Sending memes or gifts is so usual among us for entertainment after a long and hectic day. But imagine that one day all people on the internet were talking about that memes will be banned, generating anger, uncertainty, and rejection on the part of internet users and big platforms. 


We must indeed be aware that we can run the risk of copyright infringement. However, we also should know about the exceptions to the prohibition in general. Copyright is the legal right and instrument that permit artists, authors and content creators to protect the use of their work, so it often conflicts with fundamental rights such as freedom of expression.


One of the directives that have generated the most controversies lately has been the Directive (EU) 2019/790 of the European Parliament and the Council of 17 April 2019 on copyright and related rights in the Digital Single Market. There were many campaigns against it. The world was well-briefed about the effects of this Directive on the use of the internet. Even the big platforms such as YouTube, Facebook, Instagram, or Twitter encouraged their users to position themselves against the adoption of this Directive [1]. Many people have criticized it and sometimes without really knowing the ultimate objective of this Directive and what exceptions and limits it has. 


As we well know, on the internet, in a second, everyone could be talking about the same thing, the so-called trending topics. It was what happened months before the adoption of that Directive. Numerous campaigns were against its approval, and more than 5.331.670 signed a petition against the provision[2].


Everyone across Europe was talking about Article 13 and the end of the use of memes. So, Article 13 of the Copyrights Directive, colloquially called the “upload filter”, has been the one that generated the most controversy from the many Member States and internet users. 


There were discrepant opinions between those who believe that this article will further censor our freedom in the use of the internet and those who consider that it will help defend copyright to protect their work against those who use that content without consent and occasionally even profit from it because memes are created from images or videos sometimes protected by copyright generating new content.


Thus, despite the unfavourable positioning of the several Member States and all these campaigns against it, the Directive was adopted on 26 March 2019 by the European Parliament in plenary by 348 votes in favour, 274 against and 36 abstentions some changes[3]. Article 13 was finally adopted in Article 17, being more precise and with fewer limits than the previous version.


The main objective was to adopt legislation on changes in society and the internet´s world and fill some legislative gaps left by Directive 2000/31/EC on electronic commerce. This Directive understood that platforms were indirectly responsible and required them to remove copyright-infringing content without further specifying or mentioning the exceptions. 


However, while it is true that the new Directive specifies that platforms are the responsible ones, which must ensure that they develop technologies to efficiently detect all illegal content, it also did not specify the exceptions in the previous Article 13 before being finally amended and approved in Article 17, which does expressly mention the exceptions and state that “The Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services: quotation, criticism, review or use for purpose of caricature, parody or pastiche”, so it was clear that memes will not be banned.


Then what is the real problem?


Nevertheless, we still run the risk that the technology used by these platforms can detect a publication as inflicting copyright even without really being unlawful for being an exception to the prohibition as set out in Article 17(7). Furthermore, develop and apply a content-matching technology similar to YouTube´s Content ID system can be very expensive for most Internet platforms, so maybe only the big media can comply with this obligation. 


In conclusion, I estimate that the current problem will affect more the smaller and less powerful platforms, which must have an effective and expensive system to correctly filter the uploaded contents. 


Moreover, what worries me about this issue is public opinion and social pressure to affect the decisions made in the legal field. What also overwrought is the facility we have nowadays to spread false news and disinformation.


For a closure with perspective, to what extent can public opinion and social pressure influence the alteration of legislation? And what happens when sometimes that public opinion is not correct?




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