Intellectual Property and Online Harms

IP Reading Group Session 2: Intellectual Property and Online Harms

Online harms pose one of the great legislative and regulatory challenges of our time. There is overall consensus that social networking platforms need public regulation: the range of online harms spans from propaganda and disinformation, which is leading to an information crisis and triggering a general lack of public trust in information, to inciting hate crimes, extremist content, cyberbullying and child pornography.

In March 2019, the European Parliament passed the Directive on ‘Copyright in the Digital Single Market’ (DSMD). The DSMD’s aim was to modernise the way content is shared and accessed, thereby making EU copyright regulations ‘fit for the digital age’. Article 13 DSMD proved to be particularly controversial and faced considerable opposition from the online community: While the onus used to lie with the rightsholders to flag copyright infringements on platforms such as YouTube or Facebook, Article 13 DSMD now shifts the liability to tech companies to ensure that their platforms are not facilitating IP violations. Measure taken to curb such breaches include automated pre-filters (algorithms removing content upon upload, before it is shared on the platform), which – as some commentators point out – have trouble distinguishing between parody, counter-speech and genuine infringements.

One month later, in April 2019, the UK Department for Digital, Culture, Media and Sport (DCMS) and the Home Office tabled their joint public consultation on Online Harms, which sought ways to impose a duty of care on social media platforms, in order to prevent harm resulting from certain online content. Alongside proposed tighter controls on technology firms, the UK government suggested the creation of an independent regulator to, inter alia, oversee compliance and take measures to boost digital literacy among the public. The UK White Paper, which is very broad in its scope, has been met with mixed responses, with some experts worrying about its impact on freedom of expression. 

In this session, we will talk about the potential impact of regulatory attempts in this area on intellectual property and freedom of expression online.    

 

Reading:

Online Harms White Paper, 8 April 2019. Available at:

<https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/793360/Online_Harms_White_Paper.pdf>

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (DSMD)

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’)

Kate Klonick, 'The New Governors: The People, Rules, and Processes Governing Online Speech' (2018) 131(6) Harvard Law Review 1598. Available at 

<https://harvardlawreview.org/2018/04/the-new-governors-the-people-rules-and-processes-governing-online-speech/>

Frederick Mostert, ‘Free speech and internet regulation’ (2019) Journal of Intellectual Property Law & Practice. Available at < https://academic.oup.com/jiplp/advance-article- abstract/doi/10.1093/jiplp/jpz074/5522765?redirectedFrom=fulltex>

Eric Goldman, ‘The U.K. Online Harms White Paper and the Internet’s Cable-ized Future’ (2019) Ohio State Tech. LJ, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3438530

 

Additional Reading:

The World Wide Web Foundation, ‘A Contract for the Web’ (Draft July 2019) Available at: https://contractfortheweb.org/draft-07-2019/

Kate Klonick, ‘Opinion, How to Make Facebook’s “Supreme Court’ Work”’ New York Times (17 November 2018) <www.nytimes.com/2018/11/17/opinion/facebook-supreme-court-speech.html>

Emily Taylor, ‘How to rein in the web of lies’ (Chatham House)

<www.chathamhouse.org/publications/twt/how-rein-web-lies>

Felipe Romero-Moreno, ‘” Notice and staydown” and social media: amending the Proposed Directive on Copyright’ (2019) 33 (2) International Review of Law Computers & Technology 187. Available at <www.tandfonline.com/doi/full/10.1080/13600869.2018.1475906>