The New European Copyright Directive Has Broad Implications for Memes, Esports and Digital Content

The European Union made global headlines as it recently approved sweeping changes to copyright laws within its borders. Although the laws will technically only apply within the EU, there is a possibility that companies may implement similar global policies.

The directive contains two items in particular that have been drawing the attention of the intellectual property community worldwide.

The first is the so-called “Link Tax”, which will require sites which display excerpts or links to news stories, such as Google News, to pay the original publishers a licence fee for linking to that content, except where the content is limited to “individual words or very short extracts” (a threshold which is, as yet, undefined).

The second item is the “Content Upload Filter” which states that any platform that profits from uploading content is responsible for ensuring that none of that content contains copyright-infringing material.

This has potential for broad-ranging impacts on areas such as memes, video clips where snippets of media are presented (e.g., background music, sing-a-longs, etc.) and in platforms such as Twitch, where there exists a whole economy around people streaming themselves playing video games for money. This holds host websites responsible for filtering out anything containing copyright-infringing elements. Although the EU has indicated that there is an exception for satirical content, which may cover items such as memes, it has not provided clear guidance on how broadly this exception will be applied.

There are growing fears that the “Content Upload Filter” will result in a highly censored and controlled digital marketplace. These filters will likely operate with very strict criteria. It is unclear whether the filters, which may use artificial intelligence algorithms, will be able to properly distinguish between content that is satirical and content that is not.

Google, Reddit, and other tech giants are all campaigning against this move and have issued calls to action to EU parliament to reconsider this reform.

Google issued a statement stating:

“The Copyright Directive is improved but will still lead to legal uncertainty and will hurt Europe’s creative and digital economies. The details matter, and we look forward to working with policy makers, publishers, creators and rights holders as EU member states move to implement these new rules.”

Authors: Jaclyn Tilak and Yonca Umur, 2018/2019 Articling Student-at-law