The Digital Services Act (DSA) sets out numerous “due diligence” obligations for intermediaries concerning any type of illegal information. Copyright infringing content arguably is illegal content under the DSA, and accounts empirically for most take-down decisions by intermediaries. New rules on notice-and-action (Art. 14), statement of reasons (Art. 15), trusted flaggers (Art. 19), and measures and protection against misuse (Art. 20) add a level of specificity not found in the e-Commerce Directive (ECD), nor in the lex specialis of the Copyright in the Digital Single Market Directive (Art. 17, CDSM). The UK chose not to implement the CDSM Directive, nor is the infringement of intellectual property rights a relevant offence that triggers new “duty of care” obligations under the Online Safety Bill published on 17 March 2022 (section 52(8)). However, the Bill also abandons the (Art. 15, ECD) prohibition of “general monitoring”, endorsing “proactive technology” and instituting a new regulatory system based on “codes of practice”. Codes of practice are essentially terms of service negotiated between “high-risk, high-reach” platforms and the regulator Ofcom, with significant executive powers for the Secretary of State. In contrast the proposed EU Digital Services Act only includes vague references to such self- and co-regulatory agreements under Art. 35 (“The Commission and the Board shall encourage and facilitate the drawing up of codes of conduct at Union level to contribute to the proper application of this Regulation”, with a focus on tackling “different types of illegal content and systemic risks”) and under Art. 36 (relating to online advertising). This talk will discuss opportunities and potential pitfalls for Copyright policy from these emerging Codes. Codes of practice and Codes of conduct imply ongoing revision and flexibility, which makes them a potentially attractive regulatory tool for fast developing industries and markets. Unlike statutes, Codes do not involve a complex legislative procedure. They can be more responsive to changing circumstances. On the other hand, a Code’s legal standing and enforcement conditions are often uncertain. State functions may be delegated to private firms without democratic scrutiny and appropriate procedural safeguards.
Ansprechpartnerin: Marina Chugunova