The Semi-Privatization of Digital Copyright Regulation: The Politics of Automated Filtering and Platform Immunity in Canada, the European Union, and the Trans-Pacific Partnership

Abstract

Recent reforms to digital copyright enforcement have given platform intermediaries and large copyright holders the power to sanction billions of underrepresented users worldwide. The automated monitoring, filtering, and removal of user-generated content has mirrored other forms of machine-based decision making, as it provides legal authority to algorithms and privatizes control over legal expression. While there is much debate on the effectiveness of current enforcement methods, there is still much to understand about the politics that influence these changes and the legal and policy frameworks that lead to machine-based decision making.

To fill this gap, this study explores the recent policymaking discourses that have influenced public narratives of automated filtering and the legal outcomes of related regulatory debates. I present three case studies of international and national reforms in one specific area of internet policy: intermediary liability law. These case studies include the Trans-Pacific Partnership in the United States (2016), The Canadian Copyright Modernization Act (2012), and Article 17 of the new Directive on Copyright in the Digital Single Market in the European Union (2018). I have analyzed hundreds of pages of government documents, including hearing transcripts, stakeholder submissions, and government reports to ascertain how reforms to digital copyright enforcement have developed and what this documentary evidence discloses about the politics and the geopolitics that have influenced these changes. Additionally, I analyze the legal and policy frameworks that lead to machine-based decision making, and the implications of automated content controls on social welfare and human rights.