By: Nashrah Ahmed

In September 2018, the European Union parliament voted in favor of a controversial copyright directive presented by Günther Oettinger, the previous Digital Commissioner.[1]  Titled the EU Directive on Copyright in the Digital Single Market (hereinafter “Directive”), this has been called “the upload filter,” or even the “meme ban.”[2]  The most controversial part of this Directive, Article 13, is meant to require social media platforms that mainly host user-generated content, such as Facebook, Google, and Twitter, to regulate the sharing of unlicensed copyright material.[3]  The Directive is meant to protect content creators by forcing platforms to scan all uploaded content for anything that could possibly violate a copyright and automatically remove that content.[4]  Any user posts that include copyrighted material, including scenes from movies or music videos used in memes, would automatically be removed from the website and could not be published.[5]

While this sounds simple on its face, this Article has raised many issues concerning automated content control and free speech.  Many have expressed concern about “stifling internet creativity,” while lawyers in the EU and the United States are emphasizing the large costs of automatic screening technology, the requirement of legal departments to distinguish what is considered copyright infringement on their platforms, and the potential for misuse.[6]  The main issue with automated content control is that these technologies have a hard time filtering between actual copyright infringement and fair use, especially for platforms that are mainly filled with content inspired by third-party material.  Companies and platforms such as Twitter, Tumblr, SoundCloud, and Reddit, which are filled with memes, song remixes, and other similar material, would be required to automatically filter out a disproportionate amount of content without taking into consideration the context in which the copyrighted work is being used.[7]

Larger tech companies are overwhelmingly affected by this Directive; however, smaller startups and platforms might be even more severely affected.[8]  It is unlikely that smaller platforms will have the capital to invest in automatic content filtering technology, as the Directive demands.[9]  This could also negatively impact small business owners, artists, and content creators who use social media to interact with consumers.[10]  The only people who truly stand to benefit from this Directive are copyright owners, who will be receiving much stronger protections against infringement.[11]

While this Directive has not officially been passed and will not be voted on until January 2019, it has been reported as being “unlikely to fail.”[12]  If the Directive passes, tech companies based in the United States would not have many options, as they could: choose not to comply and pay large amounts of fines; or comply, invest a large amount of money in automated technology, then lose enormous amounts of content, and along with that, users.[13]  Since it would be next to impossible to cut out the European market completely, companies are left without any good choices.  If this Directive passes, it is likely to change the Internet and social media as we know it and show us that use of illegal memes might be best.

[1] See Provisional Edition: Commission Proposal for European Union Directive on Copyright in the Digital Single Market, COM (2016) 0593 final (Sept. 12, 2018) [hereinafter Directive on Copyright].

[2] Matt Reynolds, What is Article 13? The EU’s Divisive New Copyright Plan Explained, Wired UK (Oct. 2, 2018), https://www.wired.co.uk/article/what-is-article-13-article-11-european-directive-on-copyright-explained-meme-ban?et=&bu=&cn=&src=&pt=.

[3] The E.U. Copyright Directive Won’t Kill the Internet – But it Could Still Cause Lasting Harm, The Wash. Post (Sept. 30, 2018), https://www.washingtonpost.com/opinions/the-eu-copyright-directive-wont-kill-the-internet–but-it-could-still-cause-lasting-harm/2018/09/30/afa69f0e-bac0-11e8-a8aa-860695e7f3fc_story.html?noredirect=on&utm_term=.c62efd29fe2f.; see also Reynolds, supra note 2 (stating that if the Directive is passed, all EU member states must enact domestic legislation in accordance with the terms laid out in the Directive).

[4] See Directive on Copyright, supra note 1; see also Julia Reda, EU Copyright Reform/Expansion, Julia Reda (Oct. 2, 2018), https://juliareda.eu/eu-copyright-reform/.

[5] Caroline Spiezio, E.U. Copyright Directive Advances, Article 13 Has Big Implications for Tech Companies, The Am. Law. (June 21, 2018) https://www.law.com/legaltechnews/2018/06/21/eu-copyright-directive-advances-what-does-that-mean-for-techs-legal-departments-397-9102/. 

[6] Id.

[7] Id.; see also Ian Lopez, What’s Next: The EU’s Showdown Between Copyright and Free Speech, The Am. Law. (Sept. 19, 2018), https://www.law.com/2018/09/19/whats-next-the-eus-showdown-between-copyright-and-free-speech/.

[8] Spiezio, supra note 5.

[9] Id.

[10] See, e.g., Julia Alexander, ‘Internet is Under Threat’: What You Need to Know About the EU’s Copyright Directive, Polygon (Sept. 11, 2018), https://www.polygon.com/2018/9/11/17843664/copyright-directive-europian-union-parliament-explained-internet-article-13-youtube-fair-use.

[11] Reynolds, supra note 2.

[12] Lopez, supra note 7.

[13] Spiezio, supra note 5.