Brexit, memes and the future of UK copyright law

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After years of political wrangling, last week the UK officially left the European Union.

Although headlines were naturally engulfed with Brexit news of woe or celebration, an interesting development regarding the EU’s new directive on copyright also made the headlines. 

The European Union Directive on Copyright in the Digital Single Market (or “Copyright Directive” for short) has proved extremely controversial, with critics stating it will bring fundamental and detrimental changes to online content.

But last week the debate continued, with the Universities and Science Minister Chris Skidmore confirming that the UK will not implement the Copyright Directive following its departure from the EU.

What is the Copyright Directive?

UK copyright law gives the owner of copyright in a work the right to prevent it being copied by others. Copyright is an automatic right – not requiring registration – and ordinarily vests in the original author, or creator, of the work.

“Copying” includes communicating the work to the public by making it accessible on a website. Consequently, the widespread use of the internet has completely transformed how content is distributed and now copyright infringement has become an everyday problem.

The objectives behind the Copyright Directive is to create a fairer balance for copyright protection between artists and online platforms. This legislative change is seen as a necessary step for the EU to make “copyright rules fit for the digital age”. The Copyright Directive would limit how copyrighted content can be distributed and used and hence provide better protection and strengthened rights to authors of original works.

Why is it controversial?

The Copyright Directive has received backing from celebrities such as James Blunt and David Guetta who claim it better protects artist’s original work, but last year Boris Johnson voiced concerns about the law; claiming that it would be “terrible for the internet”.

The primary reason the Copyright Directive is considered to be so controversial is the provisions included in Article 17 (previously Article 13). Article 17 – colloquially known as the “meme ban” – requires online platforms to take more responsibility for copyrighted material being shared on their platforms. Memes, short clips and GIFs are heavily reliant on copyrighted material of TV and films.

Placing an obligation on service providers to obtain appropriate permissions from the holder of the relevant copyrighted works prior to its use on their platforms represents a significant shift in responsibility from the current regime (which provides that companies such as YouTube are not liable for users posting copyrighted content).

Although Article 17 has undergone a number of changes to protect the use of memes and similar content (including ensuring users can continue to upload content “for purposes of quotation, criticism, review, caricature, parody and pastiche”), there remains significant opposition.

Despite amendments, concerns remain over platforms filtering content and restricting the freedom of expression of users in what they can upload. As the onus is placed on online platforms to filter breaches of copyright to prevent liability, it may lead to stricter automated filtering systems which unnecessarily restrict content. For example, a home video may inadvertently pick up music in the background which has copyright attached causing it to be blocked.

Post Brexit Implementation

The implementation of the Copyright Directive has been overshadowed by the all-encompassing legal changes the UK will experience after departing from the EU. Nevertheless, the issue resurfaced on 21 January 2020 when Chris Skidmore MP confirmed that:

“the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.”

Whilst this statement provides clarity that the Government will not be implementing the Copyright Directive, the debate over how the UK protects copyrighted works in the digital environment is far from resolved. The Government has in the past been supportive of the overall aims of the Copyright Directive, and so it remains to be seen whether the UK would selectively implement parts of the Copyright Directive and choose to ditch the more controversial provisions. The creative industry may be dismayed by the current Governments direction but there are likely many tech companies breathing a small sigh of relief.

Posted in Authors, Corporate Law.