Automated Copyright Enforcement Online: From Blocking to Monetization of User-Generated Content

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the rare exception. This is not surprising, since both platforms and copyright owners significantly profit from monetization. However, contrasting complex automated enforcement tools such as Content ID against basic principles of copyright law, this paper shows how users loose out when their content is exploited. As aggravating factors, the paper points to far-reaching powers that platforms as ‘functional sovereigns’ wield within their respective domains; and to the fundamentally distinct nature of norms set by these sovereigns. The platform’s application and enforcement of its own rules is hard-coded, immediate and automated: embedded in its infrastructure and code, implemented through automation, and adjudicated in its own courts, platform rules constitute brute facts, directly shaping our reality – hence transforming the nature of law as institutional (that is, socially constructed) facts. The paper concludes by critically reviewing mechanisms to protect users, including those set out in Article 17 of the EU’s Digital Single Market Directive

Challenging Compliance with International Intellectual Property Norms in Investor–state Dispute Settlement

Enforcing intellectual property (IP) rights abroad is not easy – not least because international IP treaties do not create global rights that can invoked in national courts. International investment law offers potential routes for overcoming these hurdles. Whenever investment treaties include IP rights as an investment and allow for investor-state dispute settlement (ISDS), investors can challenge host state measures affecting their IP rights in ISDS proceedings. As this article will show, this in turn offers a unique opportunity for invoking the standards of protection under international investment agreements (IIAs) to challenge host state compliance with international IP treaties. While challenging national IP regimes is an attractive option for right holders, these challenges potentially amount to a sea-change for the international IP regime and cause serious concern for host states. I however argue that most of the routes pursued by right holders under IIAs are unlikely to be successful. Investment protection standards such as fair and equitable treatment, umbrella clauses and most-favored nation treatment should not be construed to allow invoking alleged breaches of international IP norms in ISDS. Some IIAs however contain clauses that subject expropriation claims against compulsory licenses and other IP limitations to a test of consistency with the international IP rules governing these limitations. As they offer the only feasible route for investors to challenge host state compliance with international IP treaties, I review the implications of these clauses, recent reform proposals and suggest alternative mechanisms for aligning international IP and investment protection based on general international law.This is the author accepted manuscript. The final version is available from Oxford University Press via http://dx.doi.org/10.1093/jiel/jgw00

Automated Copyright Enforcement Online: From Blocking to Monetization of User-Generated Content

Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the rare exception. This is not surprising, since both platforms and copyright owners significantly profit from monetization. However, contrasting complex automated enforcement tools such as Content ID against basic principles of copyright law, this paper shows how users loose out when their content is exploited. As aggravating factors, the paper points to far-reaching powers that platforms as ‘functional sovereigns’ wield within their respective domains; and to the fundamentally distinct nature of norms set by these sovereigns. The platform’s application and enforcement of its own rules is hard-coded, immediate and automated: embedded in its infrastructure and code, implemented through automation, and adjudicated in its own courts, platform rules constitute brute facts, directly shaping our reality – hence transforming the nature of law as institutional (that is, socially constructed) facts. The paper concludes by critically reviewing mechanisms to protect users, including those set out in Article 17 of the EU’s Digital Single Market Directive

A Real Partnership for Development? Sustainable Development as Treaty Objective in European Economic Partnership Agreements and Beyond

"The CARIFORUM EPA is a new kind of free-trade agreement as sustainable development is the presiding principle governing the whole agreement." The European Community (EC) is currently negotiating Economic Partnership Agreements (EPAs) with several groups of developing countries. An element which the EC Commission likes to highlight is the objective of sustainable development. This article analyses the potential of this 'presiding principle' of sustainable development as a treaty objective--in the EPAs and other treaties in international economic law. Defining parameters are the international law background on sustainable development and the role of treaty objectives in the process of interpretation. The main findings are that a sustainable development treaty objective is one (of many) legal tools to achieve an integration of economic, environmental and social interests. Its specific value lies in its substantive ambiguity which translates into domestic policy space in the implementation of international treaty obligations. This discretion is limited by any specific integration performed in the treaty negotiating process and expressed in individual treaty provisions. It is further qualified by the customary rules of treaty interpretation in international law where object and purpose is only one of several elements feeding into a holistic interpretation exercise. Its main weakness may be that it depends on domestic institutions to make effective use of the policy space to integrate and on international judicial bodies to exercise deference accordingly. Oxford University Press 2010, all rights reserved, Oxford University Press.

Work and works on digital platforms in capitalism: conceptual and regulatory challenges for labour and copyright law

Abstract This article explores the challenges associated with creative work in the digital economy at both a conceptual and practical level, through the conjoined lenses of labour law and copyright law. We begin by developing a conception of the capitalist work relation and the distinct struggles intrinsic to it. This allows us to better understand the functions of creative work in contemporary ‘digital’ capitalism and the various regulatory challenges to which these different functions give rise. We then use this analysis to explore some of the conceptual and practical challenges that arise in both labour and copyright law when it comes to regulating creative work in an age of ‘digital platforms’, with a particular focus on the question of how to secure creators a fair remuneration, and potentially, a living, for their work. The concluding section discusses the potential and limits of new European Union rules on mandatory protections for authors and users to deal with these challenges.</jats:p