Online Intermediary Liability and Privatised Enforcement: the Content ID Case

Abstract

Over the last two decades, the use of technologies to promulgate information at the click of a mouse has given rise to unprecedented access to information but has also facilitated the infringement of rights. There have been a number of responses by legislative bodies attempting to recover ground lost by rightsholders in this new environment. Some are reviewed in this paper. The problem facing legislators is that they wish to protect rightsholders without stifling the benefits of easy access to knowledge, information and data, hopefully maximising the advantages and societal benefits of improved accessibility. Content hosts, such as YouTube, suffer under a similar dichotomy but also face the prospect of litigation. Tools such as "Content ID" provide rightsholders with a means of combating potential infringements without litigation. However, as with legislation, it is not a panacea for reaching the balance between facilitating access and protecting rights. This paper illustrates these issues and underlines the importance of an approach that safeguards fundamental rights and freedoms and strikes a fair balance among the different rights involved. Technology can play a crucial role in this attempt.