The EU Has Passed Article 13, but Europe’s Meme War Is Far from Over

The EU has passed Article 13, its controversial “meme-killing” law, with very few amendments, but copyright enthusiasts shouldn’t get too chirpy

The European Parliament has voted to pass the new EU Copyright Directive. This is when things get messy.

Over the last few months, today’s vote had been portrayed as a decisive battle over the future of the internet as we know it. Whether you believed that or not, the vote revealed what side of the debate you stood on.

We have been here before: the directive was already rejected in a vote in July, following an energetic opposition campaign orchestrated by prominent technologists and internet grandees – including the inventor of the World Wide Web Sir Tim Berners-Lee, and Wikipedia founder Jimmy Wales. Far from being killed, though, the legislation was simply reassessed, with MEPs putting forward over 100 amendments. So here we are.

The main points of contention are the directive’s Article 11 and Article 13 — which detractors have dubbed, respectively, the “hyperlink tax” and the “upload filter.”

Article 11 would require internet companies to pay news outlets for hosting their content on their platforms. While this has been welcomed by some news corporations, others suggested that this would force social media companies such as Facebook, Google and Twitter to pay news organisation in order to feature as little as two words — or a hyperlink — from their news stories. Article 11 states that publishing “insubstantial parts of a press publication” should not be subjected to the norm, but fails to give a clear definition of what “insubstantial” boils down to. Does it mean a hyperlink snippet? A sentence? A word?

Recent amendments aimed at introducing exceptions for “private and non-commercial” individual sharing of links and hyperlinks also left some critics underwhelmed — mainly because most people share links on internet platforms, which would still have to comply with the directive.

Article 13 is — if possible — even more controversial, earning itself the reputation of a “meme killer.” It would require web giants to automatically filter copyrighted material — songs, images, videos — uploaded on their platforms, unless it has been specifically licensed. Despite its divisiveness, the piece of legislation passed by 438 votes to 226 with 39 abstentions in the European Parliament.

The most furious lobbying efforts focused on this article, with musicians, artists and authors coming out strongly in favour of the rule, and technology companies — such as YouTube — warning against its dangers.

Concerns included the filters’ blocking of non-copyrighted material by accident, pretextual copyright claims by “copyright trolls”, and the crowding out of smaller websites which cannot afford expensive filter software to keep their platforms compliant. Even if a meme-saving proviso was put forward, protecting the right to share material for parody purposes, some objected that the kind of AI-powered algorithms most likely to carry out the filtering operation would not be able to recognise memes. (Although Facebook seems interested in training its AI to do just that.) 

On the other hand, content creators retorted that Article 13’s impact was being unfairly exaggerated. “The proposals ask internet giants to follow the offline norm and pay a fair share for creative content used on their platforms,” the UK’s Society of Authors wrote on its blog ahead of the vote.

Today’s vote is not the end of the story, though: every amendment approved today will have to undergo another round of behind-closed-doors negotiations between EU politicos and EU member states, before going again through a vote in January 2019. The meme war is far from over.

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