Try to regulate the Internet, and you will get memed.
In the middle of a controversial debate around net neutrality in the United States, Federal Communications Commission (FCC) Chairman Ajit Pai tried to win support with a cringeworthy promotional video. In addition to the strong opposition to the new plans, the video was repeatedly mocked and parodied by Internet creators around the world.
Next in line to propose new regulations on the Internet is the European Commission, who, through a new copyright directive known as Article 13, want to “[improve] the position of rightholders to negotiate and be remunerated for the exploitation of their content by online services giving access to user-uploaded content” and make sure that “authors and rightholders receive a fair share of the value that is generated by the use of their works and other subject-matter”.
The concern comes from campaign groups such as Save Your Internet, who argue that websites will have to “implement complex and expensive filtering systems and will be held liable for copyright infringement, potentially incurring fines that threaten their economic viability”.
“The days of communicating through gifs and memes, listening to our favourite remixes online or sharing videos of our friends singing at karaoke might be coming to an end,” it goes on to add. It was these specific concerns about memes which made the headlines in media organisations such as BBC News and Sky News, and led to many young and witty remainers to joke that they now support the vote to leave the EU in 2016’s referendum.
As with most policies, there is a degree of ambiguity and over-the-top formality in the EU Commission’s proposal, but campaigners are right to voice concerns about Article 13 affecting memes. In the UK, there’s certain instances where duplicates of copyrighted work such as photos and videos can be monetised – provided the new version is transformative. In other words, creative forms such as reviews and parodies are covered under fair use or fair dealing because they bring new ideas to the table, and thus don’t infringe upon the market of the original work.
Before I elaborate, I should stress and issue a disclaimer that I am not a legal expert or lawyer, and so my knowledge of copyright and fair use comes from my time on YouTube and as a journalism student whose dabbled a little bit in media law.
Upon hearing this news for the first time, I was curious to know how such a proposal – if fully backed and passed within the different organisations within the EU – would be enforced. However, after seeing the term “recognition technologies” within the document, it’s clear that we’re talking about systems similar to YouTube’s Content ID function. Yet, even that has its problems…
With any legislation – especially those regarding any form of expression (e.g. free speech laws or copyright laws) – it’s important that it allows for context. On a site like YouTube, for example, video game cutscenes may be flagged for copyright infringement when they may be a part of a play through by a games reviewer. YouTube film critics face issues around copyrighted movie footage which, for a video-sharing site, is essential for illustrating their review. In all of these instances a computer system may struggle to understand the underlying context in which the copyrighted content is placed. Searches for matching content can be easily coded and incorporated into an algorithm – context cannot.
Therefore, I am mainly sceptical of this proposal, but that’s not to say that I don’t see where the EU Commission is coming from. Whilst the possible restriction on memes is ridiculous and nonsensical and falls under transformative fair use, I do believe that more adequate protection needs to be put in place for talented artists who may find companies using their drawings and illustrations online without credit.
Although, this brings me to another issue with this policy. Whilst legislation can be a blanket law to address a rare event or a small instance, group etc., on this occasion, using algorithms to scan whole websites for this one specific issue may actually do more harm than good. We have to protect artists and illustrators who are having their content duplicated without no transformative element, but a dragnet algorithm is not the right way. Instead, much like some sites already have flagging and reporting systems, each platform should have a report button which allows creators to request to have the duplicate taken down.
As much as we should be concerned about what Article 13 means for memes, we should also question what alternative laws there needs to be to protect artists’ work.