The EU should have proposed a mandatory, EU-wide user-generated content exception that would give users and creators the right to engage with cultural works to create and share new materials for non-commercial purposes everywhere on the Internet. Instead, it proposed language that does not fully and clearly protect UGC the same way across the EU.
Making a remix out of music of your favorite artists, participating in a lip sync, or creating a funny gif are everyday online practices. Everyone who uses the internet has seen, sent, created, or received a funny meme that made them laugh. While these activities are widespread cultural practices, they may not be permitted in every EU country.
Indeed, there is no copyright exception in the EU specifically allowing the use of copyrighted materials to create user-generated content. This means that users and creators have to rely on other copyright exceptions, such as the parody exception or a wide-reaching quotation exception, when engaging in those practices. The problem is that the parody exception is also not implemented in every EU country, and the quotation exception may not be enough to deal with all types of user-generated content, such as audio-visual memes and remixes.
This is an area where the existing legal framework is completely out of touch with the reality lived by millions of Europeans. Not only does the situation create legal uncertainty and cross-border problems, it also undermines the social acceptance of copyright as a whole.
The EU should propose a user-generated content exception that would align the national laws of the EU countries with our online daily reality. This exception should grant the right to use and/or remix parts of copyrighted works and other subject matter in new materials for non-commercial purposes, and should work the same way across the EU in order to give legal certainty to those sharing user-generated content online.
Unfortunately, despite the clear need for such a provision and efforts by numerous lawmakers to introduce it into the text of the proposed Directive, such an exception has failed to make it into the final text. Instead, during the trilogues, it was agreed to include in Article 13 language that would require Member States to implement the existing optional quotation and parody exceptions. While Member States will only be required to implement these exceptions so that they apply to user-generated content that is shared on the platforms covered by Article 13, the affected Member States should use this opportunity to fully implement the quotation and parody exceptions.This would be a step towards ensuring that users rights receive uniform protection across all platforms in the EU.
We currently do not have a UGC exception at the European level. Some uses (e.g. memes) might fall under copyright exceptions covering purposes such as illustration, criticism, review, caricature, parody or pastiche. However, those national exceptions do not exist in every EU country and they may differ from country to country. Thus, whether memes, remixes and other types of user-generated content are covered by such copyright exceptions depends on the wording of each national law. While users in one country might have the right to make and share certain types of UGC, users in other country might not have the same right. Since the situation substantially differs across EU Member States, online sharing practices face legal uncertainty and might constitute copyright infringement in some parts of the EU.
Despite the multiple demand to legalize these daily online practices, the European Commission did not propose a UGC exception.
The Council did not include a UGC exception in its May 2018 negotiation mandate. In early 2019 the German government published a "non-paper" in which it proposed the addition of a mandatory remunerated UGC exception in Article 13. In the European Parliament multiple MEPs from across the political spectrum proposed amendments that would have added a UGC exception to the Directive. A compromise amendment that would have proposed adding a UGC exception was narrowly defeated in the vote in September 2018. During the same vote MEPs did however adopt a compromise amendment that added a number of recitals that stress the need for a UGC exception.
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