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Internet Intermediaries and Copyright Law. Towards a Future-proof EU Legal Framework

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Abstract

Internet intermediaries, such as internet access providers and search engines, are crucial in our modern information societies. They are the internet’s go-betweens. They enable us to express ourselves, they provide us with access to information, and they allow us to search effectively through the massive amounts of online content. Yet, the increasing prominence of intermediaries in our lives also generates discussions about their social and economic influence. For instance, new issues of privacy and competition law arise with the dominant position of some platforms on markets for search, social networking, and e-commerce. Furthermore, disinformation and ‘filter bubbles’ give rise to questions about the plurality of views and opinions that social networks may have to promote, as well as the responsibilities of intermediaries to safeguard other democratic values. The intermediary’s role as a facilitator in several economic and social processes allows it to have a shaping effect on online life and the ability to exercise one’s communicative freedoms, both positively and negatively. One area where this shaping effect is clearly felt, and possible tension that comes with it, is in the area of copyright protection. Copyright law offers authors control over their intellectual creations and ensures that these authors are rewarded for the use of their materials. It incentivizes creativity by awarding exclusive rights, and enables access to copyrighted works by ensuring that certain exceptions are in place. Intermediaries are paramount in this process because they facilitate the dissemination of copyrighted works. Access and hosting providers, for example, offer the basic infrastructure to disseminate music, films, software and other information products, whereas other intermediaries provide the platforms on which content can be advertised and consumed. However, the services of intermediaries can also be used to undermine copyright protection, which has led to discussions about the responsibilities that intermediaries have in copyright enforcement. Access providers, for example, also enable internet users to share copyrighted materials on peer-to-peer file-sharing networks. Whether the access provider has to block websites, provide identifying information about infringers, or even install filtering systems to weed out unauthorized materials, has been the subject of extensive (academic) debate. The tension is also felt when looking at the disruptive influence of intermediaries on the business models of the content industries. Here intermediaries have become central actors in the value chain for information products by offering new avenues for distributing and accessing copyrighted works. For instance, news can be accessed directly via a search engine’s interface rather than on a newspaper website, and music can easily be streamed via online content platforms rather than bought. These new services have not been met with resounding applause by content creators, which may be attributed to the lack of control that content creators experience and the incompatibility of proven business models with the online reality in which intermediaries play an increasingly prevalent role. Given the importance of copyright protection and enforcement, and the central role that intermediaries play in our information societies, the liability of intermediaries for infringements should be carefully regulated. The fast-paced technological environment in which intermediaries and copyright owners operate requires that such regulation is future-proof; such regulation must be balanced and flexible. Yet, it is exactly this environment that also makes it difficult to create future-proof regulation. As the internet landscape changes and patterns of information use adapt, the effectiveness of rules may be challenged. Legal uncertainty may arise about how existing rules are to be interpreted, which may hinder future technological developments and creative processes. Intermediaries presumably become hesitant to offer their services if they are unsure about the liability that they incur. Likewise, if authors and publishers are uncertain about the protection of their creative and entrepreneurial endeavors, they may not produce original content. The fact that copyright law and intermediary liability are both regulated by the European Union (EU) adds another level of complexity. Indeed, harmonization should make it easier to offer cross-border services and enable both intermediaries and copyright owners to run their business more efficiently. At the same time, harmonization efforts can be lengthy processes. And the case law of the Court of Justice of the European Union (CJEU) that builds on these efforts can take a long time to crystallize. Court cases can go from a court of first instance to an appellate court, the supreme court, then to the CJEU, and back. Consequently, legislative and judicial processes in the EU suffer from a considerable degree of sluggishness, which may complicate the creation of a future-proof legal framework. The central position of intermediaries in the current information ecosystem and the fundamental rights that are involved, combined with the dynamic nature of intermediary technologies and the effect they have on the law, beg the question whether the current EU legal framework on intermediary liability is future-proof. And if that is not the case: how could that legal framework be made future-proof?
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... Legislative changes have also been accompanied by technological measures undertaken by platforms (largely in response to pressure from rightsholders) that go beyond the legally prescribed measures to include monitoring and filtering mechanisms that tackle infringing content (Elkin-Koren 2014; Hinze 2019; Frosio 2020), with YouTube's "Content ID" being perhaps the most illustrative example in this context. Although such applications may offer efficient tools to deal with the allegedly vast amount of infringing content (Penney 2019), they come with negative implications, in particular with regard to non-infringing uses of copyrighted works (either under the limitations and exceptions or for works having fallen in the public domain) and can be linked to chilling effects on creativity (Guzman 2015;Bridy 2016;Frosio 2017;Kulk 2018), which this chapter discusses later in more detail based on insights from the EU copyright reform. ...
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The original goal of copyright, as embedded in both international and national legal frameworks, has been to foster creativity and the arts by providing a temporary monopoly for the creator over her works, as well as certain conditions for access to these works that permit follow-up innovation and the distribution of knowledge and culture. The balance of rights has always been precarious and doubts about the proper functioning of copyright systems as a true engine for creativity existed. The digital age, with its incredible technological affordances and low threshold of participation, has trigged both concerns for massive copyright infringement and unprecedented opportunities for creative work. Legal systems have adapted over time to reflect this technological change, yet the jury is still out on whether these adjustments were appropriate and in line with copyright’s original goal. The chapter discusses these newer developments in copyright law. It then looks in particular at the role of digital intermediaries as critical actors in the new creative space and exposes the dangers that recent legal initiatives may pose to creativity through the private power of platforms, the use of algorithms and possible limitations to access to and use of creative and artistic works. The chapter ultimately asks whether there are copyright models that can better foster contemporary creativity and the arts.
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