D6.1 Interim report on mapping of EU legal framework and intermediaries' practices on copyright content moderation and removal
Creators: name: Quintais, João Pedro
name: Mezei, Peter
name: Istvan Harkai
name: Magalhães, João Carlos
name: Katzenbach, Christian
name: Schwemer, Sebastian Felix
name: Riis, Thomas
Publisher: name: Zenodo
Year: 2021
Subjects: copyright

description: This interim report consists of six chapters. Chapter 1 includes a brief introduction and outline of the Interim Report. Chapter 2 identifies our research questions, sets out our conceptual framework and methodology.The main research question of this Interim Mapping Report is as follows: How can we map the impact on access to culture in the Digital Single Market (DSM) of content moderation of copyright-protected content on online platforms? For the purposes of this Interim Report, we can divide this research question in the following sub-research questions (SQR) .-SQR1: How to conceptualise and approach from a methodological approach the interdisciplinary analysis of content moderation of copyright-protected content on online platforms and its impact on access to culture in the DSM? -SQR2:How is the private and public regulatory framework for content moderation for online platforms structured? -SQR3:How do the various elements of that regulatory framework interact? -SQR4:How are copyright content moderation rules organized by platforms? -SQR5:What kind of copyright content moderation rules do platforms employ? -SQR6:Which copyright content moderation rules do platforms employ? -SQR7:How are the various elements of the regulatory framework and the online platforms' policies etc. likely to impact access to culture in DSM? Chapter 3 carries out a legal mapping of the topic of this report at EU level. This corresponds to our ongoing work on Task T.6.1.1 (EU Level Mapping). Our main focus here is the legal regime of art. 17 of the CDSM Directive. To explain this complex provision and its implications, we first provide some context on the legal regime that precedes the CDSM Directive. We then briefly explain the legislative process leading to the adoption of the CDSM Directive, followed by a snapshot of the legal regime, and some preliminary remarks relating to the European Commission’s stakeholder consultations and Guidelines on art. 17, and the action for annulment of art. 17 initiated by the Polish government in Case C-401/19. We then offer a detailed analysis of art. 17, with an emphasis on its liability regime and rules with implication for copyright content moderation by OCSSPs, as well as an examination of its interface with the Digital Services Act proposal. Chapter 4 follows up on this analysis with preliminary findings of our comparative legal research at national level. The findings are based on legal questionnaires carried out with national experts in ten Member States. This corresponds to our work thus far on Task T.6.1.2 (Comparative National Level Mapping). The comparative analysis has evidenced the sensible differences of the national legal systems of 10 EU Member States. The analysis has addressed the direct and indirect liability of intermediaries, end-users' liability in the pre-CDSM landscape. It also tracked the implementation experiences of the Member States related to art. 17 CDSM Directive. The collected data highlighted similar and remarkedly different doctrinal and practical issues present in the Member States legal system. These differences necessarily mean that the implementation of art. 17 will pose significantly different challenges for the Member States, which can ultimately challenge the effectiveness of the newly introduced regime. Chapter 5 describes our research on private regulation by platforms. This corresponds to the empirical research carried out in the context of Task T.6.1.3 (Private Regulations by Platforms: ToS, Community Guidelines). It mainly discusses and compares how the copyright content moderation regime of rules of two platforms (Facebook and Diaspora) changed over time in terms of their organization, kinds and content. Based on the qualitative analysis of dozens of versions of policy-like documents published by the platforms, and using mostly descriptive statistics to present the findings, the chapter arrives at four tentative conclusions: (1) platforms’ copyright content moderation regimes became more complex, with more rules and spread on more types of documents; (2) over time, responsibilities over copyright content moderation tilted strongly towards platforms themselves, despite the fact that much of the discourse on their policies about the issue remained focussed on users’ self-regulatory actions; (3) in the past decade or so, rules that explicitly mentioned copyright content moderation became less prevalent, signalling a weakening of the status of this particular topic vis-à-vis broader concerns with content moderation; (4) Despite going towards the same overall direction, Facebook (a mainstream platform), changed much faster and more intensively than Diaspora (an alternative platform), a discrepancy that cannot be explained by regulatory shifts alone. Finally, Chapter 6provides a summary of the preceding analysis, identifies the normative angles for subsequent research, and describes the next steps in the project. The deliverable is under acceptance by the European Commission.