In 2022, Demetrious Polychron, a US author, created and released his own continuation of the beloved ‘The Lord of the Rings’ series by J.R.R. Tolkien. Following the debut of Amazon’s prequel series ‘The Rings of Power’, Polychron took legal action in April 2023 against both Tolkien’s estate and Amazon. Polychron alleged that their series had used elements from his work, constituting copyright infringement. However, the case brought by Polychron was dismissed after a Californian judge concluded that the author himself had infringed copyright by profiting from a work that directly utilised characters and storylines owned by the Tolkien estate and Amazon.
In a subsequent turn of events in June 2023, Tolkien’s estate initiated a separate lawsuit against Polychron. Their claim centred on the fact that the author had published a derivative work without the necessary authorisation from the owners of ‘The Lord of the Rings’ intellectual property. The lawsuit against Polychron proved successful, resulting in the presiding judge issuing a permanent injunction against the author.
This injunction prohibits Polychron from publishing or selling his derivative work and mandates the destruction of all existing copies of the author’s work.
Authorship protection in Australia
In Australia, the Copyright Act 1968 (Cth) safeguards published and unpublished books as ‘literary works’. When someone creates a literary work, like a book, they become the owner for a duration of time. This ownership grants them the sole right to copy, publish, modify, or share their work with the public. There is no need for authors to officially register their work to secure copyright protection for it.
For a literary work to gain copyright protection in Australia, a few criteria must be met:
the author should be an Australian citizen,
the work must have been initially published in Australia, and
it needs to be an original creation.
If someone carries out actions that fall within the exclusive rights granted to the copyright owner without their permission, they could be infringing upon the copyright of the original creator. This means reproducing, publishing, adapting, or sharing it with the public can lead to a copyright infringement claim.
If you would like guidance regarding potential copyright infringement or the scope of your copyright protection, please contact us.
Hardingham, an independent real estate photographer, took photos of properties for real estate agents under oral contracts. The agents uploaded the photos to realestate.com.au (REA). REA then provided the photos to RP Data, a service that allows real estate agencies to use photos for property marketing campaigns.
When agents uploaded the photos to REA, they accepted clickwrap terms which gave REA “an irrevocble and perpetual licence to use the content … for any purpose related to our business”. RP Data argued that this licence meant it was able to use the photos once permitted to do so by REA. Hardingham contended that the licence had to be subject to a limitation so that it ended once the property was sold or leased.
At first instance Thawley J found that the sub-licence from REA to RP Data should be permitted because it was inferred from the parties’ conduct and should be implied to give business efficacy to the arrangements. It was not subject to any time limit.
On appeal to the Federal Court, the Full Court found that they were not satisfied that the terms should be implied or inferred, and that any implied licence did not extend beyond the property marketing campaign.
In December, the High Court overturned the Federal Court’s decision. The question, in this case, was what a reasonable person would consider, based on the parties’ words and conduct.
The Court found that there was nothing in the oral contracts, between Hardingham and the original real estate agencies, to suggest that the photos could not be used after the campaign. They all knew that the photos uploaded to REA and RP Data remained there after the completion of the campaign and on a history tab for the property. That had been the case for a number of years.
So, the real estate agencies were capable of licensing the photos to REA on its standard terms, and REA was capable of licensing them to RP Data. Accordingly, RP Data did not infringe Hardingham’s copyright.
This case has important implications for photographers and other content creators, and is an important reminder to put clear, written agreements in place when licensing copyright and other IP. You can exclude implied terms and make sure that the parties’ expectations match. If you would like assistance with documenting your copyright agreements, contact us.
This year we are celebrating NAIDOC Week from 8 – 15 November 2020. NAIDOC Week was once a day celebrated by Aboriginal and Torres Strait Islander peoples but has now become an important week for all Australians to celebrate and appreciate Aboriginal and Torres Strait Islander people, history and culture.
The NAIDOC Week theme for this year is ‘Always Was, Always Will Be’ which focuses on Aboriginal and Torres Strait Islander peoples’ continuous connection to country and culture. The richness and survival of Aboriginal and Torres Strait Islander culture is essential. However, Australian law fails to recognise properly the importance of Aboriginal and Torres Strait Islander culture and Aboriginal and Torres Strait Islander peoples’ rights to protect their intellectual property, which is also known as Indigenous Cultural and Intellectual Property (ICIP).
ICIP encompasses different aspects of Indigenous culture, including, stories, symbols, sacred sites, dances, ceremonies etc. While you could write a story and it would fall under copyright, if it meets the specific requirements under the Copyright Act 1968 (Cth), there are roadblocks which prohibit ICIP from being protected by copyright. In particular, the requirements of ‘material form’ (e.g. written down or recorded) and there being an ‘author’ poses problems as Aboriginal and Torres Strait Islander stories are told orally, and a community may be the owner of a story rather than a person. The duration of copyright which can last for 25, 50 or 70 years after the creator’s death, the first year of publication/broadcast, since being made or made public, depending on the work is also problematic for ICIP. We know that Aboriginal and Torres Strait Islander people and culture have been around for more than 65,000 years, which means that particular ICIP may be older than the current duration period of copyright.
Aboriginal and Torres Strait Islander people and various organisations have advocated for the recognition of ICIP in Australia. Dr Terri Janke and Company have done great work to educate people about the importance of recognising and respecting ICIP as well as protocols to follow regarding the use of ICIP. Also, in 2016, the Arts Law Centre of Australia, Indigenous Art Code and Copyright Agency started the ‘Fake Arts Harms Culture campaign’, which highlighted issues with fake Aboriginal and Torres Strait Islander art and the lack of protection of ICIP. In September 2020, the ‘Australian Government response to the House of Representatives Standing Committee on Indigenous Affairs—Report on the impact of inauthentic art and craft in the style of First Nations peoples’ recognised the problems with current intellectual property laws and the need start looking into the development of ICIP legislation. While the Government has said this will be a long process, hopefully, we will see the introduction of ICIP laws sooner rather than later.
Author: Sharna White, Graduate Lawyer
influence legal acknowledges the Traditional Custodians of Country across Australia. We recognise the strength, resilience and capacity of Aboriginal and Torres Strait Islander Peoples and pay respect to Elders past and present.
Whether it is a photograph you would like to use on your website, or an artwork you wish to print onto merchandise, it’s always best practice to seek permission from the copyright owner to use their work. What happens when you want to use a work protected by copyright and cannot find the copyright owner, even after making every effort to find them? These are known as orphan works.
Orphan works and how the Copyright Act deals with them
Currently, the Copyright Act does not provide any specific protection for those using orphan works. If a copyright owner turns up even after the user has made reasonable efforts to find them, then the user is at risk of an infringement claim.
The Government indicated that the scheme will benefit the copyright owner and the person using an orphan work. The proposed amendment will allow orphan works to be used without the risk of copyright infringement provided that the person intending to use the work conducts “a reasonably diligent search” and attributes the creator “as far as reasonably possible”.
If the copyright owner does appear then the person using the orphan work will be entitled to use the work, if both parties can agree on “reasonable terms”. If this cannot be achieved, the copyright owner can apply for an injunction to prevent future use of the work.
These reforms will be an area to watch this year, as the Government anticipates the release of an exposure draft bill later this year. It will be interesting to see if and how “a reasonably diligent search” is defined, as they have suggested that specific sectors and industries develop policies about a “diligent search”.
Our last article looked at the issue of control of copyright on social media platforms following the recent case, Sinclair v Mashable.
Only 2 months after the Sinclair decision, the U.S. District Court for the Southern District of New York has revised its position in a new case, McGucken v Newsweek.
A tale of two cases
In very similar conditions to Sinclair, Newsweek had published an article featuring an embedded Instagram post of photographer, Elliot McGucken, without his permission.
Relying on the ruling in Sinclair, Newsweek argued that because the image was posted to McGucken’s ‘public’ profile, it could rely upon Instagram’s terms of service.
However, despite the Sinclair decision, the court refused to dismiss McGucken’s case. While the court did accept that Instagram has the right to sublicense publicly posted photographs to other users, it concluded that there was insufficient evidence to prove that Instagram had sub-licensed the photo to Newsweek.
Instagram weighs in
Instagram has released a statement clarifying its position on the issue, stating:
“While our terms allow us to grant a sub-license, we do not grant one for our embeds API… Our platform policies require third parties to have the necessary rights from applicable rights holders. This includes ensuring they have a license to share this content, if a license is required by law.”
So, the court’s decision combined with Instagram’s statement on the issue has now emphatically altered the legal position set out in Sinclair.
What does this mean for you?
Photographers and other creators wishing to have stronger control over their copyright when sharing their photographs online will welcome this development.
However, this decision also serves as a strong warning to businesses (especially digital media outlets) to ensure they obtain the correct permissions before using or embedding a photographer’s work onto their website.
In a recent article we looked at how important it is for artists and content creators to ensure they have a written, signed contract for any licence agreement. A recent New York case highlights the strict licensing terms on social media platforms and the trade-off between exposure for your content, against control of your works.
Sinclair v Mashable – what happened?
Stephanie Sinclair is a renowned photographer whose portfolio includes works featured in The New York Times, Time Magazine and National Geographic. Like many creators, Sinclair uses Instagram as a platform to share her works.
Sinclair uploaded one of her photographs (an image of a mother and child in Guatemala) to her Instagram account. She was then contacted by digital media and news website, Mashable, offering $50 in exchange for a licence to use the photograph for a story on female photographers. Sinclair declined the offer.
Undeterred by the refusal, Mashable went ahead and used it anyway, taking advantage of Instagram’s API to embed her post of the photo in their website. Mashable didn’t make a copy of the photo – just linked back to the photo on Instagram – but the overall effect was the same. When Mashable refused to remove the embedded post, Sinclair commenced proceedings for copyright infringement.
A not-so picture perfect judgment
On face value, it might seem fairly straightforward that by using Sinclair’s copyright work without her permission, Mashable had infringed her copyright.
However, in this case, the devil was in the details – specifically, in Instagram’s Terms of Service (TOS).
Judge Kimba Woods found that by creating an Instagram account, Sinclair had agreed to Instagram’s TOS. These TOS included a term granting Instagram a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide licence to the Content.”
The judge determined that when Sinclair posted the photo to her public Instagram profile, she had “granted Instagram the right to sublicence the photograph, and Instagram validly exercised that right by granting Mashable a sublicense to embed and display the Photograph on their website.”
Even though Sinclair had refused to license the photo directly, Mashable could still validly obtain a sub-license from Instagram to embed the photo.
Private v public
Sinclair argued that Instagram’s TOS were unfair. Users must decide between either:
choosing to have a private profile and losing out on the advantages of sharing their works on the biggest photo sharing platform in the world, or
choosing to have a public profile in exchange for surrendering rights in their uploaded content to Instagram.
In her judgment, Judge Woods acknowledged the difficulty of this position, but determined that Instagram’s TOS were binding:
“Instagram’s dominance of photograph- and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that [Sinclair]’s dilemma is a real one… But by posting the photograph to her public Instagram account, Plaintiff made her choice. This court cannot release her from the agreement she made.”
What does this mean for you?
As an artist or content creator, it is likely that you will rely on social media as a major platform for sharing your work. And while it is incredibly important to share your work with the public, there is another very important thing to consider; and it’s also one of the most ignored – the fine print.
The terms and conditions for online platforms, including Instagram, often contain broad terms applying to any content you upload – including the right to sub-license to third-party websites.
Sinclair’s case serves as a great reminder that when signing up to any online sharing platform, it is always worth taking the time to understand the terms you are agreeing to. You may not be able to negotiate the terms, but you can choose which works you share and make sure you retain practical control over valuable content.
As an artist or content creator, licensing your artworks and content can be one of your most important and rewarding streams of income. As well as getting your work out there, ensuring that you are paid appropriately and your works are protected arejust as important.
Unfortunately, many artists and creators often make unwritten or informal arrangements when licensing their copyrighted works to others. Whether this is based on the assumption that it’s unnecessary to enter into a contract, that it’s safer to work under an informal agreement, or simply trusting that the licensee will do the right thing, operating without expressly written terms can pose significant risks for artists and creators .
The recent case of Hardingham v RP Data Pty Ltd demonstrates just how easily issues can arise from informal or unwritten copyright licencing arrangements – especially if your works are being uploaded to third party websites.
Hardingham v RP Data – what was the issue?
Mr Hardingham is a professional photographer who provided photographs and floorplans to real estate agencies to be used in marketing campaigns for the agencies’ listed properties, including for listings on realestate.com.au, which had standard terms for agents. These terms include a broad licence of uploaded content.
However, these photographs and floorplans were then reproduced and uploaded by a third-party company, RP Data, under a separate sub-licensing agreement with realestate.com.au.
Mr Hardingham commenced court proceedings claiming that RP Data had infringed his copyright in his images and floorplans.
Well if Hardingham didn’t license the works to RP Data, they shouldn’t be able to use his works, right?
Unfortunately for Mr Hardingham, this was not the case.
While it may have been his initial intentions that the licence granted to the agencies was for house marketing purposes only, and that no sub-licence could be granted, the court took a different view.
As there was no formal written contract between Hardingham or his company and the agencies, the court relied on evidence surrounding the context and the commercial arrangements between each of the parties. The court said that these factors meant that realestate.com.au had a licence, and was able to grant a sub-licence to RP Data. This right was either:
inferred from the conduct of the parties’, or
implied into the agreements in order to give business efficacy to the agreements.
The lack of any formal or written licensing agreement between Mr Hardingham and the agencies was a crucial factor that allowed for the legal sub-licence of the works.
Get on the same page – literally!
Without a formal licensing agreement, you are putting yourself at the risk of your works or content being used or reproduced without your permission. As a result, you can incur significant financial loss by missing out on important licensing fees you would otherwise have negotiated for.
So, if you are an artist, creative or content creator and are planning to license your copyright works to others, you should always make sure you have the crucial terms of your licence arrangement set out in a written, signed contract.
If you’d like to put together a standard licence for your works, contact us.
The repeal is set to come into effect on 13 September 2019.
What’s section 51(3)?
Section 51(3) covered contractual terms in licences and assignments of
patents, designs, copyright and EL rights, and specified agreements in relation
to trade marks.
The section provided a limited exemption for IP rightsholders, to allow
them to make arrangements that would otherwise be prohibited under the CCA. So,
for example, a generally anti-competitive term, or a cartel provision, which
met the requirements of section 51(3), would be permitted.
The background of the section was the perceived conflict between the
monopoly rights of IP rightsholders, and the competition provisions under the
CCA, meaning that IP rights needed this exemption.
What’s the background to the changes?
Section 51(3) has had a life under the microscope,
with consistent review and advocation for its repeal for quite some time. It
was reviewed in the Hilmer Report, as well as in a number of subsequent
The report recommended the repeal of section 51(3) on the basis that IP
rights did not have significant competition implications, and issues only arose
where there were few substitutes or where IP rights aggregation could create
The Commission considered that there would be increasing benefits to
repeal, especially in the pharmaceutical and communications markets, as the
level of licensing and cross-licensing rises in the future.
Where does this issue arise?
There have been very few cases where section 51(3) has been considered –
in fact the ACCC stated in its 2016 submission to the Productivity Commission
that it was not aware of any cases where section 51(3) had been used
successfully as a defence.
That said, it’s anecdotally clear that IP rightsholders have relied on
knowing that section 51(3) was there, in structuring agreements, and there are
several situations where regulators and courts have considered a tension
between IP rights and competition regulation. These include:
dealing – such as where rightsholders impose
restrictions on distributors about their permitted suppliers or customers. For
example, in Transfield v Arlo [(1979)
144 CLR 83 at 108, the Court considered whether Transfield was
obliged to sell exclusively promote and sell Arlo’s steel pole. Wilson J was of
the view that if a contract clause requiring a licensee to use its ‘best
endeavours’ to sell a patented product meant that the licensee could not
sell competing products, it would have been protected by section 51(3).
Geo-blocking – where rightsholders impose geographical restrictions on the
basis of consumer nationality or location. The EU recently regulated
geo-blocking with Regulation 2018/302. The European Commission
subsequently found that clothing company, Guess, violated the
regulation by restricting authorised retailers from selling cross-border to
consumers within the EU single Market, allowing them to maintain artificially
high retail prices.
Assignments-back – In the US, Pilkington Glass was found to have built up a dominant
position in the glass manufacturing market by requiring licensees to assign
back improvements to Pilkington’s processes. Consequently, the court prohibited
Pilkington from imposing territorial and use limitations on their US licensees,
allowing them instead to manufacture and sublicence anywhere in the world, free
of charge, using the technology in the licences.
What will happen when the repeal comes
When the repeal takes effect this September it will operate
retrospectively, meaning p
We can anticipate that with this change, the ACCC will have an increased
focus on IP-heavy arrangements and compliance activities to ensure businesses
understand their new obligations under the CCA.
The ACCC has stated that they are in the process of writing guidelines
to assist businesses in complying with the repeal, but while we wait for these,
we can expect that agreements including the following aspects will be of
Exclusive arrangements, territory restrictions, geo-blocking and
assignments-back, as mentioned above;
Licences that impose quantity restrictions on the licensees, split
licensees’ rights by reference to customers, or involve bid-rigging;
Bundling and third-line forcing, where the licensee has to accept other
products from the licensor or a third party;
Patent pooling arrangements – these are agreements where companies with
related patents cross-license them to each other and agree on the terms of
licence agreements to parties outside the pool; and
Clauses that provide for a first mover advantage or “pay for delay”,
where one party pays the other to agree not to commercialise a product or move
into a market.
Now is the time to review
With the commencement date fast approaching there is still a window of
time to ensure that your existing IP arrangements will comply with the repeal.
If you have any concerns or questions about the
potential impact of the repeal on your IP licensing, assignment or distribution
arrangements, please contact us.
2018 came and went in a flash. France celebrated glory in the FIFA World
Cup in Russia; Banksy sold his ‘Girl With Balloon’ painting for $1.86 million
before the artwork shredded itself seconds after the gavel dropped; and the
online world was captivated by the World Record Egg. And as we say goodbye to
summer and settle into the working year, why not take the chance to reminisce
on some of the more important developments of 2018, and look forward to those
that 2019 has in store?
back on 2018
New obligations were enforced under the European Union General
Data Protection Regulation (the GDPR). While the GDPR is an EU
regulation, the obligations have a wide reach, applying to all Australian businesses who have an
establishment in the EU, offer goods & services to the EU, or monitor the
behaviour of individuals in the EU.
As part of the government’s safe harbour and insolvency reforms, we saw
the introduction of the ipso facto insolvency reforms by way of the Treasury Laws Amendment
(2017 Enterprise Incentives No.2) Act 2017. The reforms apply
to contracts entered into on or after 1 July 2018, affecting the ability of
contracting parties to exercise termination, enforcement or other rights that
are triggered by a company restructuring or insolvency.
The European Parliament voted in favour of introducing the
controversial EU Copyright Directive, a legislation designed to better meet
the needs of copyright protection in the internet age. The proposed directive
caused significant global debate around the detrimental effects of Articles 11
(the Link Tax) and 13 (the Meme Ban), headlined as the ‘death of the Internet’.
The ACCC highlighted its hard stance against franchises attempting to
contract out of their obligations under the Franchising Code of Conduct and the Competition and Consumer Act.
The ACCC’s case against Husqvarna Australia highlighted the importance of all
companies that appoint dealers, distributors, licensees or similar, to confirm
whether their contracts are in fact franchise agreements.
A Victorian Supreme Court cast some doubt over the enforceability of contractual
provisions that attempt to limit the period in which parties can claim for
misleading or deceptive conduct. This arose in the case of Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd 
VSC 246, where the court considered the enforceability of a
contractual provision requiring claims (including for misleading or deceptive
conduct) to be made within 7 days.Justice Riordan, deciding in contradiction to
a number of NSW decisions, ruled in favour of the “no exclusion principle”,
stating that allowing the enforceability of such time limitations on claims
would be against the public policy underpinning the provisions of the
Australian Consumer Law (ACL).
Some areas to watch in 2019
Discussions over the EU Copyright Directive continue, with negotiators
for the European Parliament aiming to finalise the directive shortly. However,
negotiations have broken down, with the three-way discussion between Council,
Parliament and member states derailed over the exact wording over Article
11 and Article 13. Consequently, the “trialogue” discussion that was set to take
place on 23 January was cancelled. With upcoming EU elections in May,
there likelihood of any closure on this matter in the near future is low, with
a final vote likely to take place under the next parliament.
The Telecommunications and Other Legislation Amendment (Assistance and
Access) Act 2018, commonly referred to as the AA Bill, was passed in
December of last year. The Bill’s aim is to compel various companies, especially
those in communications industries, to assist Australian security and law
enforcement agencies by allowing access to encrypted communications they
believe may contain plans for illegal or terrorist activity. The implications
of the Bill will be an interesting area to watch throughout the year, with a
number of people, especially those within the tech and start-up communities
expressing their concerns.
On 10 December 2018, the ACCC released its Digital Platforms Inquiry Preliminary Report. The ACCC’s
report is founded on questioning the role and accountability of the global
digital platforms (such as Facebook and Google) in the supply of advertising,
news and journalism in Australia. The final report addressing these issues will
be due on 3 June of this year.
There has been some debate globally and in Australia regarding the “hipster antitrust” laws, questioning the standards of
competition law. The current foundation of competition law in Australia is
focused on consumer welfare. However, concerns have been raised that this
standard is too narrow and does not allow for prosecution of some types of
conduct that some commentators believe competition law should cover.While this
debate is likely to continue throughout the year, ACCC Chairman Rod Sims has
reinforced Australia’s consumer welfare position, expressing their opposition
to the introduction of broader interest considerations of public policy into
competition law enforcement.
Earlier last month the European Parliament voted in favour of the EU
Copyright Directive (known more formally as ‘Directive on Copyright in the
Digital Single Market’), proposed legislation designed to better meet the needs
of copyright protection in the Internet age.
The directive is an attempt at amending the imbalances between the large
digital corporations and the content creators who use these platforms to share
their work. The aim is to implement a more rigorous process for protecting
works against copyright infringement, while also providing a more efficient way
to distribute earnings to rightsholders and reduce the ‘value gap’ between
creatives and the big players in the tech world.
With piracy and the misuse of copyright being one of the ubiquitous
consequences of the digital era, updating copyright protection laws would be
something to get behind and celebrate, right?
While those in the creative industries, such as publishers, music
labels, and individual creatives have thrown their support behind the
Directive, many others, especially those in Silicon Valley, are rallying in
strong opposition of the proposed laws; extreme opposers even heralding the
“death of the Internet” as we know it.
Two specific articles of the directive find themselves at the heart of
the polarising debate, namely, Articles 11 and 13.
Article 11, aptly nicknamed ‘the Link Tax’, is designed to allow
publishers of news content to request online platforms and news aggregators to
obtain licences before they are able to share any of their publications. The
obvious players finding themselves in the cross-hairs of this article are the
larger platforms such as Google and Facebook. However, while individual and
non-commercial use has been exempted from the law, there is concern the article
will have broader implications, especially on smaller websites who wish to
publish snippets and links to articles and who may be unable to afford the
Article 13, dubbed the “upload filter”, is the more controversial of the
The article is aimed at holding platforms that host user-generated
content (such as YouTube) liable for any misuse of copyright that may result
from any material uploaded by their users. Essentially, it means these
platforms can be sued directly by rightsholders for infringement.
While the current method of policing the misuse of
copyright is by responding to complaints by rightsholders, and removing any
infringing content accordingly, the directive will require these platforms to
take “effective and proportionate” measures to prevent unauthorised
works from being uploaded.
“But YouTube has over 300 hours’ worth of video content uploaded every
hour. How could they possibly find and stop all the infringing content from
being uploaded?” you ask. It is exactly this practicality of complying with
Article 13 that has proved one of the more contentious points of the debate.
It is argued that the only possible way to
implement this process of prevention is by using automatic filtering technology
capable of scanning through every single piece of content and
stopping any content it recognises as copyrighted material in its tracks. Easy
While it might not be a significant burden for the giants of the tech
world, like Google, YouTube, and Facebook, who have the finances to develop and
implement such technologies, its effect on smaller platforms appears to be more
problematic; with some contending it will hinder the growth of digital
platforms in the EU which will be unable to cope with the article’s
Just as concerning is just how efficient such filtering technology can
be. It has been queried how the technology will be able to recognise and
distinguish copyright infringement from other authorised or legal uses of
copyright, such as parody or satire. This worry has given the article another
common nickname: the “Meme Ban.”
For those not familiar, memes are often created by using still images
(commonly taken from copyrighted works such as photographs, films, or
television shows) and layering text over the top for comedic effect or
expression of an idea. While they are most often created without the author’s
consent for use of an image, they are still currently considered legal under EU
law. Accordingly, there are serious concerns that if the filtering technology
required by Article 13 is unable to distinguish legal use from infringement,
content such as memes will mistakenly be flagged as infringement.
So, while memes may not be technically banned as the nickname suggests,
they may likely still be flagged and killed off amongst the other infringing
What happens next?
The proposed legislation still faces one more round of voting in January
2019 before it will receive final approval. Many believe that, after the
successful vote last month, it is very unlikely the legislation will be
defeated in the new year.
What remains to be seen is in fact, however, is just much of a
disruptive impact the directive will have on the Internet both in the EU and
around the world.