The Draft EU Copyright directive and the “Meme-Ban”

On 14 September 2016, the European Commission proposed a draft directive on copyright in the
digital single market (“proposed Directive”). The Directive is part of a package of proposed laws
to modernize EU copyright rules in light of the development of new digital technologies.1 Article
13(1) of the proposed EU Copyright Directive establishes obligations on “information society
service providers that store and provide to the public access to large amounts of works or other
subject-matter uploaded by their users” to monitor and restrict the use of third party content that
is protected by copyright law. The Council of the European Union (“the Council”) and the
European Parliament are considering similar notions of “online content sharing service providers”
in their respective negotiations.2 An online “content sharing service provider” is defined as a
provider of “an information society service whose main or one of the main purposes is to store and
give the public access to a large amount of works or other subject-matter uploaded by its users.”3
Therefore, such entities include large internet sites used for public content sharing like Facebook,
Youtube, Twitter, etc.

Under Article 13(4)(a), content-sharing providers will not be liable for communicating or making
available to the public copyright-protected works, only if they have demonstrated “best efforts to
prevent the availability” of such works through “effective and proportionate measures.” Such
measures are required when right-holders have “provided the service with relevant and necessary
information for the application of these measures.”4 In the alternative, under Article 13(4)(b),
service providers are not liable when they have: (i) “acted expeditiously to remove or disable
access” to copyright protected works upon notification by right-holders; and (ii) demonstrated
“best efforts to prevent their future availability” through “effective and proportionate measures.”5

1
Foo Yun Chee, ‘Creative industries hit back at internet critics of EU copyright revamp’ Reuters (Brussels, 28 June
2018)
2
Proposal for a directive of the European Parliament and of the council on Copyright in the digital single market (draft
Directive) (doc. 12254/16), art 13; Special Rapporteur on the promotion and protection of the right to freedom of
opinion and expression, Letter Dated 13 June, 2018 to the president of the European Union (OL OTH 41/2018)
3
id, art 2(5)
4
id, art 13(4)(a)
5
id, art 13(4)(b)
What is noteworthy for the purposes of the present issue is the fact that the draft-directive envisions
a system of copyright compliance which is to be assured through a mechanism of imposing
“intermediary-liability” upon different intermediaries on the internet, where the “content sharing
service providers” are the “intermediaries”.6 Intermediary-liability can be explained as a
mechanism where a duty is imposed upon the service-provider to prevent the publishing of
copyright material on the internet by its users, failing which, they shall be held liable to sanction.
However, the draft-directive does not envision a mechanism for intermediary-liability in the strict
sense, rather, it grants the intermediaries immunity from liability but only if they comply with
certain pre-conditions which are already referred to above. Such a model of intermediary-liability,
where liability can be avoided if certain pre-conditions are met, is called as the “safe-harbour
model”.7

Now that a brief idea about the form of liability the Draft directive envisions is gained, it is integral
to understand what mechanisms does the various intermediaries need to create in order to prevent
its users from publishing copyright material or simply, “how will the aforementioned provision of
the Directive be actually implemented?”. Although, the directive only provides broad and unclear
guidelines with respect to the implementation mechanism, that is “a general obligation on
providers... to monitor the information which they transmit or store" and provides for “content
recognition” what ostensibly appears to only be a recommendation, it is pertinent to note that there
is no other way of proactively blocking any unauthorized copies before they are posted without
checking every single upload against a list of copyright works, and that requires “content
recognition”.8 Such a system before material is uploaded and the public has access to it, analyses
it and compares it with a central database, if significant similarity is recognized, the material is
further analysed and prevented from being uploaded if it violates a copyright of material within
the database.9

6
Christina Angelopoulos, ‘Sketching the Outline of a Ghost: The Fair Balance between Copyright and Fundamental
Rights in Intermediary Third Party Liability’ (2015) The journal of policy, regulation and strategy for
telecommunications, information and media, p. 72-96, 74
7
id
8
Martin Steinebach, ‘Automatic Content Recognition connect offline and online: human rights concerns’ (2017)
IJTPL, p. 45
9
Id
At this stage we approach the paramount part of this essay, the question arises “how does a content
recognition mechanism as provided for by the EU Copyright directive essentially leads to what is
being colloquially being referred to as the meme-ban?”. In order to answer this question, it integral
to understand the role and importance of “templatibility” to memes. “templatibility” or the usage
of an already existing template as the background of a meme, lies at the heart of online memes.10
Templating is the “practical, methodical and material”11 process by which this contextual
manipulation is expressed, the practices of templating have developed over time, and it is worth
providing a brief analysis of the two structural versions of online memes as a basis for
understanding the importance of templates to memes.

The first popular known “structure” of meme was the Image-Macro, an image macro is a picture
with superimposed text, conforming to a template for their combination and types of meaning.12
The images are usually striking representations of an action or emotion, often taking the form of a
human, anthropomorphised animal or object.13 The text of the caption is usually in large point size
Impact typeface coloured white with a black outline. The words are often written using Internet
orthographic alterations.

The first acknowledged image-macro was the 2001 “O RLY?” snowy owl, used to indicate a
dubious or incredulous response to a post on the Something Awful forums.14 The etymology of
the name ‘image macro’ is important to the basic concept of templating and how online memes
themselves came to be so successful. The “Something Awful forum” software allowed a user to
enter text that would expand into a pre-defined image This expansion of code is known as a
‘macro’ in computer science. In other words, a commonly understood practice in computer science
involves exploiting pre-fabricated structures.15 It is not surprising, then, that such understandings
were imported into Internet culture. “O RLY?” turned out to be the tipping point for the use of

10
Sean Rintel, ‘Crisis memes: the importance of templatability to internet culture and freedom of expression’ (2016)
Australasian Journal of Popular Culture vol. 2 No. 2, p. 256
11
id
12
id
13
Gerald Cupchik, ‘Meme creation and sharing processes: individuals shaping the masses’ (2014) TLJ, p. 3. <
https://arxiv.org/pdf/1406.7579.pdf > accessed 24 September 2018
14
ibid, n 10.
15
id.
image macros because its very simple pattern could be employed to great social effect. 4Chan
users have probably generated the largest number and variety of online memes of any online
service.16 In particular, 4Chan spawned the LOLcat (Know Your Meme 2011g). Since Happy Cat
(Figure 2, right) was posted in 2005 LOLcats have brought image macros more generally into the
mainstream, a necessary precondition to the spread of memes. Happy Cat widened the scope for
memes for public use on a massive scale.

The second category of memes is referred to as “Exploitables”, the term also refers to a class of
memes that involve superimposing images of a human or anthropomorphic figure onto another,
instead of critique, these memes seem to be produced and circulated simply as ghoulish humour.17
Strutting Leo/Leo Strut comes from an opportunistic photograph of Leonardo DiCaprio walking
with exaggerated happiness, The exploitable element is cut out of the original image, and then
superimposed onto other images.

The central point of this analysis is that the use of pre-existing material templates is the touchstone
of the concept of an online meme. The text of the “image-macro” meme per se is not enough to
covey the message or appropriately deliver the humour of the meme, the template on which it is
built and what gives memes a character that makes it a “unique genre” is central to its concept.18
In the absence of such a template, memes shall be no different than an orally delivered or written
message. Furthermore, the Exploitables are absolutely dependent on templates since it is the
unique combination of two or more pre-existing images that delivers the message of such a meme.
Therefore, it is the unique compound of the templates that gives the impression of a cohesive
image, which is the essence of exploitables.

Since most memes on the internet use pre-existing templates, their usage is subject to copyright
violation. However, a simple question arises then, why wouldn’t memes get the benefit of the
“parody exception” found in most international copyright agreement treaties? It must be
understood, that determining whether a published material can be qualified as “parody” requires

16
Limor Shifman, ‘Memes in a Digital World: Reconciling with a Conceptual Troublemaker’ (2013) JCMC, p. 363
17
Bradley Wiggins, ‘Memes as genre: A structurational analysis of the memescape’ (2014) UAFJ, p. 2
<http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.1021.9628&rep=rep1&type=pdf>
18
id
judicial scrutiny, however, mechanism of checking which depends on “recognition filters” cannot
carry out this task. The fact that intermediaries have the technical means to prevent access
to
content does not mean that they are the best placed to evaluate whether the content in question is
“illegal” or not. Such determination should be, first and foremost, a matter for an independent –
preferably judicial – body, and not a private intermediary. This is not simply a matter of
intermediaries not having the relevant legal expertise to make such judgments, but a more
fundamental matter of legal principle: i.e. that measures affecting fundamental rights should be
applied by an independent court rather than by private bodies. Moreover, many intermediaries 
are
likely to have their own conflicts of interest in such matters: the willingness of Google, for
example, to yield to takedown requests from copyright holders may well be affected by its own
commercial decision to develop a streaming service or
a product similar to iTunes. Therefore, any
similarity with material in the database, irrespective of its nature can be subject to being taken-
off.19

Article 19 of the Universal Declaration of Human Rights (UDHR)20 guarantees the
right to

freedom of expression in broad terms as a right that includes the right “to hold opinions without
interference and to seek, receive, and impart information and ideas through any media and
regardless of frontiers.” The International Covenant on Civil and Political Rights (ICCPR)21
elaborates upon and gives legal force to many of the rights articulated in the UDHR. Article 19 of
the ICCPR states that:

“Everyone shall have the right to freedom of opinion.
Everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through
any other media of his choice.”22

19
Christina Angelopoulos, ‘Sketching the Outline of a Ghost: The Fair Balance between Copyright and Fundamental
Rights in Intermediary Third Party Liability’ (2015) The journal of policy, regulation and strategy for
telecommunications, information and media, p. 72-96, 74
20
The Universal Declaration of Human Rights, Art. 19
21
The International Covenant on Civil and Political Rights, art. 19(2)
In September 2011, the UN Human Rights Committee (HR Committee), a treaty monitoring body
for the ICCPR, issued General Comment No 34 in relation to Article 19, which clarifies a number
of issues relating to freedom of expression on the internet.23 Importantly, it states that:

“Article 19 of ICCPR protects all forms of expression and the means of their dissemination,
including all forms of electronic and internet-based modes of expression.”

States parties to the ICCPR must consider the extent to which developments in information
technology, such as internet and mobile-based electronic information dissemination systems, have

dramatically changed communication practices around the world.25 In particular, the legal
framework regulating the mass media should take into account the differences between the print

and broadcast media and the internet, while also noting the ways in which media converge.26

Similarly, the four special mandates on the right to freedom of expression have highlighted in their
Joint Declaration on Freedom of Expression and the Internet of June 2011 that regulatory
approaches in the telecommunications and broadcasting sectors cannot simply be transferred to
the internet.24 In particular, they recommend that tailored approaches for responding to illegal
online content should be developed, while pointing out that specific restrictions for material
disseminated over the internet are unnecessary. They also promote the use of self-regulation as an
effective tool in redressing harmful speech. Therefore, online memes can be recognized as mode
of exercising the right to freedom of speech in the online format.

International bodies have also commented on liability regimes for intermediaries.
For example, in
their 2011 Joint Declaration on Freedom of Expression and the Internet, the four special
rapporteurs on freedom of expression recommended that:

“No one should be liable for content produced by others when providing technical services, such
as providing access, searching for, or transmission or caching of information;

23
General Comment No. 34, CCPR/C/GC/34, adopted on 12 September 2011
24
The 2011 Joint Declaration on Freedom of Expression and the Internet, June 2011, available at <http://
www.article19.org/data/files/pdfs/press/international- mechanisms-for-promoting-freedom-of-expression.pdf.> 

Liability should only be incurred if the intermediary has specifically intervened in the content,
which is published online;

ISPs and other intermediaries should only be required to take down content following a court
order, contrary to the practice of notice and takedown.”

Similarly, in 2011, the UN Special Rapporteur on freedom of expression stated that:

“Censorship measures should never be delegated to a private entity, and [...] no one should be
held liable for content on the internet of which they are not the author. Indeed, no State should use
or force intermediaries to undertake censorship on
its behalf.”25

International bodies have also criticised ‘notice and take down’ procedures as they lack a clear
legal basis. For example, the 2011 OSCE report on Freedom of Expression on the internet
highlighted that:

“Liability provisions for service providers are not always clear and complex notice and takedown
provisions exist for content removal from the Internet within a number
of participating States.
Approximately 30 participating States have laws based on the EU E-Commerce Directive.
However, the EU Directive provisions rather than aligning state level policies, created differences
in interpretation during the national implementation process. These differences emerged once the
provisions were applied by the national courts.”26

Therefore, given the practical realities of a “recognition filter” and its fundamental conflicts with
the right to freedom of expression, such a system is bound to violate the aforementioned universal
right. Given the extreme dependence of memes as a unique form of expression, there exists wide
consensus that it is a part of the right to freedom of expression on the internet, and the inability of
a content recognition software to differentiate between a parody and unique representation, the EU
copyright directive in effect seeks to impose a blanket ban on memes which fundamentally violates
the right to freedom of expression of the citizens of the European Union

25
Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression,
16 May 2011, A/HRC/17/27, para. 43
26
OSCE report, Freedom of Expression and the Internet, July 2011, p. 30