Sebastian Felix Schwemer

The EU Artificial Intelligence (AI) Act: A Commentary p. 1122-1139

Verfassungsblog Doi: https://doi.org/10.59704/3cadaa0214bb419f

The EU Artificial Intelligence (AI) Act: A Commentary p. 1122-1139

IIC - International Review of Intellectual Property and Competition Law 55 p. 157-177 Doi: https://doi.org/10.1007/s40319-023-01409-5

This Opinion describes and summarises the results of the interdisciplinary research carried out by the authors during the course of a three-year project on intermediaries’ practices regarding copyright content moderation. This research includes the mapping of the EU legal framework and intermediaries’ practices regarding copyright content moderation, the evaluation and measuring of the impact of moderation practices and technologies on access and diversity, and a set of policy recommendations. Our recommendations touch on the following topics: the definition of “online content-sharing service provider”; the recognition and operationalisation of user rights; the complementary nature of complaint and redress safeguards; the scope of permissible preventive filtering; the clarification of the relationship between Art. 17 of the new Copyright Directive and the Digital Services Act; monetisation and restrictive content moderation actions; recommender systems and copyright content moderation; transparency and data access for researchers; trade secret protection and transparency of content moderation systems; the relationship between the copyright acquis, the Digital Services Act and the upcoming Artificial Intelligence Act; and human competences in copyright content moderation.

IIC - International Review of Intellectual Property and Competition Law 55 p. 155-177 Doi: https://doi.org/10.1007/s40319-023-01409-5

The EU Artificial Intelligence (AI) Act: A Commentary p. 1140-1148

IIC - International Review of Intellectual Property and Competition Law 55 p. 139-156 Doi: https://doi.org/10.1007/s40319-023-01418-4

Informationsretsaftaler p. 211-237

The EU Artificial Intelligence (AI) Act: A Commentary p. 1140-1148

Informationsretsaftaler p. 1-16

IIC - International Review of Intellectual Property and Competition Law 55 p. 139-156 Doi: https://doi.org/10.1007/s40319-023-01418-4

In certain instances, algorithmic content moderation by online platforms is a process with binary outcomes: those that are “right” and those that are “wrong”. And, in a copyright content moderation context, this binary nature, in principle, holds true: the ultimate question is simply, “Is this content illegal?” However, some content moderation decisions are more straightforward than others that require more robust assessment, whether by domain experts, or even the courts. This article explores the relationship between errors in content moderation decision-making and decision quality, as well as how errors are addressed in the Digital Services Act and the Directive on copyright in the Digital Single Market.

CEUR Workshop Proceedings 3441 p. 103-110

CEUR Workshop Proceedings 3423 p. 81-89

Research Handbook on EU Internet Law p. 232-252 Doi: https://doi.org/10.4337/9781803920887.00020

Kluwer Copyright Blog

Association for Computational Linguistics (ACL). Annual Meeting Conference Proceedings p. 4389-4406

Journal of Intellectual Property, Information Technology and E-Commerce Law 13(1) p. 67-86

Journal of Intellectual Property, Information Technology and E-Commerce Law 13(1) p. 67-86 Doi: https://doi.org/10.2139/ssrn.3785272

In the European Strategy for Data, the European Commission highlighted the EU’s ambition to acquire a leading role in the data economy. At the same time, the Commission conceded that the EU would have to increase its pools of quality data available for use and re-use. In the creative industries, this need for enhanced data quality and interoperability is particularly strong. Without data improvement, unprecedented opportunities for monetising the wide variety of EU creative content and making this content available for new technologies, such as artificial intelligence training systems, will most probably be lost. The problem has a worldwide dimension. While the US have already taken steps to provide an integrated data space for music as of 1 January 2021, the EU is facing major obstacles not only in the field of music but also in other creative industry sectors. Weighing costs and benefits, there can be little doubt that new data improvement initiatives and sufficient investment in a better copyright data infrastructure should play a central role in EU copyright policy. Creating a work-related data flow from copyright owners to online content platforms, Article 17 of the Directive on Copyright in the Digital Single Market could play a central role in this respect. Tapping into this data flow, it becomes possible to establish an EU copyright data repository offering more comprehensive, accurate and interoperable information on works and rightholders than existing data silos.

Kluwer Copyright Blog

European Journal of Risk Regulation 13(2) p. 191-217 Doi: https://doi.org/10.1017/err.2022.1

European Journal of Risk Regulation Doi: https://doi.org/10.1017/err.2022.1

Abstract On 15 December 2020, the European Commission published its proposal for the Digital Services Act, which is expected to be adopted before summer 2022. It carries out a regulatory overhaul of the twenty-one-year-old horizontal rules on intermediary liability in the e-Commerce Directive and introduces new due diligence obligations for intermediary services. Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this article, we look specifically at the intersection of the Digital Services Act with the regime for online content-sharing service providers (OCSSPs) set forth in Article 17 of Directive (EU) 2019/790 on Copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap, as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the Digital Services Act will apply to OCSSPs insofar as it contains rules that regulate matters not covered by Article 17 CDSM Directive, as well as specific rules on matters where Article 17 leaves a margin of discretion to Member States. This includes, to varying degrees, rules in the Digital Services Act relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where Article 17 CDSM Directive contains specific (but less precise) regulation on the matter. From a normative perspective, this might be a desirable outcome, to the extent that the Digital Services Act aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might help us to achieve that goal.

Oslo Law Review 8(1) p. 4-29 Doi: https://doi.org/10.18261/ISSN.2387-3299-2021-01-01

The European Union is currently discussing a reform of its intermediary liability rules with its recently proposed Digital Services Act. The existing rules in the e-Commerce Directive (Directive 2000/31/EC) offer a safe harbour from liability for certain intermediary functions that are central to the functioning of the internet. A safe harbour for intermediaries is one of the regulatory cornerstones that help protect innovation, creativity and the free flow of information. At the same time, these rules are under pressure. This paper discusses a subset of ‘non-hosting’ intermediary functions. Some of these have traditionally been less visible in content-related regulatory debates. We look at selected examples of functions related to the domain name system (DNS), content delivery networks (CDNs), cloud processing and live-streaming. The current liability exemption regime under the e-Commerce Directive focusses on transmission in, or access to, a communication network, as well as storage. However, significant grey areas arise both in relation to what we call the ‘auxiliary network intermediary’ function (as opposed to ‘direct network intermediary’ functions corresponding to ‘mere conduit’ functions), which does not transmit or provide access, and the ‘temporal provision and processing of information’, which is different from storage.

CEUR Workshop Proceedings 2888 p. 69-76

Morals + Machines 1(2) p. 60-69 Doi: https://doi.org/10.5771/2747-5174-2021-2-60

The Routledge Handbook of EU Copyright Law p. 378-395

Oslo Law Review p. 4-29 Doi: https://doi.org/10.18261/ISSN.2387-3299-2021-01-01

Festskrift til Jørgen Blomqvist p. 625-642

NIR : Nordiskt immateriellt rättsskydd p. 400-435

Internet Policy Review 9(1) Doi: https://doi.org/10.14763/2020.1.1448

Journal of Internet Law 22(7) p. 1-21

Lærebog i informationsret p. 477-517

Cambridge University Press Doi: https://doi.org/10.1017/9781108653213

Copyright is territorial, but the same cannot be said of the internet, whose borderless nature has changed the way we consume copyright-protected material. Nevertheless, territorial segmentation of online content remains a reality in the 28 member states of the European Union. Licensing and access practices do not reflect this digital reality, in which end-users demand ubiquitous access to content. For this reason, the territorial nature of copyright and traditional business models based on national exploitation prevent the completion of the Digital Single Market. Sebastian Felix Schwemer provides a unique analysis of the dynamic licensing and access arrangements for audiovisual works and music and shows how they are being addressed by sector regulation and competition law in the Digital Single Market. His analysis, which includes case law of the Court of Justice, the Commission's competition proceedings, and various legislative tools, reveals the overlapping nature of legislative and non-legislative regulatory solutions.

Computer Law and Security Review 35(6) Doi: https://doi.org/10.1016/j.clsr.2019.105339

Intellectual Property Law and Human Rights p. 569-589

International Journal of Law and Information Technology 26(4) p. 273-293 Doi: https://doi.org/10.1093/ijlit/eay012

NIR : Nordiskt immateriellt rättsskydd p. 291-357

Nordisk Tidsskrift for informationsvitenskab- og kulturformidling Doi: https://doi.org/10.7146/ntik.v6i2.99097

NIR : Nordiskt immateriellt rättsskydd p. 697-705

User-Generated Law: Re-Constructing Intellectual Property Law in a Knowledge Society p. 77-98

Handbook on the Economics of Copyright p. 141-164

European Food and Feed Law Review p. 134-142

ReCreating Europe

ReCreating Europe Doi: https://doi.org/10.5281/zenodo.7774111

This report is a deliverable in the reCreating Europe project. The report describes and summarizes the results of our research on the mapping of the EU legal framework and intermediaries’ practices on copyright content moderation and removal. In particular, this report summarizes the results of our previous deliverables and tasks, namely: (1) our Final Report on mapping of EU legal framework and intermediaries’ practices on copyright content moderation and removal; and (2) our Final Evaluation and Measuring Report - impact of moderation practices and technologies on access and diversity. Our previous reports contain a detailed description of the legal and empirical methodology underpinning our research and findings. This report focuses on bringing together these findings in a concise format and advancing policy recommendations. After a brief introductory chapter, Section 2 of the report summarizes the main conclusions and findings from our mapping analysis into content moderation of copyright-protected content on online platforms in the EU. This analysis covers our conceptual framework, copyright content moderation rules at EU and national level, and our empirical research on private regulation by platforms. Regarding the latter, we studied the copyright content moderation structures adopted by 15 social media platforms over time, with a focus on their terms and conditions and automated systems. Section 3 then summarizes the main conclusions and findings from our evaluation analysis. This includes first a legal and normative analysis on multi-level legal frameworks regulating copyright content moderation, which covers an examination of the overlaps and interplay of existing legal frameworks, the development of benchmarks for normative assessment (focusing on concept of “rough justice” and “quality” of moderation), and, with a view to future regulation in this field, a reflection on context and bias in copyright content moderation. The empirical prong of our research addresses the challenging topic of measuring the impact of moderation practices and technologies on access and diversity. To do so, we tackle three dimensions of this problem: (1) we investigate all the aggregated data on copyright moderation provided by the platforms themselves; (2) we analyse content level data of platforms with regard to changes and factors of cultural diversity on social media and streaming platforms, specifically YouTube; (3) we explore creators’ understanding and experiences of copyright moderation in relation to their creative work and the labour of media production on social media platforms Section 4 outlines our policy recommendations for EU and national policymakers. These recommendations touch upon the following topics: the definition of “online content-sharing service provider”; the recognition and operationalisation of user rights; the complementary nature of complaint and redress safeguards; the scope of permissible preventive filtering; the clarification of the relationship between art. 17 CDSMD and the DSA, including as regards the application of fundamental rights through terms and conditions; monetisation and restrictive content moderation actions; recommender systems and copyright content moderation; transparency and data access for researchers; trade secret protection and transparency of content moderation systems; the relationship between art. 17 CDSMD, the DSA and the AI Act Proposal respectively; and human competences in copyright content moderation.

ReCreating Europe Doi: https://doi.org/10.5281/zenodo.7081626

This report is part of the reCreating Europe project and describes the results of the research carried out in the context of Work Package 6 on the mapping of the EU legal framework and intermediaries’ practices on copyright content moderation. The Report addresses the following main research question: 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?

Advokaten p. 52-54

European Commission

Prepared for Directorate-General for Communications Networks, Content and Technology (Unit Future Networks, Next-Generation Internet, F.2)

European Commission

This study is part of the broader evidence collection conducted by the Commission in view of the evaluation of the ECD and preparation of a new Digital Services Act. Its main objective is to inform the Commission on the technological and legal evolution around non-hosting intermediary services and the way the legal framework for such services could be upgraded. The study focuses in particular on the legal clarity in the liability exemption for such services in light of the technical characteristics and nature of the respective services. The overall goal of the study is to provide insights to answer the question whether Article 12 and 13 ECD are still fit for purpose, and –where applicable– to provide recommendations on how the current framework might be updated.

DJØF Forlag

European Union Intellectual Property Office (EUPO) Doi: https://doi.org/10.2814/819909