Copyright Content Moderation in the EU: An Interdisciplinary Mapping Analysis

Abstract

This report is part of the reCreating Europe project and describes the results of the research carried out in the context of Work Package 6 on the mapping of the EU legal framework and intermediaries’ practices on copyright content moderation. The Report addresses the following main research question: how can we map the impact on access to culture in the Digital Single Market of content moderation of copyright-protected content on online platforms? The report consists of six chapters.

After a brief introduction in Chapter 1, Chapter 2 develops a conceptual framework and interdisciplinary methodological approach to examine copyright content moderation on online platforms and its potential impact on access to culture. The analysis clarifies our terminology, distinguishes between platform “governance” and “regulation”, elucidates the concept of “online platform”, and positions our research in the context of regulation “of”, “by” and “on” platforms.

Chapter 3 carries out a legal mapping of the topic of this report at EU level. Our focus here is the legal regime of art. 17 of the Copyright in the Digital Single Market Directive (CDSMD). We first provide some context on the legal regime that precedes the CDSMD. We then briefly explain the legislative process leading to the adoption of the Directive, followed by a snapshot of the legal regime, including remarks relating to the European Commission’s stakeholder consultations and Guidance on art. 17, and the action for annulment of art. 17 initiated by the Polish government in Case C-401/19. This is followed by a detailed analysis of art. 17, with an emphasis on its liability regime and rules with implication for copyright content moderation by OCSSPs. The chapter closes with an examination of the interface of art. 17 CDSMD with the Digital Services Act (DSA), which final version was agreed in the concluding stages of this Report.

Chapter 4 provides an analysis of the findings of our comparative legal research at national level. The findings are based on two legal questionnaires carried out with national experts in ten Member States, before and after the implementation due date of the CDSMD. The phase one questionnaire focused on the status quo in this field of law. The phase two questionnaire was dedicated to the national implementations of art. 17 CDSMD, and the consequences of such implementation. The collected data highlighted both the similarities and, in some cases, remarkable differences in the Member States’ legal systems both before and after art. 17 CDSMD, which cast doubt on the effectiveness of the provision for EU harmonisation in this field.

Chapter 5 uses qualitative methods to map out the copyright content moderation structures of key social media platforms, with a focus on their Terms and Conditions and automated systems. The chapter first presents empirical findings regarding which kinds of public documents and rules have been adopted by a sample of 15 platforms, categorised as mainstream (Facebook, YouTube, Instagram, Twitter, SoundCloud), alternative (Diaspora, Mastodon, DTube, Pixelfed, Audius) and specialised (Vimeo, Twitch, Pornhub, FanFiction, Dribble). It also provides an in-depth longitudinal examination of how the copyright content moderation rules of six case studies (Facebook, SoundCloud, PornHub, FanFiction, Diaspora, and DTube) changed since these platforms’ launch, as well as a comparison between three automated copyright content moderation systems: Content ID (YouTube), Audible Magic (several platforms). and Rights Manager (Meta/Facebook), with a thorough description of the last one. Then, the chapter suggests that two dual processes seem to mark the evolution of platforms’ copyright content moderation structures: (1) over time, these structures became more complex (more rules, spread on more types of documents), and opaquer (harder to access and understand); and (2) the control over copyright content moderation tilted strongly towards platforms themselves, a development that helped concentrate power in the hands of both platforms and large rights holders, at the expense of ordinary users and creators. While not equally true to all platforms we analysed, complexification/opacification, and platformisation/concentration seem to be some of the clearest developments in the recent history of private regulation of copyright content moderation.

Finally, Chapter 6 concludes with a summary of our analysis and recommendations for future policy actions.

Keywords: Copyright, content moderation, intermediaries, online platforms, digital single market, Digital Services Act, terms and conditions