On 30 March 2022, CREATe Director Martin Kretschmer will speak at the International and European Law Committee of the Rome Bar (“Consiglio dell’Ordine degli Avvocati di Roma”) about the EU and UK approach in regulating Digital Services and Platforms. The event is co-sponsored by the Law Society of England and Wales and the International Chamber of Commerce (ICC Italia). Professor Kretschmer’s talk will draw on recent work with the European Copyright Society and the UK AHRC Creative Industries Policy & Evidence Centre (PEC).
Abstract:
Martin Kretschmer
Copyright, the Digital Services Act, and the new wave of platform regulation: a UK perspective
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.
Links:
- Erickson, K. and Kretschmer, M. (2020) ‘Empirical approaches to Intermediary Liability’, Chapter 5 (pp. 104-121) in The Oxford Handbook of Online Intermediary Liability (ed. G. Frosio), Oxford: OUP (SSRN open access here)
- Kretschmer, M., Furgał, U., Schlesinger, P., The emergence of platform regulation in the UK: an empirical-legal study, AHRC Creative Industries Policy & Evidence Centre (PEC): PEC Discussion Paper and CREATe Working Paper (June 2021)
- Kretschmer, M. and Schlesinger, P., The birth of neo-regulation. Where next for the UK’s approach to platform regulation? AHRC Creative Industries Policy & Evidence Centre (PEC): Policy Brief (November 2021)
- Peukert, Husovec, Kretschmer, Mezei, Quintais (2022) European Copyright Society – Comment on Copyright and the Digital Services Act Proposal
IIC – International Review of Intellectual Property and Competition Law - CREATe Centre Resource: https://www.create.ac.uk/platform-regulation-resource-page/
Programme: International and European Law Committee of the Rome Bar (“Consiglio dell’Ordine degli Avvocati di Roma”)
ITA/UK CROSS-BORDER ISSUES IN THE POST-BREXIT LEGAL CONTEXT/ “PROBLEMATICHE CROSS-BORDER ITA/UK NEL CONTESTO GIURIDICO POST BREXIT”
30 March 2022, from 15:00 to 17:00 (CEST)
(direct streaming from YouTube channel of the “Ordine degli Avvocati di Roma”)
Welcome address/Indirizzo di saluto |
Avv. Antonino Galletti Presidente del Consiglio dell’Ordine degli Avvocati di Roma |
Presentation/Presentazione |
Avv. Giuseppe Gaglione Solicitor and Notary Public – England & Wales |
DIGITAL SERVICES AND PLATFORMS IN THE EU AND THE UK: LEGAL ASPECTS/ “SERVIZI E PIATTAFORME DIGITALI IN EU E UK: PROFILI GIURIDICI”
Introduction and moderation/Introduce e modera |
Avv. Sofia Marchiafava Componente Commissione Diritto Europeo ed Internazionale |
Speakers/Relatori
Takis Tridimas |
Michael Bywell |
Fabrizio Di Benedetto |
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Professore di European Law, Direttore del Centre of European Law, The Dickson Poon School of Law, London |
Solicitor England & Wales,
Hausfeld & Co. LLP, London |
Co-Chair Commissione Concorrenza ICC Italia |
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The Digital Services Act: Fit for Purpose? |
UK Online Safety Bill: Key points and how it differs from the EU Digital Services Act |
A European Perspective on Platforms: The Digital Markets Act |
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Kio Gwilliam | Martin Kretschmer | Alfonso Contaldo |
Anna Drozd |
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Solicitor England & Wales,
Hausfeld & Co. LLP, London |
Professore di Intellectual Property Law, University of Glasgow, Glasgow | Professore di diritto dell’informazione e comunicazione digitale, Accademia Belle Arti, Roma |
EU Policy Adviser UK Law Societies Brussels Office |
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UK Pro-competition Regime for Digital Markets: Key differences to the EU Digital Markets Act |
Copyright and the Digital Services Act from a UK Perspective | Il Digital Services Act in USA e riflessi sulle policy nei paesi dell’UE | Emerging Challenges of Digital Trade: Legal Services and Technology |