June 20, 2018 | Maddalena Rinaldi

EU copyright laws are being revamped this year for the first time since 2001. As a prime opportunity to bring the laws up to speed with modern technologies, this should be something to celebrate. However, the response to anticipated changes has been the opposite. In fact, there is a strong campaign against Article 13 of the proposed directive, which campaigners contend will lead to memes being banned.

Article 13 is intended to protect the intellectual property (IP) rights of people who upload their material to the internet and allow them to make a living from their creative ideas. However, many people, including the United Nations Special Rapporteur on Freedom of Opinion and Expression, are claiming that the Article is too stringent.

The way that Article 13 intends to protect IP rights is by placing an obligation on “information society service providers” (ISSP) that store and give access to any copyrighted materials that their users upload, to take specific actions to ensure that these uploaded materials do not infringe any other rightsholders rights in their works. To protect these rights, ISSPs are required to filter all uploads by implementing new content recognition technologies and enter into licensing agreements with all rightsholders. Further, the ISSPs need to provide the rightsholders with sufficient information on how the filtering technology works and set up a complaint system so that rightsholders can seek redress when their rights have been infringed.

The aspect of Article 13 which has resulted in backlash is the requirement that all content uploaded must be filtered. Content filtering technology, critics allege, will fail to recognise legal uses of copyrighted works.

Given the sheer volume of uploads, filtering technology would need to be automated. However, an automated system would likely be unable to navigate copyright law and detect any legal uses of a work. This would lead to an abundance of material being blocked. Memes, for example, are developed from original creative works, usually a photograph, and shared with added text on top of the photo generally without the author’s permission. Despite this apparent infringement, they are currently a legal use of a work under EU law. With the content filtering regime in place, memes may well be filtered out if the technology cannot recognise their presence as a legal use.

The other potential problem is that large internet companies will have too much control over content. Surprisingly, this concern has not just been expressed by members of the public, but the internet companies as well. Both sections of society fear that content filtering will prevent open sharing and innovation, replacing it with surveillance, censorship and control over what people are sharing. While individuals are worried about their own freedom of expression, companies are concerned about the obligation it places on them to monitor all content that their users upload, and their own potential legal implications if the filtering system fails them and copyrighted works are uploaded.

The vote for or against Article 13 is set to be held from 20-21 June 2018. At present, many are hoping that the outcome will not be in its favour. If otherwise, mandatory content filtering will become a reality for all ISSPs in the EU, potentially restricting freedom of expression and enhancing censorship online.

By Micaela Hanlon