The Anti-Meme Law: Article 17 approved in Europe. Have multiple MEPs voted mistakenly?

On March 26th, 2019, the European Parliament adopted the Directive on Copyright in the Digital Single Market. Popularly dubbed an “anti-meme law,” this document promises a number of troubling repercussions for the internet, both on the European and global scene. This article intends to carry out an analysis of the document’s final version and to address recent news regarding voting mistakes by several MEPs, updating our initial analysis on the project.

In January 2019, IRIS published an introductory post on the Copyright Directive in the Digital Single Market, which was proposed in 2016 in the European Union and has been in progress since then. In the post, we showcase the legislative process of the Directive, the main concerns related to its text, among others. At the time of this post, the document was moving towards its conclusive stages of procedure, but its final voting was postponed due to the resistance of several countries against the Directive. In particular, the resistance was related to Articles 15 and 17 of the document (formerly Articles 11 and 13).

Chronological history of Articles 15 and 17 and main criticisms of the Directive

Briefly, Article 11 determined the implementation of limits on the sharing of links that reproduced any section of their content. The sharing of a news article link, for example, should not mention a preview of said article, nor an illustrative image and not even the headline – these materials would be of exclusive reproduction by the rights holders on the news.

After thorough discussion, former Article 11 (now named to Article 15) has been slightly altered to allow the mention of “individual words” or “short excerpts” of the material whose link was shared. In this way, Article 11 would provide protection very similar to the legislation adopted in Germany in 2013 – which has been strongly criticized since then for its ineffectiveness. The final version of Article 15 of the European Directive, however, has an even broader scope than the German provision, and applies also to services maintained by individuals, small businesses or even for non-profit purposes.

On the other hand, former Article 13 imposes limitation on the availability of content of any kind through any online mass-sharing platform that generates revenue. These platforms – such as YouTube, Facebook, meme-sharing sites that use advertisements as a source of revenue, among others – would be responsible for copyright infringement made by their users, thus being responsible for signing, with the holders of copyrighted works, licensing agreements for any work that could potentially be spread through their platforms. In this way, the measure reverses the previously valid system that holds the user accountable – rather than the platform – by means of the “notice and takedown” method. According to this technique, the platform would only be liable for an infringement committed by the user if it did not obey a previously issued judicial order that determined the exclusion of specific content.

As it was originally written, therefore, the European Directive required that sharing platforms should detain the rights of reproduction for essentially all existing copyrighted content – which, of course, is impossible. Exceptions have been made to limit these platforms’ accountability if they have been proven to “make every effort to prevent infringements by their users”, which would, in short, result in the obligation that platforms should filter all shared content before their upload – another practically unfeasible requirement.

The original wording of the provision was initially criticized for its generality and scope, which is why Article 13 has been rediscussed in the European Parliament. However, the final version of the text – in which it was transformed into Article 17 – did not appease its critics. On the contrary, the version of the device that was approved on March 26th is even more severe than the original, forcing the platforms, in addition, to provide mechanisms that, while ensuring the filtering of desired content, also make it possible to use the authorial content for lawful purposes such as parodies and other creative models that fall under the concept of “fair use”.

This dual requirement of guaranteeing a massive filtering of shared content without preventing the upload of works considered as fair use, however, is, by definition, unreachable. That is because the volume of material shared on these digital platforms is too large for humans to be able to perform the content filtering. Automated systems such as YouTube’s Content ID, in turn, are not able to distinguish between improper content sharing and fair use, making the demands outlined in the Directive unobtainable. Hence the nickname “anti-meme law”, because most of the memes we produce, using images or excerpts from movies and TV series, for example, fall under the concept of fair use.

The #SaveYourInternet movement and the protests against the Directive

Since our first post on the European Directive in January 2019 and the final approval of the document, there was a significant increase in the calls for the stopping of this initiative. The #SaveYourInternet movement, which already existed at the time, had the participation of several relevant individuals, such as widely recognized YouTubers, members of the technical-scientific community, as well as the support of big IT companies.

However, as time passed went on, the movement grew considerably. European citizens were encouraged to write to their countries’ MEPs, expressing dissatisfaction with the document; large-scale digital platforms took action to stop the proposal – Wikipedia, as a notorious example, completely ceased its activities for a day in protest – and large street protests were organized on many European Union member countries in response to accusations that criticism against the Directive was being shared by bots.

Julia Reda of the German Pirate Party was one of the main representatives of the resistance against the Directive. Having stood out in the organization of street protests throughout Europe and defending the counterpoint to the project’s proposal, the German MEP said that this was the directive of the European Union against which the population has mobilized the most up to this day.

Protests against the Directive also gained momentum outside the European Union. As Europe represents an extremely important market for the international economy, events regarding the region’s internal Law have a great chance of reverberating in the rest of the world, through similar regulations and even through the unification of the conduct of the companies that will be forced to follow the demands in the Directive. Therefore, concern about the repercussions of the new legislation goes beyond European borders and reaches global relevance.

Multiple MEPs reported having voted mistakenly regarding the amendments to Articles 15 and 17

Still on the 26th, Dutch MEP Marietje Schaake reported in her Twitter profile that, according to the changes included in the official voting record, the amendments to articles 15 and 17 of the Directive would have been approved. If these votes were properly accounted for, more negotiations would have been held on the final texts of those provisions.

In total, thirteen Members of Parliament declared to having voted differently from what they intended. Out of these thirteen, ten voters claimed to have voted negatively when they intended to vote in favor of continuing the discussions, two claimed to have voted for the amendment even though they wanted to vote otherwise, and one MEP who voted actually intended to not have done so at all.

There was great discontent regarding these facts on social networks. This is because the changing of votes on the official record has only documentary validity: it does not affect the official outcome of the voting, which remains unchanged.

MEPs who declared the mistakes claimed that this was caused by some confusion in the voting procedure. The voting on the amendments to Articles 15 and 17 was proposed orally and hastily during the parliamentary session and, according to them, the matter was not very clear. Magnus Andersson of the German Pirate Party, however, claimed that these alleged mistakes may have been made on purpose and reported in order not to compromise the political reputation of these parliamentarians.

The truth is that, it is not possible for us to know for sure what caused voting mistakes, nor what outcome might have been expected had everything occurred correctly within the European Parliament’s vote on the Directive. In any case, this lamentable episode rests recorded.

Future perspectives for the Directive

With the enactment of the Directive by the European Parliament, the project still needs to be adopted by the European Council, and this should occur in early April. Thereafter, the countries of the European Union will have two years to create specific internal legislations to implement what was determined in the Directive.

However, in a post on her website, Julia Reda said there is still some hope that the Directive will be barred, at least for now. This is due to a recent opinion published by Katarina Barley, Prime Minister of Germany, who positioned herself against the use of upload filters, which means that it is possible that the country withdraws its support for the regulation. If that happens, Reda said it would be unlikely that the Directive would gain majority approval in the Council, which could lead to further negotiations on the final text of the document following the European Union elections in May this year.

According to Marietje Schaake, the various mistakes made by parliamentarians in the official voting report can also influence the discussions a bit. That is because the rejection of the amendments to Articles 15 and 17 of the Directive was decided by a very small margin and, theoretically, would not have occurred had the votes reported been actually accounted for. According to Schaake, therefore, this uncertainty may be sufficient to motivate the Council’s choice to extend the Directive – although, according to Schaake, there is only a slight chance of that actually happening.

In any case, despite approval in Parliament, there is apparently still possibility for discussions and overturns to be expected regarding the European Directive. While the legislative process has not yet come to an end, we still have hope that some changes will still be made to the document.

If this does not happen, we can expect potentially severe consequences for the functioning of the internet as we know it today. Because it depends on the creation of domestic laws by the countries of the European Union, it is uncertain how the provisions of the Directive will be addressed in each legal system. These provisions, however, are severely dangerous when it comes to guaranteeing online freedom of expression.

Are you interested in topics related to European law and its consequences for the legal systems of countries around the world? Last year, the General Data Protection Regulation of the European Union came into force, with great repercussion on the functioning of the Internet at a global level. Click here to find out more about it!

The views and opinions expressed in this article are those of the authors .