EU Copyright Directive Passed Today Could Ruin Memes For All of Us

Someone owns the copyright on that photo of Grumpy Cat. Ditto the “This is Fine” dog and “Dude Looking at a Girl Who Isn’t His Girlfriend,” before and after you slathered text boxes on them and hit share.

Since the internet began, memes have exploited a loophole in copyright legislation: a “fair use” framework that allows anyone to use copyrighted material without permission of the owner for what U.S. law calls a “limited and transformative” purpose, usually to parody, criticise, or comment upon the original content.

But a new copyright directive approved today by the EU’s Legislative Committee doesn’t include such a fair use exception. Even if it did, the automatic content recognition technologies the law would force sites like YouTube, Twitter, and Reddit to use to filter all uploaded content wouldn’t be able to distinguish between fair use and copyright infringement. Everything that matches would be censored. How do you teach a computer to recognise parody?

Think of the filters as a kind of a plagiarism detector, like Turnitin, used by universities to catch students cheating. They don’t do nuance. Even legitimately quoted text from sources raises their alarms.

Does material used on your meme match the content a media conglomerate claims to own, a screenshot from one of their films, maybe, or an image owned by a photo licensing service? Flagged, censored.

What about that video you want to post, with the car radio playing muffled in the background? To an overly cautious machine filtering system, it’s a match.

Previously, law had established that users were responsible for the content they uploaded to websites. Article 13 would upend that, placing the responsibility with the internet platforms themselves, not only allowing but actively mandating those platforms undertake surveillance and censorship in defence of rights holders.

It’s not just the denizens of r/dankmemes who will suffer. The copyright directive is so broad that it will hamper musical artists seeking to share remixes and mashups and contributors to open collaboration sources like Wikipedia and Github. Ownership claims, including fraudulent ones, could also be used strategically to censor politically sensitive content, say by limiting, even temporarily, access to Wikipedia articles about key political events or wiping footage of protests from social sharing sites.

The internet isn’t relinquishing its memes and “fair use” without a fight though. Tech pioneers including web inventor Tim Berners-Lee, Wikipedia founder Jimmy Wales and the founders of the Internet Archive and the Mozilla Project have signed a letter to European Parliament President Antonio Tajani, decrying the proposed law as “a tool for the automated surveillance and control of its users.” The letter also highlights the financial burden the development of these automated filtering systems would place on internet platforms, inflicting “substantial” damage on their business models.

At the grassroots, the Save Your Internet campaign urges European citizens to contact their MEPs.

And the fight isn’t over. The version of the directive approved by the Legislative Committee today will be referred to the parliamentary plenary, to face a vote the following week or in late September, following the parliament’s summer recess.

Lauren Smith

Lauren Smith has worked as a journalist and copywriter for most of the last decade, covering technology, energy, and consumer rights, in the US and UK.

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