Public and Regulatory Framework of Online Intermediaries: Conference Report

Following what can only be described as a long and tortuous process, the EU legislative bodies adopted the Copyright in the Digital Single Market (CDSM) Directive in June 2019 (for an overview, see here). Article 17 (former Article 13) on the new liability regime of online content sharing service providers (OCSSPs) occupies the center stage of the discourse on CDSM.

In the context of the H2020 funded “reCreating Europe” project, a group of scholars is carrying interdisciplinary research to examine the public and private regulatory consequences of Article 17 and its regulation of content moderation activities, in particular its impact on access to culture in the Digital Single Market. The reseach is carried out in Work Package (WP) 6. The design and preliminary results of this research were recently presented in a online webinar, which took place on May 5, 2020. (The workshop was originally planned to be a part of the WIPS5 (Fifth Annual Workshop on Intellectual Property Rights in Szeged. Due to the COVID-19 pandemic, however, WIPS5 had to be postponed.) Presented included members of the research team: Péter Mezei and István Harkai (University of Szeged) and João Pedro Quintais (University of Amsterdam, IVIR). The other partners of WP6 were represented Christian Katzenbach and João Carlos Magalhaes (Alexander von Humboldt University, HIIG) and Sebastian Felix Schwemer (University of Copenhagen, CIIR). The event recording and slides are available online.

João Pedro Quintais introduced the main tasks of WP6. The project aims to explain, critically examine and evaluate the existing legal frameworks (public/private, existing/proposed) that shape the role of intermediaries in organising the circulation of culture and creative works in Europe, including content moderation. The researchers also intend to measure the impact of legal frameworks, business practices and technologies on access and diversity, the creation of culture value, and on creators’ creative practices and users’ consumption patterns. In his presentation, João further introduced the background and the mechanics of Article 17, the challenges of the value gap for the European copyright industry, the pre-CDSM norms and case law of the EU law. João also highlighted the key issues that participants plan to address in the 33 months long project.

Péter Mezei and István Harkai focused on the methodological challenges and research questions related to their comparative research in WP6. They intend to focus on the national implementation of Article 17 in selected Member States of the EU in two phases. First, before the deadline of the national implementation is due; and, second, following the deadline of the implementation. Hence the first phase research aims to focus mainly on the policy considerations and the draft proposals of the selected Member States, and the second phase will address the accepted norms and – if possible – the emerging case law related to OCSSPs. The research will put a great emphasis on the terminological, structural and policy challenges of Article 17. It will also critically evaluate whether the original policy purposes of the EU (e.g. filling in the value gap and facilitating access to culture via the internet) can be reached.

The research project of Christian Katzenbach and João Carlos Magalhaes addresses the developing private ordering mechanisms and platform governance (both governance of and governance by platforms). Christian and João will collect and analyse data related to the organisational practices (including terms of service, privacy agreements, privacy policies, community guidelines), public discourse, technologies and content policies of platforms of. With the help of WayBack Machine, the research will introduce the evolution of the relevant documents/policies of platforms. Christian and João provided an example for the constant changes to platform regulations. The case study of Twitter evidences that the platform’s internal rules have substantially changed almost 300 times in the period (2009-2020) analysed by Christian and João. By looking at mainstream (e.g. YouTube), alternative (e.g. Mastodon), niche (e.g. Vimeo) and industry-centred (e.g. Spotify) services, the research will finally allow to understand the internal evolution and functioning of private ordering of a great number of platforms.

Sebastian Felix Schwemer, together with Thomas Riis, joined WP6 to assess normatively “how legal rules and contractual terms on the moderation and removal of copyright content on large-scale UGC platforms affect digital access to culture and the creation of cultural value.” As such, Thomas and Sebastian intend to focus on how Article 17 of the CDSM Directive will affect the business practices of OCSSPs. They will also pay close attention to issues beyond Article 17, e.g. European norms related to terrorist contents or the upcoming Digital Services Act, as well as to trusted notifiers or flaggers. In sum, Thomas and Sebastian plan to deliver reasoned opinions on how to improve copyright content moderation and removal practices toward better and more diverse access to culture.

WP6 is a complex, interdisciplinary project that discusses the copyright aspects of platform economy in a complex, multi-dimensional way. It addresses the content, efficacy and future of public rules and private ordering mechanisms related to the online dissemination of copyright protected subject matter. As such, it will allow policymakers and stakeholders at macro (EU), meso (Member States) and micro (platform) levels to understand the proper functioning of platform economy. The WP will deliver various research outputs, including interim and final reports, open source datasets, open source research papers. We will also organize other workshops in the coming years. Based on the success of the first webinar, the events will most probably be streamed, too, in order to reach the broadest audience.

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