Going big, one problem at a time: Europe’s regulation of digital services and markets gathers pace

Remy Chavannes, Anke Strijbos and Dorien Verhulst[1]

While European courts are still working to interpret digital laws from the early years of the century, the EU legislative machine is rapidly churning out new regulations and directives designed to protect online consumers and competitors from the perceived abuses and vast carelessness of the global tech platforms. The dominant narrative is that, after two decades of under-regulation benefiting mainly non-European companies, it is time for regulatory catch-up, with rules which are much more closely targeted at the digital services and problems of today. In the process, the contours of a European “law of the internet”[2] are fast coming into focus. Coupled with major new initiatives in the sphere of data, data governance and artificial intelligence, all signs point to the emergence of an overarching EU regime for tech regulation – albeit one still struggling for coherence and consistency.

This overview of recent developments in EU digital regulation will be published in “Legal Frontiers in Digital Media,” MLRC Bulletin (June 2021).

Continue reading “Going big, one problem at a time: Europe’s regulation of digital services and markets gathers pace”

EU Influence on U.S. Internet Law, Policy and Practice in the field of digital advertising

Presentation to the Yale Law School / Floyd Abrams Institute conference “Commercial Speech and the First Amendment 2020” 

2 June 2020


In keeping with the subject of today’s conference, I will focus on the regulation of online advertising, talking briefly about the existing situation and then focusing on what’s coming next. I will occasionally zoom out to look at EU regulation of online platforms more broadly.  

What a time it is to be talking about platform regulation! We have no Donald Trump in Europe, but we do have lots of other presidents. The techlash over here is almost as heated, and the basic issues around platform responsibility are similar: should tech companies be doing more, i.e. taking greater responsibility for keeping their platforms safe and lawful, and for dealing with the negative externalities of their success? Should they be doing less, e.g. to interfere with their users’ speech and/or personal data? Commercial speech and political advertising are a core part of the debate. As in the US, the European debate is throwing up a broad range of concerns and demands, which are diffuse and often contradictory, but which are also so heated and repeated that some kind of additional regulation is all but inevitable. A major new EU legislative initiative launched just this morning, which I will get to. Continue reading “EU Influence on U.S. Internet Law, Policy and Practice in the field of digital advertising”

Regulation of Online Platforms in the European Union – The State of Play

For the past two decades, the 2000 Electronic Commerce Directive has been the cornerstone of internet regulation in the European Union, and its safe harbors have played a crucial part in the creation of the modern internet.[1] In recent years, however, rightholders, politicians, civil society groups and others have increasingly challenged the status quo, arguing that Europe has naively allowed itself to be exploited by unaccountable – mostly American – tech giants. Although these critics often disagree strongly about exactly what needs to be done and why, they have convinced legislators that something must be done. As a result, dozens of laws have been passed or proposed at the EU level in the last few years, transforming the legal environment in which platforms operate on everything from privacy, copyright, and free speech to competition, labor law, and tax. By acting first and asking questions later, the EU is hard at work establishing a de facto global standard for tech regulation.[2]

The process is anything but smooth, and not everyone is convinced of the quality, cohesion or wisdom of the EU’s regulatory approach. Like it or loathe it, however, EU regulation has become a significant business concern for global tech companies. Although Europe’s population is dwarfed by those of rising powers such as China and India, its market of 500 million affluent consumers spread over 28 – more or less – coordinated member states is hard to ignore. Moreover, its regulatory innovations have a habit of catching on in other jurisdictions, and some elements of its approach to Big Tech are even gaining traction in the US.[3] The EU is also projecting power beyond its borders by promoting its regulatory agenda within international bodies like the G7 and the OECD.[4]

In this article, we discuss the current state of online platform regulation in Europe.[5] European intermediary liability has law traditionally focused on the liability of internet access and hosting providers for their users’ unlawful activities, leaving it up to individual member states’ national law to craft a wide range of Good Samaritan obligations in relation to, for example, the production of subscriber data or the blocking of infringing websites. In recent years, this discussion has become more fundamental, more wide-ranging, and more fragmented, all at the same time. The essential question is what online platforms must do to keep their services safe and lawful, and to what extent they are responsible when they fail to do so.

Publication with Dorien Verhulst in MLRC Bulletin: Legal Frontiers in Digital Media 2019/1 – now paywalled, full text continues below.

Continue reading “Regulation of Online Platforms in the European Union – The State of Play”

IP protection of deep learning systems

On 15 June 2018, the Dutch Association for Copyright (VvA) organised a study session on the interaction between intellectual property and artificial intelligence. While this issue is often approached in terms of IP protection of artificial works and inventions, the first session considered the IP protection of deep learning systems themselves. Jean-Marc Deltorn of CEIPI (University of Strasbourg) gave a detailed presentation. I delivered a brief response, which contained a number of specific questions about Mr. Deltorn’s presentation, and also raised some broader issues about the extent to which further IP protection of deep learning systems is necessary and the impact of deep learning creations on the market for human-created works.

Both papers have been published in the Dutch copyright journal AMI, and a pdf of mine is available here. The English version follows below.

Continue reading “IP protection of deep learning systems”

Communication to the public in Europe

Communication to the public in Europe: recent developments in EU copyright law in relation to digital media services

This paper, prepared for the 2018 AIPLA Annual Meeting in Washington, DC (slides available here), provides an introduction to the remarkable recent body of case law of the Court of Justice of the European Union (CJEU) on the author’s exclusive right of communication to the public in relation to digital media services. It places this case law in the context of purpose and setup of the CJEU’s preliminary reference procedure, and of pending EU legislative developments that will further muddy the waters for providers of digital media services.

In the last two years, the CJEU has ruled that hyperlinking to a work on a third-party website that you have reason to believe was uploaded unlawfully is a communication to the public of that work;[1] that selling fully-loaded Kodi hardware boxes is a communication to the public of the content that users view on it;[2] that torrent-indexing sites infringe copyright;[3] that offering a cloud-based personal video recorder service infringes the communication to the public right; and that publishing a school presentation containing a photo taken from a travel website requires the photographer’s permission.[4]

With its recent decisions, the CJEU has all but abandoned any notion that the author’s exclusive right to authorize “communication to the public” refers to a technically, objectively delineated set of actions that involve the actual transmission of protected works – notwithstanding the recital to the 2001 EU Copyright Directive which ostensibly limits the scope of the right to the transmission or retransmission of a work to the public not present at the place where the communication originates.[5] The Court has redefined the concept in considerably more subjective and functional terms. Indeed, one might be forgiven for concluding that the CJEU essentially considers any deliberate for-profit facilitation of access to copyright-protected information to require the rightholder’s permission.

Understanding the CJEU’s recent decisions about the communication to the public right, and identifying a broader coherence in the case law as a whole, is a challenge for practitioners both in the EU and beyond. Lawyers not familiar with EU procedural law face an additional interpretative hurdle, in that the CJEU’s role and procedures are unique and subtle. The CJEU is not a supreme court, and its role is entirely different to that of, for example, the US Supreme Court in shaping US copyright law.

Adding a further layer of complexity to EU digital copyright law, a proposed Directive on Copyright in the Digital Singe Market, currently being finalised,[6] seeks substantially to erode the safe harbour regime for online intermediaries, providing that “online content sharing service providers” bear primary liability for their users’ infringing uploads unless they install proactive copyright filters. The proposed directive will also give news publishers additional rights to restrict digital uses of their press publications, posing new challenges to the way that news is referenced and shared online. Continue reading “Communication to the public in Europe”

Balancing in EU copyright law

During the 2018 AIPPI World Congress, a panel session was held to discuss the means by which copyright laws in different jurisdictions seek to achieve balance between copyright and other rights and interests. Once mostly achieved through exceptions and limitations, recent developments show an increasing role for other doctrines and methodologies. In Europe, balancing has moved increasingly into the sphere of constitutional law. The Court of Justice of the European Union has established that the protection of copyright is a fundamental right, which must be balanced against other fundamental rights, including the freedom of expression and of information, the freedom to conduct a business, and the protection of privacy and personal data.

The situation in Mexico and the United States was addressed by Ms. Irely Aquique, and Mr. Gregory Sebald respectively.

My presentation on balancing copyright in EU law is available here. It  addresses three kinds of balancing:

  1. ‘traditional’ balancing: copyright rules designed to protect other rights and interests;
  2. ‘internal constitutional balancing’: where fundamental rights are used to interpret copyright rules, specifically when defining the scope of the exclusive right, when interpreting exceptions and limitations, when assessing the suitability of specific enforcement measures; and, possibly, when defining copyrightable subject-matter; and
  3. ‘external constitutional balancing’, where other fundamental rights operate as an autonomous limitation to copyright, outside the statutory system of exceptions and limitations, i.e. where another overriding fundamental right ‘trumps’ copyright.

A neighbouring right for press publishers – the wrong solution to a serious problem

There are just three days to go until the European Commission’s public consultation on “the role of publishers in the copyright value chain” closes. Although the Commission’s explanatory statement hardly makes this clear, it is considering a legislative initiative that could have a far-reaching impact, not just on press publishers, but on the platforms, services and users that press publishers desperately need in order to make a living in the age of digital abundance.

There is no doubt that press publishers are facing an enormous, if not existential existential threat: print advertising and subscription revenues are drying up much more quickly than digital revenues are replacing them. Journalists are being fired as newspapers and magazines – both national and regional – are being downsized or closed. The journalists that remain are increasingly outnumbered by communications professionals spinning their public or private employers’ preferred angle.

It is not obvious to me – nor, it seems, to many publishers  how the commercial viability of the press can be restored in the medium to long term. Its current challenges are related to secular trends, such as the abundant availability of low-cost “basic” news; and changes in consumer preferences, such as unbundling of digital content and reluctance to pay for “premium” content such as quality journalism. Given that the survival of independent, quality journalism and public scrutiny of government and business are at stake, and that the issues facing the press transcend national borders, it makes sense to investigate whether anything useful can be done at the EU level.

Mysteriously, however, the European Commission is not soliciting input on what is happening in the press sector, what might be causing it, what is at stake and what kinds of measures might be feasible. Rather, it is consulting on a very specific measure, the introduction of a neighbouring right for press publishers. The consultation does not explain why it might be helpful in alleviating the sector’s problems, nor even the basics of what such a right might entail (e.g. who gets a right, what does it protect against, is it a prohibition or remuneration right, is it individually or collectively exercised, is it waivable or transferable, etc.). Rather, it is asking what the impact of this undefined neighbouring right would be on publishers, authors, researchers, consumers and intermediaries.

In fact, there is precious little indication that the challenges currently being faced by press publishers are due to the lack of sufficiently broad intellectual property rights. And if insufficient IP rights are not a significant part of the problem, increasing IP rights is unlikely to be a significant part of the solution. At a recent conference in Amsterdam, speakers from publishers, academia, politics, civil society and the internet sector were in near-total agreement that a neighbouring right for publishers would solve nothing at best. It would seem more fruitful to investigate other ways in which the position and prospects of publishers of quality journalism can be increased, e.g. via subsidies, tax facilities, the partial repurposing of public broadcasting funds, or other measures that reflect the significant value to a democratic society of having a vigorous, free and independent press.

Implementation of a neighbouring right would bring significant uncertainty, costs and risks, not just to authors and publishers, but also to the eclectic group of platforms, intermediaries and other service providers that play a role in facilitating the publication, discovery and consumption of press content. Larger, existing broad-based platforms will be incentivised to reduce or remove service features that might trigger the new neighbouring right. New entrants are likely to be discouraged, particularly new entrants who want specifically to serve the market for finding and consuming press content. Depending on the scope of any neighbouring right, moreover, it could also negatively impact providers of social networks as well as providers access, caching and hosting services. Increasing costs, complexity and uncertainty for such a broad category of service providers threatens the free flow of information and investment in – and availability of – innovative digital services, as well as the commercial prospects for publishers and authors.

The commercial viability of press publishers is a very important issue, that deserves serious attention and a willingness to investigate all possible solutions. However, by focusing the discussion, right at the outset, on a specific and probably irrelevant IP measure, the European Commission runs the risk of distracting minds from discovering and implementing new business models for the age of digital abundance, including accepting and embracing unbundling and new consumer preferences. Moreover, if a neighbouring right is ever implemented, it is likely form an an actual impediment to innovation on the part of both publishers and aggregation platforms, therefore actively harming publishers’ ability to find and monetise audiences for their products.

Filtering away infringement – mock trial

During the Information Influx conference organised by the Institute for Information Law, I took part in a mock trial against Prof. Dirk Visser on the merits – or lack thereof – of ordering internet intermediaries to filter or block infringing online content.

The debate was part of a panel entitled Filtering away Infringement: Copyright, Injunctions and the Role of ISPs.  A write-up can be found here.