Memes and parasites: analysing discourse on the Copyright Directive

Abstract

The Directive on Copyright in the Digital Single Market has been a subject of heated and highly polarised debate, and an object of intense lobbying from the outset. It grasped the attention of a multitude of stakeholders, including tech companies, publishers, platforms, creators and SMEs, and urged thousands of people to go out on the streets in a sign of protest against what they believed was the “end of the internet as we know it”. The debate was often emotional, and involved such terms as “meme ban”, “censorship”, “upload filters”, “link tax”, or a puzzling “value gap”. However, amongst those emotive catchphrases lies a foundational discussion on the purposes of copyright law, and how its relationship with artists, technology, media, news, culture and citizenship unfolded.

In this presentation, we investigate how discourse developed during the negotiation phase of the Directive, focusing on the most controversial provisions: draft Articles 11 (press publishers’ right) and 13 (platform liability). Focusing on the period between publication of the proposal by the Commission in September 2016, and the adoption of the Directive by Parliament and Council in March/April 2019, we juxtapose these changes with an analysis of (1) parliamentary debates, (2) press releases by the Commission, Parliament and Council, and (3) 80 stakeholder submissions that sought to shape the evolving legislation.

Through discourse analysis, we uncover four themes that appear to dominate the debate: (a) Technocratic (responding to tech development by updating copyright framework), (b) Value gap (redistribution of revenues to benefit creators and producers), (c) Internet freedoms (freedom of expression and user interests), and (d) European (promotion and protection of European culture and identity). Finally, we show that changes in the Directive’s text can be associated with the appearance and evolution of these themes, but that these changes are in form only, rather than in substance.

We show that changes in the draft legislation can be associated with the appearance and evolution of these topoi in the debates, but that changes in the proposed legal language tend to be obfuscating, rather than addressing the issues. Controversial language such as “content identification” (associated with filtering) were removed and safeguards were offered, but these remained meaningless (in law) or open to different implementations.

Presentation is based on the paper “Copyright in the Digital Single Market: A discourse analysis of law making (2016-2019)” by Ula Furgal, Martin Kretschmer and Amy Thomas (work in progress).

Biographies

Martin Kretschmer is Professor of Intellectual Property Law in the School of Law, University of Glasgow, and Director of CREATe (www.create.ac.uk, an interdisciplinary research centre established in 2012 jointly by AHRC, EPSRC and ESRC). From 2000-2012, he was Director of the Centre for Intellectual Property Policy & Management (CIPPM) at Bournemouth University (www.cippm.org.uk). From 1996-1999 he was a postdoctoral research fellow at Cass Business School, City University, London (ESRC Media Economics and Media Culture programme).

Ula Furgal is a postdoctoral researcher at the CREATe Centre, University of Glasgow. Prior to coming to Glasgow, Ula was a doctoral researcher at the European University Institute in Florence, Italy. She defended her PhD thesis exploring the effects of copyright’s expansion into the news online on the EU copyright framework, in February 2020.

Amy Thomas is a Research and Teaching Associate and PhD Candidate at the CREATe Centre, University of Glasgow. Amy also acts as sub-editor of the Copyright Evidence Wiki (www.copyrightevidence.org), collecting empirical studies about copyright.