Digital Single Market, First Stop to The Metaverse: Counterlife of Copyright Protection Wanted

Abstract

Building upon the “fair use by design” concept of Niva Elkin-Koren, this chapter is exploring how artificial intelligence can be used to implement exceptions or limitations.

Section 2 will give a brief overview of the evolution of the copyright acquis in the US and EU, in regard to platforms, discuss the implications of strict liability in an era of massive online use and infringements, which already has pushed and, a fortiori, will push platforms in the metaverse in the direction of automatic, scalable solutions, which on their turn, will increase the need for sufficient safeguards of unauthorized but legal use that falls under an exception or limitation.

Section 3 introduces the implications of the metaverse in regard to intermediary liability of copyright infringement and the need for “breathing space” for users and experimenting.

Section 4 explores the safeguards for legitimate use of content, which includes exceptions and limitations.

Building on Elkin-Koren’s “fair use by design” concept, Section 5 provides the prerequisites of designing algorithmic exceptions or limitations, and whether automated content recognition tools should be qualified as “high risk AI” under the proposed Artificial Intelligence Act, and incentives against over-blocking.

Followed by Section 6 which provides the Conclusions.

Keywords: copyright, metaverse, exceptions or limitations, fair use, intermediary liability, automatic content recognition, artificial intelligence, Digital Single Market, Article 17 Directive 2019/790, digital transformation

JEL Classification: K00, K10, K19, K23, K29, K42