Use of filters by online intermediaries and the rights of users: Developments in the European Union, Mexico, India and China

Abstract

Copyright © 2022 the author(s), Digitisation of content has facilitated dissemination of information. Most content today is accessed through online intermediaries who facilitate the uploading, discovery, sharing, delivery and receipt of information. The web, or the participative web as it is commonly known, is considered a place for exchanging content as well as a mechanism enabling creators to reach greater audiences for their works. Despite the advantages of disseminating digital content, online intermediaries have been the hearth of copyright infringements. Public consultation on the modernization of the enforcement of intellectual property rights in 2016 in the European Union drew attention to concerns with the emergence of new online intermediaries while the report of the European Union Intellectual Property Office examining consumption of copyright-infringing content between 2017-2020, of TV programmes, music and film in the 28 EU Member States highlighted numerous issues. Policymakers responded and introduced new legislative frameworks and forced online intermediaries to deploy technological tools to terminate or curb the circulation of unauthorised content. The response was reflected in various jurisdictions including the European Union, Mexico, China and India. Developments in relation to copyright in the Digital Single Market Directive are described. The adoption of filters by online intermediaries to block or filter the content of websites and networks to prevent or stop infringements by users is described and the subsequent concerns identified. Restrictive measures taken have been subject to criticism due to the high margin of error. Filter technology mechanisms are not always able to identify lawful content related to copyright exceptions, sometimes removing content unnecessarily which leads to censorship of content available to users. Technological measures might pose obstacles to users' fundamental rights, namely the right to free speech and the freedom of arts and sciences. An array of measures dealing with the issues is presented.