Quintais, De Gregorio and Magalhaes (2023)
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Source Details
| Quintais, De Gregorio and Magalhaes (2023) | |
| Title: | How platforms govern users’ copyright-protected content: Exploring the power of private ordering and its implications |
| Author(s): | João P. Quintais, Giovanni De Gregorio, João C. Magalhães |
| Year: | 2023 |
| Citation: | Quintais, J. P., De Gregorio, G., & Magalhães, J. C. (2023). How platforms govern users’ copyright-protected content: Exploring the power of private ordering and its implications. Computer Law & Security Review, 48. |
| Link(s): | Definitive |
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| About the Data | |
| Data Description: | Terms of Service versions in English for European users of Facebook, Instagram and YouTube published over time. The final data selection contained only the ToS versions that were in place at the end of each years' semesters. Following these criteria, their sample comprises a total of 32 documents: 21 from Facebook, since 2004; 3 from Instagram, since 2011; and 8 from YouTube, since 2005. |
| Data Type: | Primary and Secondary data |
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| Cross Country Study?: | No |
| Comparative Study?: | No |
| Literature review?: | No |
| Government or policy study?: | No |
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Abstract
"Online platforms provide primary points of access to information and other content in the digital age. They foster users’ ability to share ideas and opinions while offering opportunities for cultural and creative industries. In Europe, ownership and use of such expressions is partly governed by a complex web of legislation, sectoral self- and co-regulatory norms. To an important degree, it is also governed by private norms defined by contractual agreements and informal relationships between users and platforms. By adopting policies usually defined as Terms of Service and Community Guidelines, platforms almost unilaterally set use, moderation and enforcement rules, structures and practices (including through algorithmic systems) that govern the access and dissemination of protected content by their users. This private governance of essential means of access, dissemination and expression to (and through) creative content is hardly equitable, though. In fact, it is an expression of how platforms control what users – including users-creators – can say and disseminate online, and how they can monetise their content. As platform power grows, EU law is adjusting by moving towards enhancing the responsibility of platforms for content they host. One crucial example of this is Article 17 of the new Copyright Directive (2019/790), which fundamentally changes the regime and liability of “online content-sharing service providers” (OCSSPs). This complex regime, complemented by rules in the Digital Services Act, sets out a new environment for OCSSPs to design and carry out content moderation, as well as to define their contractual relationship with users, including creators. The latter relationship is characterized by significant power imbalance in favour of platforms, calling into question whether the law can and should do more to protect users-creators. This article addresses the power of large-scale platforms in EU law over their users’ copyright-protected content and its effects on the governance of that content, including on its exploitation and some of its implications for freedom of expression. Our analysis combines legal and empirical methods. We carry our doctrinal legal research to clarify the complex legal regime that governs platforms’ contractual obligations to users and content moderation activities, including the space available for private ordering, with a focus on EU law. From the empirical perspective, we conducted a thematic analysis of most versions of the Terms of Services published over time by the three largest social media platforms in number of users – Facebook, Instagram and YouTube – so as to identify and examine the rules these companies have established to regulate user-generated content, and the ways in which such provisions shifted in the past two decades. In so doing, we unveil how foundational this sort of regulation has always been to platforms’ functioning and how it contributes to defining a system of content exploitation."
Main Results of the Study
After a thematic analysis of the Terms of Service of Facebook, Instagram and YouTube, the authors identified and coded 12 licensing rules related to the ownership of content posted by users. Based on these 12 licensing rules, the authors' key findings were, in short: there is a deeply unbalanced relationship between platforms and user creators. The power of platforms is manifested in their ability to set and unilaterally change the rules governing the use of user-uploaded content. For example, Facebook's licensing rules have been overwhelmingly favourable to the company since its launch in 2004. With the exception of the first half of 2006, pro-platform provisions have always been over-represented in Facebook's Terms of Service. Similarly, the prevalence of user rights fell sharply between 2005 and 2009 and has remained essentially unchanged since, while the proportion of platform rights rose sharply over the same period and has remained largely unchanged since. Like Facebook, Instagram's licensing policy has always been tilted towards the interests of the platform - though not as much as Facebook's. For example, the research shows that the percentage of pro-platform rules in Instagram's ToS has never been below 60%. In contrast, the percentage of pro-user provisions has steadily declined from 2011 to 2018. To some extent, YouTube's licensing rules are less detrimental to users than those of Facebook and Instagram. Although there was a dominance of pro-platform rules from 2005 to 2017, this dominance was never acute. Since 2018, this discrepancy has narrowed. Overall, the research suggests that the history of these three platforms is one of constant and deep inequality between companies and users in terms of who controls and benefits from the content circulating on their services. Even in the case of YouTube, their normative frameworks leave individuals with no choice but to grant these tech companies a very broad licence over the works they post on their platforms. This does not mean that users have no rights. In fact, they say, there seems to be a tendency to mitigate this inequality - a shift that has failed to create a level playing field. Finally, their research suggests that when it comes to monetising user-uploaded content, platforms exercise considerable control over which users are allowed to benefit from this opportunity (typically reserved for large 'corporate' rights holders), and under what conditions and modalities. Crucially, smaller, independent user-creators have less control over their content and fewer opportunities to monetise it.
Policy Implications as Stated By Author
According to the authors, their research shows that 'despite recent legislative changes aimed at curbing the power of big platforms and enhancing their responsibility for illegal content, we conclude that EU law leaves ample space for the regulation “by” platforms of the user-uploaded protected content they host, allowing them to large extent to control and determine the commercial exploitation of their users’ copyright-protected content. ' In this context, they highlight two main issues arising from this unequal TOS-based relationship between platforms and users that may require some policy intervention. The first 'relates to the remuneration of user-creators, and the significant power platforms have over monetisation of user-creators’ copyright-protected content and expression.' They say that their ‘legal analysis indicates the shortcomings of the current legal framework to address this issue, noting however that the DSA has the potential to improve the situation. ‘ The second and related problem is the potential negative impact on users-creators' freedom of speech.
Coverage of Study
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