In the age of globalisation, the decisions of the European Union (EU) can often affect Australians. An example of this is a recent decision from the European Council called, ‘the directive on copyright and related rights in the digital single market’ (‘the directive’). The decision has also been called the “meme ban”. This article will explore the most controversial part of the directive, article 13, and discuss how it could affect your business in Australia.

What is the Directive?

The European Council adopted the directive in April 2019 to protect intellectual property rights holders and prevent the commercial exploitation of their works. 

The directive amends the current EU copyright law framework. Broadly, it seeks to:

  • adapt copyright exceptions to the international digital environment; 
  • improve licensing practices; and
  • implement a marketplace for copyright.

The directive also provides rules relating to the use of content in the public domain. 

What is Article 13?

A particularly controversial aspect of the directive is ‘article 13’. This part of the directive has drawn criticism from internet users and hosting platforms alike. Article 13 requires online content-sharing platforms to remove unauthorised copyrighted works from their platforms.

In practice, this means that any website that hosts user-generated content (such as Facebook, YouTube or Twitter) must remove any copyright-infringing material uploaded by their users. 

Currently, a user may upload any content to their profiles on various online platforms. Platforms only need to remove the content if copyright owners direct them to do so.

However, Article 13 seeks to change this. Under the changes, technology companies that are more than three years old or have an annual turnover of more than €10 million will be legally responsible for any material that is posted without the appropriate copyright licences. These technology companies will need to apply certain filters to content before it is uploaded to their platforms. They will then bear the responsibility of enforcing the rights of copyright holders.

What is Copyright?

Copyright is an automatically granted legal right. It gives copyright holders the exclusive right to choose how others can use or reproduce their work. 

Copyright generally provides protection for:

  • artistic works;
  • literary works;
  • film or television;
  • dramatic works; and 
  • musical works.

Although copyright material is generally given automatic protection, copyright holders may still wish to appropriately signal their rights within created works. The most recognisable way to do this is to include the © symbol on protected work. By requiring third parties to enforce the rights of copyright holders, instead of the rights holders themselves, article 13 seeks to change who must enforce these rights.

What Are the Exclusions to Article 13?

There are some important exclusions to Article 13. These exclusions will apply to many internet users. Article 13 does not impact:

  • content stored in cloud storage services; and 
  • not-for-profit online encyclopedias, such as Wikipedia.

There are also exemptions for specific content, including:

  • parody;
  • pastiche; and
  • critique.

This means the creation and sharing of memes will remain largely unregulated. Memes were a significant point of debate in the lead up to the creation of the directive, with many critics associating the laws with unwarranted censorship. Luckily, however, article 13 will not censor this particular type of content.

What Are the Advantages of Article 13?

Under Article 13, content creators will be able to seek compensation for the use or misuse of their copyright material. Supporters of the directive and Article 13 argue that these new laws may lead to the end of music and video piracy online.

Article 13 aims to protect copyright owners by ensuring that internet users uphold the requirements and obligations of copyright law.

What Are the Disadvantages of Article 13?

Many critics argue that article 13 will prevent new user-generated content. Article 13 restricts any creative content that uses elements of copyrighted content, which may stifle the production of new online content.

Given that Article 13 will not affect most memes, it remains to be seen how technology companies will avoid blocking memes with blanket copyright filters. A wide range of critics has argued that appropriate copyright filters do not actually exist. This means that only the biggest technology companies will be able to afford to build basic filters, and these filters will only be able to perform inaccurate automatic filtering. Many argue that blanket copyright filters would block many types of parody, such as memes and gifs, as they contain copyrighted material.

What Are the Implications for Australian Businesses?

Currently, the directive is only applicable to platforms that are hosted in EU states. This means that Australian platforms do not need to apply these filters.

However, the directive will make it more difficult for Australian individuals and businesses to upload content to online platforms. As discussed above, the copyright filters may be unable to distinguish between use that:

  • infringes on copyrighted material; or
  • includes copyrighted material for purposes such as parody, research or teaching.

This may impact businesses that generate online parody content or other relevant content, such as reviews.

It is not yet clear how EU member states will enforce the directive or how technology platforms will hold their users to account. 

Although the directive will not come into force for another two years, some commentators are already suggesting that Australia may move to adopt similar laws. Unless this occurs, the directive is unlikely to bring about significant changes for Australian businesses in the foreseeable future. If you own or operate an online platform or forum where users upload pictures or music, however, you should consider how Article 13 could affect your business in the future. 

Key Takeaways

If you are a copyright holder, Article 13 may provide far stronger protection of your rights. However, if you upload content that includes copyrighted material, it is important you know how these laws function and the potential impact they have on your business.

Australian hosted platforms will not need to make any immediate changes to how content is uploaded and reviewed. If you host or maintain any content in an EU state, however, you should find out if these obligations apply to you and what they could mean for your users. To find out how to prepare your business for any potential changes to Australian law, contact LegalVision’s intellectual property lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Talia Admiraal

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