Re-visiting copyright: is there a way to tackle selective enforcement and non-contextual algorithmic takedowns? A discussion through the lens of internet meme culture

Abstract

ABSTRACT Internet memes, a bourgeoning form of communication, resemble accessory elements of language. However, internet memes are conceptually complex. Their collective re-creative process relies heavily on copying underlying works, usually without asking for prior-permission from their rightsholders. Internet memes challenge core copyright assumptions on reasons of re-creation and modes of exploitation. Without a fundamental rethink of this mismatch, internet meme culture may be threatened. Going forward, copyright reforms should be holistic and distinguish between traditional and newer forms of re-creative processes. This article proposes that existing copyright can be flexibly interpreted to limit private property rights of underlying works and meme variations when they are used as internet memes, so as to facilitate their adaptation and support socio-cultural discourse. This article proposes a two-step holistic interpretation: copyright can conceptualise and confer limited rights for underlying works and meme variations when they are copied and re-used as internet memes. Copyright can also conceptualise a narrower scope of property rights by flexibly interpreting a combination of fundamental notions, including joint authorship, fair dealing, idea-expression, or user rights. This holistic approach sits comfortably with user-creators and their blurry cultural production-consumption patterns, alongside their nuanced (non)economic use of internet memes.