Frosio (2017)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Frosio (2017)
Title: Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy
Author(s): Frosio, G. F.
Year: 2017
Citation: Frosio, G. F. (2017). Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy.
Link(s): Definitive , Open Access
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About the Data
Data Description: The study makes conclusions based on secondary data from a number of empirical sources, including academic studies and policy reports.
Data Type: Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
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Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: Yes
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Abstract

Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions — often tainted by protectionist concerns — define the present intermediary liability conundrum. Apparently, safe harbours still hold, although secondary liability is on the rise. As part of its Digital Single Market Strategy, the European Commission would like to introduce sectorial legislation that would de facto erode liability exemptions for online intermediaries, especially platforms. Under the assumption of closing a “value gap” between rightholders and online platforms allegedly exploiting protected content, the proposal would implement filtering obligations for intermediaries and introduce neighbouring rights for online uses of press publications. Meanwhile, an upcoming revision of the Audio-visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Finally, the EU Digital Single Market Strategy has endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. This paper would like to contextualize the recent EU reform proposal within a broader move towards turning online intermediaries into Internet police. This narrative builds exclusively upon governmental or content industry assumptions, rather than empirical evidence. Also, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. Apparently, the European Commission aligns its strategy for online platforms to a globalized, ongoing move towards privatization of enforcement online through algorithmic tools. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet.

Main Results of the Study

  • This reform package is apparently based solely on content industry assumptions, rather than independent empirical evidence. In contrast, there is plenty of evidence that might show positive externalities for creativity thanks to the Internet, digitization, and platforms that was never considered.
  • Overlooking this empirical evidence—or at least moving forward without an impact statement that would consider all evidence and possible narratives—might result into a reform that will prove obsolete before being implemented, possibly detrimental for the Digital Single Market, rather than beneficial.
  • In addition, the present reform proposal might threaten systemic consistency. Apparently, the reform would like to substantially intervene on intermediary liability principles through a so called “sectorial approach,” rather than amending the eCommerce Directive where those principles are enshrined. This approach might create unavoidable conflicts between norms. Intermediary liability reform should happen first and foremost in the context of the eCommerce Directive, rather than through copyright and audiovisual reform—or the promotion of voluntary self-regulatory actions. This policy strategy—which de facto would turn the long standing European horizontal online intermediary liability approach into a vertical approach—might be easily exposed as a sloppy attempt to circumvent the lack of consensus in amending the present intermediary liability regimes—as emerged in multiple EU consultations.
  • Finally, the proposed EU reform deploys a strategy that would apparently turn online intermediaries into Internet police. In truth, this comes with little surprise. Since the inception of the Internet, governments—and right holders as far as IP enforcement online is concerned—have attempted to enlist intermediaries to sanitize the Internet from allegedly infringing and illicit materials. In this sense, the intermediary liability discourse is shifting towards an intermediary responsibility discourse. This process might be pushing an amorphous notion of responsibility that incentivizes intermediaries’ self-intervention to police allegedly infringing activities in the Internet.
  • Ironically, the ongoing European reform process might end up achieving the opposite goals than pushing a European culturally independent Digital Single Market. It might promote globalized control enforced by algorithms developed and controlled by major Silicon Valley companies.


Policy Implications as Stated By Author

The author presents the following policy implications:

  • "The upcoming European Digital Single Market reform endorses a reaction to the platform economy that might be at least short-sighted and possibly harbinger of dystopian scenarios."
  • "First, the Commission’s reductionist approach towards platform and sharing economies, digitization, and the Internet at large, might prove a bad policy approach. A narrative emphasizing the “value gap”—rather than the added value”—of the platform economy seems counter-intuitive and disconnected from empirical evidence. In this respect, this reform package is apparently based solely on content industry assumptions, rather than independent empirical evidence. In contrast, there is plenty of evidence that might show positive externalities for creativity thanks to the Internet, digitization, and platforms that was never considered."
  • "Overlooking this empirical evidence—or at least moving forward without an impact statement that would consider all evidence and possible narratives—might result into a reform that will prove obsolete before being implemented, possibly detrimental for the Digital Single Market, rather than beneficial."
  • "In addition, the present reform proposal might threaten systemic consistency. Apparently, the reform would like to substantially intervene on intermediary liability principles through a so called “sectorial approach,” rather than amending the eCommerce Directive where those principles are enshrined. This approach might create unavoidable conflicts between norms.
  • "Intermediary liability reform should happen first and foremost in the context of the eCommerce Directive, rather than through copyright and audiovisual reform—or the promotion of voluntary self-regulatory actions. This policy strategy—which de facto would turn the long standing European horizontal online intermediary liability approach into a vertical approach—might be easily exposed as a sloppy attempt to circumvent the lack of consensus in amending the present intermediary liability regimes—as emerged in multiple EU consultations."

Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Green-tick.png
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Green-tick.png
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets