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

Bruun et al (eds.), "Transition and Coherence in Intellectual Property Law” Cambridge University Press, 2021

University of Cambridge Faculty of Law Research Paper No. 8/2020

18 Pages Posted: 31 Mar 2020

See all articles by Henning Grosse Ruse-Khan

Henning Grosse Ruse-Khan

University of Cambridge Fellow, King's College Cambridge; University of Cambridge; Max Planck Institute for Innovation and Competition

Date Written: March 1, 2020

Abstract

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.

Keywords: copyright law, online platforms, algorithmic enforcement, Content ID, monetisation, user rights

Suggested Citation

Grosse Ruse-Khan, Henning, Automated Copyright Enforcement Online: From Blocking to Monetization of User-Generated Content (March 1, 2020). Bruun et al (eds.), "Transition and Coherence in Intellectual Property Law” Cambridge University Press, 2021, University of Cambridge Faculty of Law Research Paper No. 8/2020, Available at SSRN: https://ssrn.com/abstract=3565071 or http://dx.doi.org/10.2139/ssrn.3565071

Henning Grosse Ruse-Khan (Contact Author)

University of Cambridge Fellow, King's College Cambridge ( email )

King's Parade
Cambridge, CB2 1ST
United Kingdom

University of Cambridge ( email )

Trinity Ln
Cambridge, CB2 1TN
United Kingdom

Max Planck Institute for Innovation and Competition ( email )

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Munich, Bayern 80539
Germany

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