How the EU Outsources the Task of Human Rights Protection to Platforms and Users: The Case of UGC Monetization

Berkeley Technology Law Journal, Vol. 38, Issue 3, 2023, pp. 933-1010

78 Pages Posted: 28 Apr 2023 Last revised: 11 Mar 2024

See all articles by Martin Senftleben

Martin Senftleben

Institute for Information Law (IViR), University of Amsterdam; University of Amsterdam

João Pedro Quintais

University of Amsterdam - Institute for Information Law (IViR)

Arlette Meiring

University of Amsterdam - Institute for Information Law (IViR)

Date Written: April 4, 2023

Abstract

With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same – highly problematic – approach.

Against this background, the paper discusses the weakening – and potential loss – of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.

Keywords: copyright, user-generated content, liability, content moderation, freedom of expression, proportionality, AI, algorithmic content filtering, derivative work, discrimination, right to property, equal treatment, human rights, division of power, censorship, creative industry, online platforms, hosting

Suggested Citation

Senftleben, Martin and Quintais, João Pedro and Meiring, Arlette, How the EU Outsources the Task of Human Rights Protection to Platforms and Users: The Case of UGC Monetization (April 4, 2023). Berkeley Technology Law Journal, Vol. 38, Issue 3, 2023, pp. 933-1010, Available at SSRN: https://ssrn.com/abstract=4421150 or http://dx.doi.org/10.2139/ssrn.4421150

Martin Senftleben (Contact Author)

Institute for Information Law (IViR), University of Amsterdam ( email )

Rokin 84
Amsterdam, 1012 KX
Netherlands

University of Amsterdam ( email )

Roetersstraat 11
Amsterdam, NE 1018 WB
Netherlands

João Pedro Quintais

University of Amsterdam - Institute for Information Law (IViR) ( email )

Rokin 84
Amsterdam, 1012 KX
Netherlands

HOME PAGE: http://https://www.ivir.nl/profile/quintais/

Arlette Meiring

University of Amsterdam - Institute for Information Law (IViR) ( email )

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