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Giancarlo Frosio: “A New Social Covenant for Online Creativity in the Algorithmic Society: Lessons from the CJEU”

The Amsterdam Law & Technology Institute’s team is inviting scholars to publish guest articles in the ALTI Forum. Here is the latest contribution authored by Giancarlo Frosio (Queen’s University Belfast School of Law).


Negroponte used to say that copyright law ‘is a Gutenberg artifact […] since it is a reactive process, it will have to break down completely before it is corrected’. So far, Negroponte’s call for an overhaul of the system has been left unanswered. The emerging challenges brought about by the information, platform and algorithmic society have been addressed only via sub-optimal solutions. Article 17 of Directive 790/19/EU, for example, has reinforced an outdated theoretical perspective, keeping industry players at the centre of the copyright bargain and leaving users on the peripherals. However, the centrality of users’ rights has been recently reiterated by the Grand Chamber of the CJEU in the Case C-401/19 of 26 April 2022, possibly acknowledging a fundamental right of users to share content online that cannot be limited by algorithmic content moderation and providing a blueprint for a new social covenant for online creativity.

Digitisation has posed the biggest challenge to copyright protection and the proper balance between multiple interests at stake. Since the early stages of the information society, those challenges have multiplied with the advent of the platform society and, more recently, the algorithmic society. “Information wants to be free” but they are “immeasurably valuable”, so identical copies of protected works that can be multiplicated endlessly at close to zero marginal cost represent an unprecedent threat to copyrightholders. Platforms might aid in disseminating protected content online and, in doing so, might internalise substantial value that belongs to creators. Finally, with the advent of all-powerful, ubiquitous algorithms, copyright enforcement has been delegated to automated means. These tools are inherently incapable of equity assessment of privileged uses of protected content, and thus inherently infringe upon users’ freedom of expression. By inherently limiting freedom of expression online, automated content moderation hinders democratization and evokes disturbing dystopian future scenarios.

For quite some time, cultural and high-tech conglomerates have held a monopoly over copyright reforms as Jessica Litman explained in Digital Copyright. In fact, “[c]opyright doctrine […] is characterized by the absence of the user […] the resulting imbalance […] makes for bad theory, bad policy, and bad law”. Actually, “copyright, which was originally intended to promote the interests of the public, presents itself increasingly as a protection of the interests of some few, private entities”. As well as users, creators have been playing a minor role in present copyright policy, which is distributor-centred, rather than author-centred. Jane Ginsburg develops this point by noting that “[i]n contemporary debates over copyright, the figure of the author is too-often absent […] as a result, these discussions tend to lose sight of copyright’s role in fostering creativity”. Mançur Olson explains the irrelevance of users and creators by noting how copyright policy is driven by a small group of concentrated players to the detriment of the more dispersed interest of smaller players and the public at large.

Industry dominance in copyright matters might be the result of a long-standing misperception regarding the true nature of copyright law. Historically, the social function of intellectual property and emphasis on the Habermasian public sphere have actually characterized the genesis of private entitlements over creativity to the extent that Lindberg and Patterson have suggested that the nature of copyright law is to be a users’ right. Welfare theories based on economic analysis of law – endorsing a communitarian rather than an individualistic justification of copyright, and intellectual property law at large – have become increasingly influential also outside the United States. The European Union might also increasingly sideline individual natural rights justifications of copyright law and instead pursue a public interest-oriented agenda that aims at promoting “social market economy, […] social progress […] scientific and technological advance” as programmatically stated by Article 3(3) of the TEU and increasingly reiterated by the Court of Justice of the European Union (CJEU) in the context of copyright and users’ rights. Furthermore, the present era of user-generated content (UGC) and peer-based distribution makes the Article 17-like approaches counterintuitive as they fail to acknowledge fundamental changes in society. First, digital creativity online is increasingly disintermediated, making the distinction between users and creators progressively more ambiguous. The creation of content is no longer conducted only by professionals but has become common place for the general public. Second, social media, online file sharing platforms and video sharing sites have made the sharing of content easier and provide the opportunity for remote creative collaboration. Third, the digitalisation and networked distribution of content has led to a major revolution in online communities. Digital creativity is reliant on community interactions as a result of participatory culture to promote identity and diversity. In this light, digital policies must promote digital community-based creativity via measures that allow creators to access the marketplace and achieve remuneration. Instead, rather than adapting the law to make it easier, and legal, for users “to do something commonplace” and fully enjoy their freedom of expression and artistic creativity, the law has been constructed so that online gatekeepers are incentivised to proactively prevent, block, filter and sanitize commonplace digital creativity.

In the “copyright wars” that have been fought online for almost three decades now, the users continue to remain an accidental casualty. This time the friendly fire comes from machines that are meant to protect copyright but, in doing so, block lawful content and hamper  the users’ fundamental right to share. Instead, users should be at the center stage of the copyright debate, so that copyright law can be construed first and foremost as a “users’ right” that promotes freedom of expression and information under a “user-based copyright theory for commonplace creativity”. To that end, copyright law and creativity policies in the digital environment need a new social covenant that reconciles the interests of platforms, rightholders and users.

The terms of the debate that online (copyright) content moderation entails, via filtering and monitoring and the use of automated tools in particular, has been spelled out by the CJEU multiple times. When imposing obligations on internet service providers a trifecta of interests must be taken into consideration, including “(i) copyrights and related rights, which are intellectual property and are therefore protected under Article 17(2) of the Charter, (ii) the freedom to conduct a business, which economic agents such as internet service providers enjoy under Article 16 of the Charter, and (iii) the freedom of information of internet users, whose protection is ensured by Article 11 of the Charter”.

In balancing these conflicting interests, a new road map for copyright enforcement online might be emerging thanks to the CJEU. In C-401/19, the CJEU has reviewed the compliance of proactive filtering in user-generated content platform with the protection of freedom of expression. The decision should serve as a blueprint for a new social covenant that better balances out multiple competing interests at stake in online creativity. In C-401/19, the CJEU strengthens the centrality of the user in copyright discourse by redressing misperceptions on the role of copyright protection and proportional balancing of competing rights that recent legislation, such as Article 17 of Directive 790/19/EU, might have brought about. The CJEU does so by implying the existence of a fundamental right of users to share content lawfully and make lawful use of protected content on online platforms by noting that the “implementation of the obligations imposed on those service providers cannot, in particular, lead to the latter’s taking measures which would affect the essence of that fundamental right of users who share content on their platforms which does not infringe copyright and related rights” (C-401/19, para 80).

A users’ fundamental right to share should guide the construction of European copyright law – as well as the implementation of copyright enforcement mechanisms online, such as Article 17 of Directive 790/2019/EU (para 99), so that no action can be undertaken by platforms in collaboration with rightholders that limit such fundamental right to share. In this context, the CJEU stresses, as done already in Telekabel and Funke Medien, that nothing in the wording of Article 17(2) of the Charter or in the Court’s case-law suggest that copyright is inviolable and must therefore be protected as an absolute right (para 92). Instead, a fundamental right to share lawful content, which is a qualification of freedom of expression, should be construed as a superior right. This conclusion is qualified in the context of copyright enforcement online by highlighting the superior stance of the rights provided for in Article 17(7) versus the obligations in Article 17(4) of Directive 790/2019/EU. According to the CJEU, Art. 17(7) is not limited to requiring online content-sharing service providers to make their ‘best efforts’ to make available user-generated content for purposes of  quotation, criticism, review, caricature, parody or pastiche, as in the case of the obligations provided for in Art. 17(4), but prescribes a specific result to be achieved (para 78). In enforcing this new fundamental right to share lawful content, the CJEU clarifies a set of principles that should govern user-generated creativity online and guide the conclusion of a new social covenant between platforms, rightholders and users:

  • (1) users enjoy a fundamental right to share lawful content (para 80);
  • (2) intellectual property rights must be protected (para 82) but they are not absolute (para 92);
  • (3) any limitation of freedom of expression of online users must respect the essence of the right of freedom of expression (para 76);
  • (3.1) thus, such limitations shall not result in the prevention of the availability of lawful works, and in particular they should not affect legitimate uses, such as exceptions and limitations (para 79);
  • (3.2) no obligations can be imposed on service providers, whose implementation leads to such result (para 80);
  • (4) the need for safeguards to freedom of expression is all the greater where the interference stems from an automated process (para 67);
  • (4.1) filtering systems which do not distinguish adequately between unlawful and lawful content are incompatible with freedom of expression (para 86);
  • (4.2) in particular, in order not to disproportionately restrict freedom of expression of users, measures filtering and blocking lawful content when uploading must be excluded (para 85);
  • (4.3) in addition, measures adopted by service providers must be strictly targeted (para 81);
  • (4.4) so that filtering does not (must not) lead to general monitoring, meaning that service providers cannot be required to block content that to be found unlawful would require an independent assessment of the content and copyright exceptions and limitations that might apply to it (para 90);
  • (4.5) thus, filtering and blocking when uploading must be limited to manifestly infringing content or “likely infringing uploads”, as only manifestly infringing content does not require independent assessment of the lawfulness of content.

As an important step in “reconciling copyright with cumulative creativity”, the acknowledgment of a fundamental right of users to share lawful content – coupled by safeguards against its limitation especially via ubiquitous automated tools – serves as a powerful grundnorm for a new social covenant for online creativity. This covenant should also endorse the corollary principle that the law must not induce architectural changes that make unlawful creative activities beyond the law. The CJEU decision in C-401/19, should be read as a programmatic statement that copyright law – and algorithmic tools that might enforce copyright online – should not hinder the development, or the existence altogether, of new forms of cultural and artistic expression, which are in fact a reflection of broader societal changes that the Internet revolution and the sharing economy have brought about. A new social covenant for online creativity in the algorithmic society must depart from outdated individualistic justifications of value allocation in rights’ management and refocus policy priorities towards communitarian and user-centered prospective goals. 


Citation: Giancarlo Frosio, A New Social Covenant for Online Creativity in the Algorithmic Society: Lessons from the CJEU, ALTI Forum, October 10, 2022

Image by DeepMind

Invited by Thibault Schrepel

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