Democratic Discourse in the Digital Public Sphere: Re-imagining Copyright Enforcement on Online Social Media Platforms

Abstract

Within the current European Union (EU) online copyright enforcement regime—of which Article 17 of the Copyright in the Digital Single Market Directive [2019] constitutes the seminal legal provision—the role of online content-sharing service providers (OCSSPs) is limited to ensuring that copyright owners obtain fair remuneration for content shared over their platforms (role of “content distributors”) and preventing unauthorized uses of copyright-protected content (“Internet police”). Neither role allows for a recognition of OCSSPs’ role as facilitators of democratic discourse and the duty incumbent on them to ensure that users’ freedom to engage in democratic discourse are preserved. This chapter proposes a re-imagining of the EU legal framework on online copyright enforcement—using the social planning theory of copyright law as a normative framework—to increase its fitness for preserving and promoting copyright law’s democracy-enhancing function.

Copyright Enforcement on Social Media Platforms: Implications for Freedom of Expression in the Digital Public Sphere

“…The need for a fundamental shift in the theoretical framework of EU copyright law based on the communicational (a.k.a. social planning) theory of copyright law has been advocated with the aim of recognizing and giving effect to copyright law's potential to serve as a legal tool for fostering robust democratic discourse in the digital public sphere (Mendis, 2021).…”