/overcoming-internet-disillusionment-on-the-principles-of-meme-design/
Scheiermeier, Quirin. “EU copyright reforms draw fire from scientists.” Nature, 2018, www.nature.com.proxy.uba.uva.nl:2048/articles/d41586-018-03837-7
Stewart, Daxton R. “Can I Use This Photo I Found on Facebook – Applying Copyright Law and Fair Use Analysis to Photographs on Social Networking Sites Republished for News Reporting Purposes.” Journal on Telecommunications and High Technology Law, vol. 10, 2012, heinonline-org.proxy.uba.uva.nl:2443/HOL/Page?handle=hein.journals/jtelhtel10&id=57&collection=journals&index=