The challenges of memes in copyright law: between humour and value(s)

This paper analyses the legal issues concerning the internet memes phenomenon, by evaluating in particular the current EU copyright framework. The search for a definition and copyright classification of memes cannot produce clear results. This is due to the nature of the pre-existing contents that memes usually use, and the fact that the absence of licences may entail infringements where no exception or limitation is applicable. Thus, memes easily imply copyright-relevant acts. On closer inspection, memes seem to occupy a grey area between reproduction, adaptation, transformativeness, and even authorship and originality. This uncertainty, combined with the discrepancy between law and the practice of online communities – which seems to better address the nature of internet memes as ‘commons’ – constitutes a challenge for copyright.

To assess the legal framework, this paper argues the existence of three values hidden behind memes. First, a fundamental-rights-related value, which notably involves the freedom of expression of memes creators, and has an impact on democracy. Secondly, memes represent a remarkable example of the economic value that contents may acquire in the digital environment. In particular, they can lead to indirect benefits (e.g., ‘meme marketing’), create new digital jobs or behave as assets. Thirdly, memes have a cultural value, since not only can they be vehicles for cultural contents – as the promotion of cultural heritage – but also they represent a peculiar kind of ‘contemporary creativity’ that is itself culture. These values together emphasise the relevance and the potentialities of memes, and therefore the need for them to be clearly lawful.

On this basis, this research claims that the current EU copyright framework does not offer the certainty of the lawfulness of memes, and thus it undermines their values. Notably, while specific exceptions may apply in narrow cases, there is currently no general defence for memes. Indeed, the parody exception after Deckmyn is still critical – especially for the concept of fairness – and similarly the quotation exception is debated among Scholars. Consequently, they might only be applicable to some memes. Furthermore, the new EU intermediaries’ liability provision (Article 17 CDSM Directive) was initially perceived as a “Memes ban”, but despite the reassurances, its safeguards are not enough. Ultimately, memes fall into the flexibility-certainty debate on exceptions and limitations and this paper argues the importance for EU lawmakers to explore new ways for addressing the issue of this communitarian and valuable phenomenon to reduce the gap between law and practice. Accordingly, it proposes some possible solutions that may be taken into consideration, such as the adoption of a 'right to meme', a more flexible limitation, or a specific exception.

This working paper is a part of the "Outstanding LLM Dissertations 2022".