In 2015, the creators of the YouTube channel, PinkFong, published the Baby Shark music video on its channel. However, it was in 2018 that the song became a global phenomenon, to the extent that it currently has over 2.1-billion views on YouTube.

Of course, people from all around the world wanted to show off their “Baby Shark skills” which led to millions of people uploading videos to YouTube and Facebook of themselves performing Baby Shark (and so the Baby Shark challenge was born).  

Although such a phenomenon creates worldwide entertainment, it poses controversial intellectual property rights questions, specifically from a copyright perspective. Copyright is a form of intellectual property law that protects original works (including online videos such as Baby Shark) and grants the owner (PinkFong in this case) of such copyright the exclusive right to control how its Baby Shark video is used, who can make money from it and how the video is shared on YouTube. This means that PinkFong is the only party who can exercise or grant the rights to reproduction, distribution, public performance, public display and creation of derivative works. Any party uploading a video based on characters, story lines or other elements of the Baby Shark copyright-protected online video may be infringing on its copyright. 

However, with the latest amendment to the European Copyright Directive, these risks and frustrations may shift to the social media platforms hosting the copyrighted content which may cause these platforms to block any potential infringing content in the EU. This could lead to people in the EU not being able to view some of their favourite Baby Shark performances which in effect may harm businesses such as Google, YouTube and Facebook.

In September of last year, the European Parliament approved amendments to its Copyright Directive intended to update copyright for the modern internet age. At this point, it is important to note that state leaders within the EU still need to sanction the changes before individual countries start hashing out the legal changes. The most controversial amendment and the one trying to catch all the “baby sharks” is the amendment of Article 13. Also dubbed as the “upload filter”, Article 13 now states that platforms that store and provide access to a large amount of copyrighted works, uploaded by its users, are liable for copyright infringement committed by its users. Therefore, platforms like YouTube may have to introduce severe filtering algorithms to try and limit its risks of facing possible copyright infringement proceedings.

However, introducing procedures to filter out any potential infringing content is not as easy as hitting spacebar on the keyboard. There is also uncertainty on how these giant media platforms are expected to identify and remove possible infringing content as all your favourite memes, re-mixes and other user-generated content could technically be seen as breaches of copyright which could potentially harm millions of YouTubers who perform music, review films, or in other ways use assets that belong to others. Although, memes for example, are said to be protected as parodies, others argue that filtering systems wouldn’t be able to differentiate memes from the copyrighted work it originated from and therefore it will end up being removed due to it being “infringing content”.   

For now, baby sharks are still swimming unharmed pending the negotiations between The European Parliament and respective member states. However, once in force, the amended laws may affect baby, mommy, daddy, grandma and grandpa sharks swimming in European waters.

Written by Ruan Dickinson, Attorney in KISCH IP’s Trade Mark Department