The Right of Communication to the Public on Digital Platforms - Issues of Liability, Proportionality and Creativity in EU Copyright Law

Digital platforms are the next leading public communication media. So, major copyright holders insist on the exclusivity of their right to communicate their works to the public even on those platforms. But there is nothing in their right, as an intellectual property, that equips it with utter free rein over the communication rights of others providing and using digital platforms. Instead, rightholders decry the ex post and liability immunity regulatory regime of platforms under the European Union’s copyright law as grossly ill conceived. They contend that platforms edit and deal on their users uploads but hide under the guise of neutral intermediaries to avoid liabilities and evade licences on offer for copyright works appearing on their platforms. This dissertation exposes the digital platforms’ orchestrated phenomenon of global public communication and its associated risks of fundamental rights infringement by any unconscionable regulatory regime. It critically examines the scope of the Union’s right of communication to the public as a copyright and property right while identifying its pedantic boundaries with other rights. It brings to the fore the neglect creative individuals suffer where copyright law focuses more on investment rather than creativity. While assessing the limits of the platforms’ ex post regulatory regime, it fully delves into a critical appraisal of the Union’s attempt to amplify rightholders’ right in its uncanny provision in the DSM Directive. It finds the attempt to re-establish certain platforms as responsible super brokers of impartial public communication for all users quite intriguing. These platforms will necessarily, in spite of all odds, use automatic content recognition devices. As such, the extent of the public role entrusted to them as guarantors of rightholders’ rights and other fundamental rights is judiciously examined under the ‘rights balancing’ regime of the EU Charter. It concludes that the imposed copyright duties on platforms inevitably trigger a concomitant obligation to protect users’ rights. It recommends its inferred lawful-use doctrine as a copyright-sensitive protocol that engages with the unique obligations of these super platforms