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Copyright Exceptions and Internet Memes: A Comparative Study of Finland and the United States

Koponen, Mira

Opinnäytetyöt 1.9.2021, Gradut ja muut tutkielmat


As vehicles of communication and critique, internet memes are an important part of the internet ecosystem. However, at the moment their position in copyright law is still unclear. Internet memes often reproduce parts of copyrighted works and as such there is an inherent risk that they infringe copyright. At the time of writing, there is no Finnish nor EU case law on internet memes, whereas in the US they have been the subject of a few District Court cases. Within EU, we are left with analogous interpretation via parody. As the status of internet memes in copyright law is more established in the US, this thesis takes a look at Finnish and EU parody exceptions and compares them to the US fair use doctrine in order to find the differences and similarities in their approach and whether the US system could offer something to the Finnish one.

Finland views parody through the lens of free derivative work (vapaa muuttaminen) and quotation (sitaatti). Due to the special characteristics of memes, conversion of work (muunnelma) and its relationship to implied license as well as quotation of an image (kuvasitaatti) were also studied. However, none of them were quite suitable as copyright exceptions to internet memes. Arguably the best candidate would be free derivative work. However, the copyrighted work threshold would likely cause problems. The Finnish approach to parody is problematic, as in the CJEU Deckmyn -case it was stated that parody is a uniform concept within the EU and that member states could not opt to legislate parody exceptions other than the one in the InfoSoc Directive 5(3)(k). As such, it seems like the Finnish take on parody exception is not up to EU standards. In Deckmyn -case CJEU gave uniform interpretation to parody: it must evoke an existing work while being noticeably different from it as well as constitute an expression of humour and mockery. This description would arguably fit internet memes well, and it would not have the problem of copyrighted work threshold.

In fair use, whether or not the use of copyrighted work in a new work is infringing is dependent on the four fair use factors: the purpose and character of use, the nature of the copyrighted work, the amount and substantiality of the portion taken and the effect of the use on the potential market. Nowadays transformativenes, as part of the purpose and character of use, is often one of the more persuasive factors. So far, US case law and legal literature seem to agree that derivative memes could be justified by fair use, although some factors would weigh against it.

Transformativeness especially is a factor that could be useful even in Finland when we considered copyright exceptions as they relate to internet memes. If the purpose of use of a derivative meme differs greatly from its source material, then it likely does not harm the original work, or at least any harm is outweighed by its social benefit. While effect of the use on the potential market was not considered of high importance for internet memes in general, it could serve a function in cases where internet memes were used for marketing purposes without the rightsholder’s consent, if we wanted to treat the use of internet memes differently based on commerciality. Another useful factor could be de minimis. While it arguably does share some similarities with copyrighted work threshold, it could be beneficial in cases where the changes between different meme versions are insignificant.

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