PT Journal
AU Lambrecht, M
TI Free Speech by Design – Algorithmic protection of exceptions and limitations in the Copyright DSM directive
SO JIPITEC
PY 2020
BP 68
EP 94
VL 11
IS 1
DE Copyright; DSM Directive; Digital Single Market; Fair balance; Freedom of expression; Fundamental rights; by design; exceptions and limitations; parody; quotation
AB Article 17 of the Directive for Copyright in the Digital Single Market imposes on certain platforms an indirect obligation of algorithmic filtering, while providing a plethora of textual safeguards and guarantees for freedom of speech and legitimate uses. We argue however that this traditional approach of formal safeguards and procedural remedies has proved its inability to effectively protect users' rights to benefit from exceptions and limitations to copyright on digital platforms. We suggest an alternative approach, "free speech by design", aimed at embedding a concern for freedom of expression in the design of algorithmic copyright enforcement systems. Informed by CJEU case law (notably the recent Spiegel Online, Funke Medien and Pelham trio), we will assess how such approach can be leveraged to include, in the implementation of the DSM directive, an algorithmic protection for the exceptions for quotation and parody, which are of particular importance for the right to freedom of expression.
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