How to avoid banning memes – a new consultation paper on the EU Copyright Directive

Even though we broke up and it changed its name, it's hard to forget Article 13 (now 17) of the EU Directive on copyright in the Digital Single Market (the Copyright Directive).

Article 17, or as it's otherwise known, the "meme ban", has been through various iterations since it broke the internet back in 2018. It officially came into force, along with the final form Copyright Directive, on 7 June 2019, and EU member states have until 7 June 2021 to implement its provisions into national law. Of course, as the UK leaves the EU before the end of the mandatory implementation period, the hype has died down sufficiently that most people will, at this point, need a reminder of: (1) what Article 17 actually says; and (2) why this blog post is even relevant. 

(1) - Article 17 "clarifies" that online content-sharing platforms perform an act of communication to the public (i.e. a potentially infringing act under the original EU Copyright or “Infosoc” Directive) when hosting copyright content uploaded by their users. This means that not only the uploading user but also the platform (often a much more financially appealing counterparty) will be liable for communication of any unauthorised copyright content. Although the CJEU maintains that this is a clarification of existing copyright law (see recital 64 of the Copyright Directive - although compare against the Advocate General Øe’s opinion in the recent YouTube case), it is widely viewed by commentators as a fundamental shift in liability, transforming online content-sharing platforms from "conduits" for copyright protected content to active participants in the communication process.

(2) - Late last month the European Commission issued a consultation paper which will form the basis of the official guidance on the application of Article 17. The consultation paper is open for comment until 10 September 2020. This means that businesses within the EU (and whose online reach will extend to the EU) have a limited window to raise issues with the Commission's proposals on how Article 17 will be implemented in practice.

In terms of content, a key theme throughout the consultation paper is the importance of proportionality – the suggestion that concepts such as “best efforts” and “authorisation” should be interpreted by reference to contextual factors such as the size of the platform, the prevalence of the relevant content and the frameworks put in place by individual member states. The Commission encourages member states to consider establishing an information exchange to facilitate communication between rights holders, users and service providers, and notes that a more structured system may make it easier to establish where these thresholds have been met. Although couched in somewhat vague language, these recommendations are a welcome nod to the practical impact that Article 17 could have in fostering the development of the licensing market for smaller rights holders.

The paper also touches on the rationale for the much debated Article 17(4) defence against liability. It notes that the defence only becomes applicable in those circumstances where the primary goal of authorising acts of communication to the public performed by content-sharing platforms cannot be achieved. This gives some degree of insight into the background against which the European courts will interpret the requirements of Article 17(4) – an area in which any clear direction is likely to be invaluable to the numerous content providers looking to establish a compliant regime around non-authorisation. 

A final point worth noting is the Commission’s approach to the exceptions for quotation, criticism, review and parody. The consultation paper states that member states will be required to transpose these exceptions in the context of Article 17, even where they are not part of the wider copyright landscape in the relevant member state (being optional exceptions under the original Infosoc Directive). The Commission goes as far as to suggest that other optional exceptions under the Infosoc Directive (such as for incidental inclusion of a work in other material) could be usefully implemented in respect of uses of copyright material covered by Article 17. It is helpful to hear the Commission explicitly recognising the practical role of exceptions in the context of Article 17 as an important part of protecting free expression and legitimate use of copyright (and non-copyright) content.

In summary, this consultation paper does provide some commentary on how businesses might address the more logistically difficult aspects of applying Article 17. That said, unfortunately it shies away from the decisiveness and precision which, once adapted into guidance, would give online content providers an effective manual to guide compliance. It would benefit from clear direction at this consultation stage from businesses who are well placed to identify those areas of guidance which need to be addressed at a more practical level.