EU governments OK ‘war on memes’ copyright law changes

A proposed series of copyright law changes opponents say have been weaponized to end the so-called "war on memes" took another step toward passage Wednesday, winning endorsement from European Union governments.

While the changes are ostensibly aimed at protecting news sites and other copyright holders from mega-conglomerate aggregators like Google or Facebook, critics say smaller media companies will suffer far more from the sting of the new versions.

Internet platforms of a certain size must comply with standards aimed at eliminating infringement, under the changes. Legislators say the Directive on Copyright in the Digital Single Market, more commonly known as the EU Copyright Directive, would help close the profit gap between creators and the internet platforms hosting their content.

Under the initiative, platforms that have existed for longer than three years and generate more than €10 million a year will be responsible for ensuring no infringing content is posted on their websites.

Neil W. Netanel, a UCLA School of Law professor teaching copyright and international intellectual property, said the United States has a similar policy in the form of the Digital Millennium Copyright Act, which offers safe harbor provisions to webhosts who make good faith efforts to self monitor for unlawfully posted content.

But the EU's changes would take that a step further, Netanel said. Rather than require webhosts to simply take down unlawful content as soon as it's noticed, the EU asks them to stop it from being posted in the first place.

To accomplish that, the webhosts would need to license the rights for advanced web filtering services. The services are incredibly expensive, Netanel said, and would disproportionately affect smaller companies. Most big companies, which are U.S.-based, already run their own filtering services voluntarily.

"Google can afford it, Facebook can afford it, but there are companies making just around 10 million euro in revenue that couldn't," Netanel said. "There's a chance Europeans are shooting themselves in the foot because this is just going to make it harder for Europeans."

And because the standards are so stringent, the filtering services would need to over correct to ensure no unlawfully posted content ends up on their websites, said Daniel O'Brien, international director for the Electronic Frontier Foundation.

"They'd have to really, really turn them up because if anything gets through they'd be screwed," O'Brien said. "The problem is some stuff that already gets taken down all the time is perfectly legitimate."

Filtering services aren't advanced enough to reliably differentiate between a parody and the content parodied, O'Brien said, nor can they detect when videos that include snippets of copyrighted content aren't in violation of fair use. O'Brien said that would have a huge impact on creators.

O'Brien said journalists, a group the changes are intended to protect, would actually suffer under the proposals. Particularly due to Article 11, which would require webhosts to acquire the licensing rights from press publishers when their content is posted to websites.

Webhosts would be required to pay this "link tax" even if all that's used is just a small quote, which O'Brien said might chill free speech rather than encourage it.

The likely chilling effect on parody, criticism, and other valid forms of free speech are one reason the reformation effort has informally been known as "The war on memes," O'Brien said.

While he believes copyright reformation is necessary, given the EU's copyright laws haven't been reexamined since the start of the new millennium, "this has been a train wreck from the start."

While Wednesday's endorsement marks a major step toward passage, O'Brien said he wouldn't be surprised if the proposals are derailed.

Resistance has been growing, as evidenced by an EU petition against the directive which received 4 million signatures. With a vote anticipated in March or April -- just weeks before most of the legislators voting on it would be up for re-election -- O'Brien said he's hopeful the current effort will be shelved.