The European Parliament recently approved the Directive on Copyright in the Digital Single Market, popularly referred to as EU Copyright Directive. The article 13 of the proposed directive is a potential nightmare for the Youtube and Facebook content creators. The article states that online content sharing service providers and right holders are to cooperate in good faith in order to stop availability of unauthorised protected contents. The implementation of this provision will essentially be through upload filters, that will scan every content that users share and verify whether they are copyrighted material or not. The problem arises in the implementation mechanism. The upload filters dedicated to this, will sweepingly filter contents without distinguishing context of the contents. For example contents like memes, commentary, satire, parodies, fan videos, cover videos, product review videos etc. will be facing aggressive censor.
The Internet is particularly filled with contents that use copyrighted materials in order to create a simply unique content. Such use of copyrighted materials doesn't mandate acquiring permission of the copyright holder. Such use of creative works for transformative purpose is known as working in furtherance of the doctrine of fair use. U.S. Court of Appeals for the Ninth Circuit has stated in the Lenz v. Universal Music Corp. (2015) that fair use is not just a defense to infringement claims but an expressly authorised right and this right is protected in EU countries like France, Poland, United Kingdom etc.
Article 13 will violently disregard fair usage circumstances. As a result, memes and various other forms of creativity that uses copyrighted material under doctrine of fair use are at the threat of being extinguished from internet, resulting in the violation of right to hold opinion and freedom of expression guaranteed under Article 19 of International Covenant on Civil and Political Rights and Article 10 of European Convention on Human Rights. Although these rights may be subject to restrictions in public interest, contravening the doctrine of fair use is contrary to public interest. The doctrine of Fair Use ensures that copyright is not absolute and not used as a weapon to thwart creativity and public interest. Curtailing such right cannot have any good consequences to any stakeholder including the copyright holders.
The readers may wonder as to why an European directive have to do anything with an avid user of Youtube, Facebook or other social site in Bangladesh, which is geographically far away from the clutches of European laws and regulations. The implementation of article 13 will have a global impact as although the laws would only apply to the EU countries, the upload filters might be implemented around the world, having impact on the content creators and users even outside Europe.
The amendments approved in the directive are undergoing formal trilogue discussions and will go through a vote again in January, 2019, before being finalised. If finalised, EU countries will enact laws to implement the directive. Let's just hope European Union is not responsible for the death of memes!
The writer is a student of law, University of Chittagong.