80 Pages Posted: 2 Feb 2017 Last revised: 28 Mar 2017
Date Written: January 20, 2017
Freedom of expression is closely intertwined with the preservation and promotion of cultural diversity. Simultaneously, protection of freedom of expression is promoted as an essential foundation for democracy in a pluralistic society. Although the aim of fostering cultural diversity is widely recognised, challenges remain in analysing the relationship and interaction between cultural diversity and freedom of expression. These challenges are likely to loom large in the digital environment.
Digital technologies are changing the way cultural works are being produced, distributed and accessed, but digital technologies are also changing the way online uses of cultural work are monitored. Under the auspices of the Digital Single Market Strategy, the EU Commission has proposed a new copyright directive and intellectual property enforcement strategies. In the mind of the Commission, achieving this aim requires video-sharing platforms to embrace sophisticated technological tools, termed in this paper as ‘automated anti-piracy systems’ (‘AAPSs’). AAPSs are capable of recognising content which right-holders have already identified as their own, and respond based upon standing instructions from the holder whether the platform should permit use or block it. The Commission is intending to endorse and render mandatory the - so far - unregulated and informal notice and take-down procedure established by private entities.
There are inherent risks in this privatisation of decision-making when digital content is blocked, filtered or removed. There is a lack of transparency in the design, implementation and use of AAPSs. This exacerbates the lack of accountability of intermediaries, and concerns that they fail to respect fundamental rights compared to in cases where the judiciary would be involved in the decision-making process.
Consequently, one may begin to wonder whether an obligation to deploy automated anti-piracy systems on online-sharing platforms might run counter to promotion of cultural diversity. By requiring private entities to determine what unauthorised use is an ‘infringement’, will there be enough (or any) breathing space for cultural diversity to thrive? After all, the digital environment enables distribution and communication of artistic and cultural expression across borders and cultures in an unprecedented manner. While many may have very little economic value, they may be, nevertheless, indispensable for individual fulfillment and participation in a democratic society.
Instead of considering whether the use of automated anti-piracy enforcement mechanisms is likely to violate international human rights law, this article looks at this issue from another perspective, and asks whether use of AAPSs is likely to impact on cultural diversity. By promoting cultural diversity as desirable ‘ends’, freedom of expression and copyright become the ‘means’ for enhancing the interaction between cultures and thereby promotes democratic values. In this article, we discuss our empirical research which sought to assess the diversity in cultural expressions featured on video-sharing platforms.
Keywords: copyright, music, YouTube, algorithm, safe harbor, safe harbour, intermediaries, liability, cultural diversity, content ID
Suggested Citation: Suggested Citation
Jacques, Sabine and Garstka, Krzysztof Kornel and Hviid, Morten and Street, John, The Impact on Cultural Diversity of Automated Anti-Piracy Systems As Copyright Enforcement Mechanisms: An Empirical Study of YouTube’s Content ID Digital Fingerprinting Technology (January 20, 2017). Available at SSRN: https://ssrn.com/abstract=2902714 or http://dx.doi.org/10.2139/ssrn.2902714