Copyright Content Moderation and User’s Interest

Abstract

This paper examines the issues related to copyright content moderation on content-sharing platforms. Specifically, it discusses the EU's Digital Single Market Copyright Directive (DSMCD), relevant court decisions (C-401/19), and the transposition in Germany, the Act on the Copyright Liability of Online Content Sharing Service Provider (UrhDaG), focusing on the importance of regulations that consider user interests.

Article 17(4) of the DSMCD obliges online content-sharing service providers (OSCCPs) to use their best efforts to ensure the unavailability of copyrighted works, and to fulfil this obligation, OSCCPs would inevitably introduce so-called automated upload filters. However, concerns were raised in relation to users' freedom of expression and information, as upload filters may involve over-blocking; the interpretation of Article 17 given in C-490/19, suggests that other provisions of Article 17, such as Article 17(7) and (9), may take measures to prevent blocking of lawful content and to establish effective and prompt complaint procedures to challenge unjustified blocking, and that the provisions of Article 17 as a whole should be balanced, taking into account not only the interests of rights holders and service providers, but also the interests of users.

The UrhDaG has gone one step further with a policy of protection of user interests: Article 9 of the UrhDaG introduces a new category of "uses presumably authorized by law" (uses permissible under any statutory limitation to copyright) that an OCSSP must, in principle, communicate to the public.

In the face of the inevitable use of automatic upload filters, this paper shows that proper content moderation will require (1) considerations of policies for the appropriate design of upload filters, (2) enforcement against OSCCPs, (3) transparency and data access for evaluating upload filters, and (4) the content and legal nature of ex-post remedy procedures (e.g. from the perspective of 'user rights'). It concluded that the discussions in the EU have certain implications for Japanese law and that further study is needed in the future.