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Georgia Shriane
Georgia Shriane,
SENIOR ASSOCIATE - SOLICITOR
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Article 13 - MEME Law is coming...
27 March 2019

The new copyright directive is one step closer to becoming law. Internet human rights and freedom of speech crusaders are unhappy as the effect will be to require service providers to “police” their platforms and the content that users share on them. This may in reality mean that platforms will use filtering software and this can mean indiscriminate banning of content (due to the computerised “decision making”). 

The proposals mean that the onus will be on, for example, the social media platforms to filter their content and ensure that copyright is not breached on their platform. They will have to use their best efforts to obtain permission from the copyright users or remove the content to avoid infringement. 

This is likely to have some important knock-on costs for social media platforms, as they will need to invest in software that filters content, as well as also potentially bringing in additional people in order to manage their responsibility for policing content.
 
From a more traditional legal perspective, this proposed legislation is really only an updating of copyright law for the digital age of today, to prevent pirating of original copyright material online, where posts can go viral very quickly infringing the creator’s rights. 

In some cases, this is seen as “just fun” (where a funny post or short family video of “Dad falling in the pond” becomes popular). However, where the content is an (often emerging) artist’s music video, piece of photography, artwork or film footage, the authors of the work have justifiable reasons for complaint. 

Making platform providers liable for the content on their platform was seen as the fairest and most efficient way to protect copyright. In reality, it may simply be a question of going after those with the deepest pockets: instead of pursuing the “little man” (the individual user posting content), the wealthy social media platforms will be responsible for breaches of copyright by the users. 

In terms of content policing generally, this may be an important first step. In gearing up social media platforms to police their copyright content, it may become easier to also require they do so in other ways beyond just copyright. There are many concerns about the content of social media platforms, used to spread hate speech, political agendas or encouragement to suicide – the “safety” of the internet generally could be subject of further reforms.
 
And finally, the sacred “meme”, the teenager’s favourite sport, remains protected by the copyright directive. Far from nipping bud free speech in the, the directive restates as an exception to copyright, the use of copyright content for the purposes of criticism, parody and pastiche – long live the meme! The question now really is to refine the filtering software so it doesn’t filter out permitted use of copyright materials in memes, the fear is that computerised filtering of copyright content won’t be able to tell the difference between a good meme and a copyright abuse. Computers are not famed for their appreciation of parody or pastiche!

ADVICE for SMEs and start ups in the UK :

The directive is not yet in force and would require domestic legislation to become law in the UK (with Brexit on the horizon for the UK, it is unclear at the moment, when it would come into force in this country). It also only applies only to businesses which have been trading for more than three years and whose annual turnover exceeds 10 million Euros and who have more than 5 million visitors a month, which is unlikely to be a problem for newer businesses in their formative years. There are often special one-click online copyright licences available for SMEs for copyright, so in actual fact the new regulation is being seen by some as levelling the playing field for SMEs or start ups.

N.B. Article 13 has now become Article 17 Directive on Copyright in the Digital Single Market 2016/0280 (COD) in the new version of the draft legislation

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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