The European parliament will vote at the end of March 2019 on a proposal to reform EU copyright law. Under this proposal, online platforms arguably have to introduce technological filters to tackle copyright infringements. This will be of particular interest to people who make satirical memes or parodies based on online content such as art or films, much of which is subject to copyright protection.

According to a statement from the parliament released at the end of February:

The deal … aims to ensure that the rights and obligations of copyright law will also apply to the internet. The co-legislators also strove to ensure that the internet remains a space for freedom of expression. Snippets from news articles can thus continue to be shared, as can Gifs and memes.

While a modernisation of copyright for the digital age is needed, there are serious doubts as to the impact of these new obligations on freedom of expression as well as cultural diversity. These concerns are exacerbated when dealing with parodies as these require the public to understand that the expression is for parody or satire purposes.

Striking a balance

The dissemination of online parodies generally involves three types of actors. Firstly content creators – authors for example – who receive copyright protection for the works created. Then there are the platforms hosting content – including YouTube, Facebook and Twitter. Finally, there are those users who copy copyright-protected materials to create parodies and, in turn, disseminate these on various platforms. Incidentally, users can receive copyright protection for the content they create.

Copyright law should aim to strike a fair balance between the protection offered to rights holders and the needs of society to have access to creative works without the interference of rights holders in certain specific circumstances. To balance the expansion of protection for rights holders, territories, including the US and the EU introduced exceptions and limitations to copyright laws to allow the creation of parodies. These are the “fair use” rule and an exception for parody, pastiche and caricature. Parodies involve the humorous reproduction and transformation of protected works – which means that without the defence offered by this exception there is a danger that they will infringe the original creator’s copyright if prior authorisation has not been given.

A good case study would be the many memes created using the 2004 movie Downfall, set in Hitler’s bunker in the last days of the Third Reich. A scene towards the end of the film shows Hitler reacting furiously to the news of Germany’s imminent defeat. By rewriting the subtitles (the movie was made in German) hundreds of people have turned the scene into a spoof vehicle for commenting on bad news – whether it’s that Twitter has gone down or that Oasis has split up. The rights holders, Constantin Films, issued infringement claims and many of the memes disappeared leaving only the notice reproduced below.

Twitter

But, as we’ve seen, parody is explicitly given an exemption under copyright law, so Konstantin is not entitled to order these memes to be blocked.

Filtering obligation

Under Article 13 of the new legislation, most platforms will be liable for the content uploaded by users. To avoid liability, platforms will be required to make “best efforts” to obtain a licence for any content uploaded by their users and to remove infringing content. Arguably, platforms will be required to use filtering software to detect and remove unauthorised works prior to their upload.

Algorithms work well when it comes to identifying when content such as the scene from Downfall is uploaded – but they have serious limitations when it comes to determining whether a particular use is lawful. This is a problem for parodies and memes which – by their very nature – involve copying something that already exists. Algorithms aren’t set up to recognise a parody.

Mandatory parody exception

Existing law has allowed member states to decide whether to introduce their own parody exception, but the change to the EU law arguably takes any discretion away from member states when it comes to the introduction of a parody exception.

Also the new EU law prevents platforms and rights-holders entering into contractual agreements to prevent the application of the parody exception. So in the case of the Hitler meme, the new law would mean that Constantin Films and YouTube are prevented from entering into an agreement that would require YouTube to automatically remove parodies based on Downfall – something which would render the parody exception meaningless. This is welcome, given that the new law recognises the importance of parodies. But, as this is an area where non-disclosure agreements often apply, it may be difficult to monitor.

Complaint and redress

The new law would require platforms to put in place “an effective and expeditious complaint and redress mechanism” to allow users to challenge decisions made by algorithms and get their content reinstated. The problem here is that the law effectively privatises this mechanism. It seems odd to trust a player that is motivated by private commercial interests to make a decision as to what sort of content meets the parody criteria, especially given the difficulties courts are already having in striking this balance.

What’s new about this proposal is that users should be able to challenge blocking decisions in court – which is a positive step. The problem is that users don’t have rights that can be enforced in law, they only have a defence if they are sued for an infringement of copyright law. So I find it difficult to see how this will work in practice.

The expansion of rights in the past decades to cover any use of protected works by an individual results in strong arguments for giving more weight to copyright exceptions. But there are doubts that the proposed law will have the desired effect. The problem with trying to harmonise these changes to copyright across the EU as a whole is that different member states have different legal traditions.

Until we see some evidence to the contrary, it’s hard to predict whether the new directive (if adopted) will make much difference. My feeling is that for platforms such as Facebook and Twitter, which already rely on algorithms to tackle copyright infringement and have already a complaint and redress mechanism in place, it will simply be business as usual. Meanwhile the losers will continue to be people who make funny memes only to see them disappear thanks to an algorithm without a sense of humour.

Sabine Jacques, Lecturer, School of Law, University of East Anglia

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