New laws passed in the European Union could mean the end of memes. The copyright directive holds internet platforms liable for content posted by users. This means that when a user posts a meme using a copyrighted image, for example, Instagram will have to either take it down or risk being sued.
SpongeBob SquarePants, for example, is an optimistic yellow sponge created by Nickelodeon. His adventures with his best friend Patrick the starfish and burgers at the Krusty Krab became cultural icons. SpongeBob's many moods have been captured in memes and paired with phrases such as "studying for finals like" and "when your phone is at 1 percent and you can't find the charger."
The new laws, approved Wednesday in the European Parliament, threaten the future of these SpongeBob memes in EU member countries. Article 13 in the directive demands that in order to operate in Europe, platforms like Instagram and Facebook must either come to an agreement with the rights holders like Nickelodeon or take down the content. The goal of the directive is to hold tech companies accountable for what people post.
Axel Voss, the German member of Parliament who led the committee that championed the laws, says they aren't aimed at users, but at social media and tech companies.
"Internet platforms, they have a tendency for circumventing every rule and trying not to pay something for the content they are using," Voss said in a telephone interview from Bonn, Germany.
"We should safeguard the rights of the rights holders also in the digital world," he said.
When the EU issues a directive like this one, it still must be implemented in each member country's laws, a process that can take months. But as the directive is litigated in European countries, it could result in the blocking of memes and aggregated news in the U.S. as well.
Danny O'Brien, the international director of the San Francisco-based Electronic Frontier Foundation, said, "One of the reasons why these memes and remixes exist now is because companies haven't seen it as worthwhile to try and push back against them and now might be their opportunity to sort of establish that."
"Even before it becomes law, we might see increasingly tight filters and increasing attempts by rights holders to control the remixes of their content," O'Brien said.
In the United States, fair use principles often protect memes from copyright infringement lawsuits. O'Brien explained that SpongeBob memes would generally be protected by fair use under U.S. law. Fair use protects creators if the content doesn't compete for the same consumer as the original. Nickelodeon created the SpongeBob character as cartoon entertainment for children, not to make social statements for adults living in the modern world.
"The emotion and the idea that the meme conveys is really only very tangentially connected to the business model of SpongeBob SquarePants," O'Brien said.
"Existing copyright law did not anticipate this effect, did not anticipate that that's how people would communicate in the future. But they do, and it's kind of ridiculous to consider that in order to protect our existing model of copyright or even expand it, we should silence this form of communication and expression."
Other critics say the law would go too far in censoring content on the internet. Javier Ruiz is the policy director of the Open Rights Group, a U.K.-based non-profit supporting free expression on the internet.
"A meme can be a bit tricky," he said, "but leaving aside the technical possibility and the costs for all this, in principle, it could force the automated takedown of memes on basis that they include copyrighted material."
But Voss, the member of Parliament leading the new law, says critics are trying to drum up fears about internet content filters.
"Everyone is reacting at some bad words around and what I would consider is not really in the text," Voss said.
"From my opinion, this never has been an upload filter," he said, "it's just recognition software to accompany the rights of the rights holders."
The law also mandates that internet news aggregators like Google News pay publishers in order to link to their articles. The proposal aims to help publishers of original content share the revenue earned by aggregators.
Voss said this part of the law will help support the traditional newspaper business survive a loss of print subscribers and advertising with the move of news content to the internet.
"Here in Europe we have a kind of a critical situation of surviving some of the press, of the press publishers," Voss said. "So this is what we have in mind to support them a little bit."
The problem is that content aggregators could decide not to repost certain publishers' content to evade paying. Some European countries have already tried implementing a link tax to support their local publishers and it backfired.
Mike Linksvayer, the vice president of Creative Commons, said, "There's been a lot written about, in the context of link tax, looking at the experiences in Spain and in Germany about how smaller publishers have been affected. Basically, it turned out that the smaller publishers were more dependant on referrals from web search than were larger publishers who have a lot more organic traffic of people just coming to visit their sites."
"So when Google decided we're just going to stop showing the result of media from Germany and Spain, rather than deal with the link tax legislation that was passed in those two places, it really hurt small publishers," Linksvayer said.
In essence, the law aims to hold all kinds of internet platforms accountable to copyright holders ranging from The New York Times, to Instagram, to musicians. This could have very tangible effects on creators and consumers in the EU and the U.S.
"They would probably have a substantial impact on users in the U.S.," said Linksvayer. "This would all be litigated, but would apply to many U.S.-based platforms because they have so many EU customers."
"There are certainly people in the U.S. who would like to, if this succeeds in the EU, press for more control in the U.S.," Linksvayer said.
Javier Ruiz at Open Rights Group said, "It could influence Americans because, for many internet platforms, it wouldn't make sense to have a separate system for the U.S. for Europe. … So you could find that the U.S. citizens could find themselves also blocked when they upload materials."
Content creators in Europe have been weighing in on the directive in the form of memes. U.K.-based account @friendlyneighborhoodspdrmeme opposes the directive and has posted multiple memes about the new laws.
James Bramwell, one of the administrators of @friendlyneighborhoodspdermeme, shared his opinion over Instagram direct message. "If anything it's free advertising for any companies. People should have the right to freedom to create things and to parody," Bramwell said.
Another administrator of the account, Scott Phillis, is concerned about the broader effects of the laws. "If the companies start censoring memes for the EU, they might expand the operation to outside the EU," Phillis said.
Many of the effects of the copyright directive on memes are yet to be determined. But the passing of the directive brings the internet one step closer to meme takedown. As a frazzled SpongeBob meme might say, "When you realize you might not exist in the future."