Virtues and perils of content regulation in the EU – A toolkit for a balanced algorithmic copyright enforcement

Within the recent European policies and actions on illegal content, a trend towards algorithmic enforcement of content regulation has emerged. Regardless of the nature of the content, hard and soft law provisions more or less explicitly require online platforms to resort to technological systems to comply with the law. The use of technology to enforce the law is certainly not new, especially in the realm of copyright law. Copyright law is indeed the perfect example of how the adoption of technology by online intermediaries has over the time altered the contours of the law itself. The last step in this process is the employment of algorithmic systems to filter content uploaded by third parties and the use of autonomous decision-making to select the content that can appear online. This not only determines a shift from an ex post to an ex ante algorithmic enforcement but also clashes with the current safe harbor regime as, regardless of the wave of legislative interventions that have introduced several new rules on content, the conditional liability regime for online platforms has been left untouched, or rather, uncoordinated. This legislative move towards algorithmically enforcing legal rules and content regulation raises concerns not only as to its consistency with the current legal framework but also – and more worrisomely – as to its impact on individual rights and societal development in general. As to now the solutions proposed in literature and the few safeguards adopted at legislative level do not seem capable to overcome the shortcoming of algorithmic copyright enforcement, and a more coordinated and balanced action ought to be undertaken. For this reason, this paper proposes a regulatory toolkit for a more balanced algorithmic copyright enforcement that could, hopefully, also provide insights for a better algorithmic society overall. The starting point is the adoption of a principle for a more balanced algorithmic copyright enforcement regime, which translates into the need for open record policies and a right to explanation. This in turn is coupled with the obligation of a right-based impact assessment and a right to audit. The regulatory toolkit herein formulated represents a first step towards a more coordinated approach to algorithmic copyright enforcement and it contributes to the current debate on algorithmic enforcement by introducing the discussion on “balance by design”, i.e. the engineering of online platforms from their beginning in a way that takes into consideration all the rights involved