Content Recognition Technologies A measure for an effective, appropriate, and proportionate digital market?
Citation: Maarten Zeinstra (2017) Content Recognition Technologies A measure for an effective, appropriate, and proportionate digital market?.
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Summary
Research question: "What is the legal and practical compatibility of content recognition technologies [CRTs] with the current acquis communautaire [EU law]?"
Describes status quo of CRTs (which are based on watermarks or fingerprinting) used by internet content platforms, not mandated by law, but used to protect platforms from liability.
CJEU established steps that constitute general monitoring, which exactly match operation of CRTs, therefore CRTs cannot be imposed under the status quo as such would constitute a general monitoring obligation.
Describes policy background for a potential mandate (Article 13) of CRTs: shift of value capture from rightholders to internet platforms.
Analyzes Article 13 language concerning the definitions of Effective, Proportionate, and Appropriate CRTs, and Information Society Service Providers.
Analyzes Article 13 compatibility with EU law concerning equitable obligations, fundamental rights (freedom of expression, privacy, balance of rights), and the E-Commerce directive, and practical issues with territorial interoperability, definitions of content, copyright exceptions and limitations, and copyright formalities.
Concludes that CRTs are commonplace now, mandatory CRTs are not compatible with current EU law, and recommends even voluntary CRTs be regulated for compatibility with EU law, and policymakers "should rather focus on creating open standards and ways to lower the costs of implementing voluntary CRTs for ISSPs."
