Serbian Internet wars: fighting memes with copyright
In order to establish who is responsible for the attempts of censorship and limiting free exchange of content on the Internet during last weekend, Share Foundation filed a criminal complaint against responsible persons in a company called “Matricom”, the official representative of “KVZ Music” for Serbia. “KVZ Music” is a Bulgarian company registered in Austria which made the requests for the removal of the content from Internet platforms. Share Foundation also sent a request for access to information of public importance to Radio Television of Serbia (RTS) so it could be determined if there was any responsibility of the public service broadcaster in this case.
Share Foundation decided to take action because we think that this is a battle for Internet freedom and Internet culture. Imagine the Internet without millions of satirical illustrations or remixed videos. This content represents the core of Internet culture and it is our duty to create a legal framework which will enable us to freely express our creativity, critically observe reality and preserve freedom of expression. What we want to point out is that copyrighted works can be freely used for parody and satire as legitimate forms of expression.
Funny videos starring Mr Aleksandar Vučić were quickly removed from the Web. Although it was clearly indicated that their author was RTS, which didn’t violate copyright in any way, the videos were removed because of alleged copyright infringement. We cannot help but wonder why is this situation so specific if you can watch all episodes of a commercial TV series “Ravna gora” on YouTube, which is aired on RTS during prime time, or find 15 800 videos containing “RTS Dnevnik” (evening news) in their titles. But requests for removal because of copyright infringement weren’t send because of these videos - they were sent to remove the content for which there was no legal basis.
Freedoms of expression and opinion are guaranteed by the Constitution of the Republic of Serbia, as well as the European Convention on Human Rights. Limitations of these freedoms are only allowed if they are prescribed by law in specially defined cases.
Free adaptation of copyrighted works for parody is allowed by the Serbian Copyright Law (art. 54a): “free adaptation of a published authored work is allowed in the cases of parody and caricature, if it doesn’t create confusion regarding the source of the work”. The right to parody and remix is also included in the EU regulations, as well as US legislations and case law, as “fair use”.
Share Foundation and Share Defense will continue to protect Internet freedoms, conduct analysis and engage in procedures with the aim of defending our right to free expression on the Internet, free use of content for social criticism and satirical comments. We don’t want to be a part of everyday political affairs in the media. It is not important who is involved. By conducting analysis and starting legal procedures we want to create a legal framework which will protect the Internet culture from any kind of future censorship, sanctions or suppression.
According to Article 54a of the Copyright Law , “free adaptation of a published authored work is allowed in the cases of parody and caricature, if it doesn’t create confusion regarding the source of the work”. Article 4 of the same law, which allows the adaptation of authored work, shouldn’t be confusing because it does not limit the rights of author of the original work in any way. Adapted (derivative) work represents a work in which specific elements of the original work can be recognized (musical covers, arrangements, adaptations and so on).
Article 43, Paragraph 4 of the Law also allows free use of current information and news in the sense of a journalistic report (i.e. without permission of the author and paying of authorship fees fees) for informing the public by print, radio, television or other media, in a matter that suits the purpose and the method of reporting on current events.
The Constitution of the Republic of Serbia (art. 46) guarantees freedom of opinion, expression and the freedom to seek, impart and receive information through speech, writing, images and in any other way. The second paragraph of this Article states that limitations of these freedoms are allowed only if they are prescribed by law, if it is necessary to protect the rights and reputation of others, preserve the authority and impartiality of the court and protect public health, morale of democratic society and national security of the Republic of Serbia.
EU Directive on the harmonisation of certain aspects of copyright and related rights in the information society 2001/29/EC (Copyright Directive) prescribes that member states can allow exceptions of the absolute right of the author, i.e. the right to reproduce the authored work (which according to Art. 2 belongs to the author) in the cases when the work is used to make a parody or caricature.
In the American legal system, parody can be considered as a “derivative work” in the sense of the US Copyright Law and it is therefore included in the absolute right of the author to use the work. But parody can also qualify as an exception of the absolute right of the author, i.e. as “fair use”, because it is prescribed that fair use of the work for criticism, comments, news reporting etc. doesn’t represent copyright infringement. In the case of Campbell et al. v. Acuff-Rose Music, Inc, which was about the commercial use of a parody of a musical work, the United States Supreme Court stated that parody represents the use of certain elements of a previously created original work to create a new work, which partly comments the original work. That comment is actually the basis of fair use of the original work.
Freedom of expression is also prescribed by Article 10 of the European Convention on Human Rights from 1950. According to the Convention, freedom of expression includes the freedom to have an opinion, to receive and impart information and ideas without the interference of public authorities and regardless of borders. This article cannot prevent states from demanding licences for television, radio and cinema companies.
In January 2013, the European Court of Human Rights reached a decision in the case of Ashby Donald and others v. France. Although the Court decided that there was no breach of Article 10 of the Convention, this case is one of the first where the Court’s opinion was that copyright enforcement, limitation of use of authored works and sanctions based on copyright law could be considered a breach of right to free speech and access to information. In other words, it is no longer enough to justify the sanction or any other court decision that limits artistic or journalistic freedom of expression with copyright infringement. This decision unambiguously states that Article 10 is applicable in cases where copyright interferes with freedom of expression and access to information of third parties, adding a human rights perspective which should be taken into account when enforcing copyright protection, especially having in how much free estimate states have in these cases.
During the weekend, several satirical videos showing Mr Aleksandar Vučić saving a child from a snow blizzard in Feketić appeared on YouTube. The original footage, which was published on the Radio-television of Serbia (RTS) website and YouTube, had been altered by adding satirical subtitles of a conversation Aleksandar Vučić had with a child he was carrying, alluding that this event was “just a show” to gain support at the upcoming elections.
It was clearly indicated that the author of the video in question was RTS, which means that copyright could not have been violated in any way. Also, the controversial parody was not used commercially - it was only used to show the electoral campaign in a humorous way. Removing every single video which showed the original footage of RTS in a satirical way from YouTube (“Super Vučić”, “The beginning of the campaign – Parody”, “Several times deleted video of Superman in Feketić”, and “VISuperman in Feketić”) right after they were uploaded represents a violation of freedom of expression and freedom of access to information, guaranteed by the Constitution.
In addition to the exercise of freedom of expression, there is also the question of the right to share, or “interactively making copyright and similar rights available”, which implies wired or wireless publishing of an authored work or similar subject in order to allow an individual to access the work from any place and any time he chooses. Organization Article 19 states that limitations and exceptions of copyright protection, especially fair use, should be broadly interpreted in order to provide greater protection of freedom of expression than that of copyright.