A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).

The Post-DSM Copyright Report: The Meme Supplement

Today marks the fifth anniversary of the adoption of the DSM Directive. To celebrate the occasion, we are releasing a supplement to our series of blog posts on trends in national copyright policy following the DSM implementation.

The Post-DSM Copyright Report series analyses the national transpositions of all Member States that have finalised their national implementation (i.e. all but one Member State) to understand the influence of our proposals, identify areas of convergence and divergence, and assess the impact on users and the Public Domain.

In previous blog posts, we discussed the national transpositions of research rights, education rights, the Public Domain safeguard and cultural heritage rights, the press publishers’ right, and Article 17. In this supplement, we present the results of our comparative analysis on the implementation of the mandatory exception for the purpose of caricature, parody or pastiche.1

Background

The use of automated filtering tools (so-called “upload filters”) to perform copyright content moderation under Article 17 entails significant risks to freedom of expression, because determining whether a certain use is lawful or not often requires an assessment of the context in which the content is used. The existing tools are notoriously flawed and, in particular, unable to recognise humour, or understand if a match falls under the caricature, parody or pastiche exception.

For these reasons, during the discussions leading to the adoption of the DSM Directive, many feared that Article 17 (ex-Article 13) would kill the internet and some even initiated a campaign to save the meme. The Commission tried to reassure civil society that the EU was not trying to ban memes, but it was only during the trilogue negotiations that the EU legislators conceded that the risks to the fundamental freedoms of online users needed to be further protected. Among the ex-ante and ex-post users’ rights safeguards introduced in that final stage of the process is a new mandatory exception for the purpose of caricature, parody or pastiche (Article 17(7) second paragraph).

A copyright exception for purposes of caricature, parody or pastiche was already foreseen in Article 5(3)(k) of the InfoSoc Directive, but it was deemed optional and was thus not implemented in all Member States. With the adoption of the DSM Directive, it became mandatory for all Member States to have such an exception in place, at least in the context of certain online platforms.

More than half of the EU did not have an exception for parody, caricature or pastiche, prior to DSM

Despite having a strong fundamental rights basis, the copyright exception for purposes of caricature, parody or pastiche set in Article 5(3)(k) of the InfoSoc Directive had only been fully implemented, prior to the implementation of the DSM Directive, in nine of the 26 Member States covered in this analysis:

  • Pre-DSM exception for caricature, parody or pastiche: BE, CR, EE, FR, LU, MT, NL, RO, SK
  • Pre-DSM exception for caricature or parody, but not for pastiche: CZ, LV, SL
  • Pre-DSM exception for parody, but not for caricature or pastiche: ES
  • No pre-DSM exception for caricature, parody or pastiche: AT, BG, CY, DK, FI, DE, GR, HU, IE, IT, LT, PT, SE

The fact that no statutory provision existed in many Member States does not mean that such uses were unlawful. As we argued before, the direct application of national standards of protection of fundamental rights is possible when, due to the absence or insufficiency of legislative action, the national copyright law cannot be deemed to have properly internalised the rights enshrined in the EU Charter of Fundamental Rights. And reports by national experts show that, prior to the DSM implementation, the national courts of various Member States where such an exception did not exist would in fact apply fundamental rights (such as freedom of expression) directly to cover such uses.

Majority introduces exception for parody, caricature or pastiche with the DSM implementation

With the implementation of the DSM Directive, the landscape changed dramatically. Out of the 26 Member States analysed, only Czech Republic, Latvia and Spain failed to implement an exception covering all 3 purposes:

  • Implements exceptions for caricature, parody or pastiche: AT, BG, BE, CY, CR, DK, EE, FI, FR, DE, GR, HU, IE, IT, LU, LT, MT, NL, PT, RO, SK, SL, SE
  • Implements exceptions for caricature and parody, but not for pastiche: CZ, LV
  • Implements exceptions for parody and pastiche, but for for caricature: ES

Six Member States only allow caricature, parody or pastiche on OCSSPs

Austria, Cyprus, Denmark, Greece, Italy and Sweden limit, however, the exception to uses made on online content sharing service providers (or OCSSPs).

Under Article 17(7), Member States are required to ensure that users in each Member State are able to rely on the exception for parody, caricature or pastiche “when uploading and making available content generated by users on online content-sharing services”. In other words, Article 17 only requires the implementation of the exception in the context of uses on OCSSPs.

That does not mean that Member States are not required by other sources of EU law to implement the exception for caricature, parody or pastiche for uses beyond OCSSPs. According to the CJEU case law, Member States might simply have no discretion as to whether to implement or not the “optional” exceptions that are aimed to observe fundamental freedoms.

Be it as it may, one would have expected from “a rational national lawmaker” to fully implement the exception for caricature, parody or pastiche, for online and offline uses, for OCSSPs uses and for uses on any other online platforms. After all, referencing other works in one’s humorous or creative expressions is not only relevant in the context of memes, but one of the ways EU citizens engage with culture.

Conclusion

This review of the national implementations in 26 Member States reveals that, five years after the entry into force of the DSM Directive, the EU does not yet offer a harmonised treatment of caricature, parody and pastiche, as envisioned by COMMUNIA’s policy recommendation #6 and policy recommendation #7.

The failure of the Czech Republic and Latvia to cover pastiche within their exceptions is particularly problematic because the pastiche exception appears to take into account artistic freedom considerations that are not adequately safeguarded by parody and caricature, raising even the question if it can be qualified as a general exception for artistic freedom. In our opinion, the omission is relevant enough for the Commission to initiate infringement proceedings against those countries, as is the omission of Spain to cover caricature.

The fact that six Member States failed to extend the exception for caricature, parody or pastiche to uses beyond the for-profit platforms covered by Article 17 shows that EU copyright law, as it stands, has yet to exhaust all the fundamental freedom considerations that the EU Charter of Fundamental Rights imposes on its Member States. The EU legislator can certainly do more to achieve a fundamental-rights compliant copyright framework across the EU, and to actually save the memes and other expressions of fundamental freedoms across territories, platforms and AI-powered tools.

Endnotes

  1.  For this comparative analysis, we have relied on the answers by national experts to the questionnaire prepared by Christina Angeloupoulos, which has been released as an annex to the Angelopoulos Report.
A satire on the art business in which art experts and dealers who assess paintings are depicted as donkeys. After the drawing by Trémolières in the Hessisches Landes Museum in Darmstadt (cropped).
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