ABSTRACT
As negative rights, intellectual property rights (IPRs) grant a rightholder the ability to prohibit others from carrying out certain specifically restricted acts. Historically, this was something taking place before a court of law. Over the years, with the advance of online IP infringement the arena has changed – from public to private enforcement mechanisms. Furthermore, with the rise of importance of intermediaries, the IPR which has provoked most controversy in this context is copyright law. Thus, the focus of this chapter will be entirely on copyright in the European Union (EU). The chapter studies the shift from public to private copyright enforcement and emphasises the role of online content sharing service providers (OCSSPs), which have now become central in ensuring copyright infringing material stays and does not re-appear online. Crucial to this is Directive 2019/790 and its landmark Article 17, which comes with new liability regime, as well as mitigating safeguards. In this respect, several inclusivity issues emerge, which can be divided in two categories. The former concern freedom of expression as regards underrepresented groups, which found an outlet to divulge their ideas on platforms. The latter turn to the difficult market access for smaller platforms, which are left to compete on an equal footing with big tech. While attempts have been made to address the former by virtue of a Commission guidance, national clever implementations as well as academic studies, the latter is still an issue, which will unfold more clearly in the coming years.
Trapova, Alina, From Public to Private Enforcement – Inclusivity and Copyright Law (August 2, 2023) in Cristiana Sappa (ed), Research Handbook on Intellectual Property and Inclusivity (Edward Elgar) – 2024 Forthcoming.
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