Algorithmic Enforcement in Copyright
Angelica Fernandez · 2024
Directive (EU) 2019/790 on Copyright and related rights in the Digital Single Market (CDSMD) redefined secondary intermediary liability for online content-sharing service providers (OCSSP). For many, this change of paradigm results in a shift from a takedown and action model to an algorithmic enforcement model for OCSSPs, when dealing with online copyright infringements. Consequently, the use of algorithmic tools is incentivised by law. However, in their current state, these tools are not error-free and consequently compromise fundamental rights. For this reason, algorithmic enforcement is seen as a necessary evil to comply with the law. This chapter outlines the genesis of Article 17 CDSMD and provides some remarks on its transposition into national law by the EU Member States. Second, it examines the tensions arising from the requirements in Article 17(4) CDSMD, as examined by the Court of Justice of the European Union in its case law, against the need for safeguards for the protection of fundamental rights in the context of the deployment of algorithmic tools. Third, it briefly analyses the consequence of algorithmic enforcement as an industry standard and the danger arising from OCSSPs normalising algorithmic enforcement in copyright so that it also extends other fields where there is a need to deal with illegal online content.