Memes and Parasites: A Discourse Analysis of the Copyright in the Digital Single Market Directive

Abstract

The Directive on Copyright in the Digital Single Market Directive ((EU) 2019/790) 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 paper, 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 topoi that appear to dominate the debate: (a) Technocratic (responding to tech development by updating the copyright framework), (b) Value gap (the redistribution of revenues to benefit creators and producers), (c) Internet freedoms (freedom of expression and user interests), and (d) European (the 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 the discourse. We show that changes in the draft legislation can be associated with the appearance and evolution of the four topoi in the debates, but that changes in the proposed legal language tend to be obfuscatory, rather than addressing the issues. Controversial language such as “content identification” (associated with filtering) was removed and safeguards were offered, but many of the changes remained meaningless (in law) or open to different implementations.

Keywords: Copyright, Discourse Analysis, Public Sphere, European Union, Habermas, Directive on Copyright in the Digital Single Market

JEL Classification: D23, K4, H41, K11, L82