Enforcing copyright online in an age of internet user fundamental rights: reconciling competing paradigms at the user level

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O'Sullivan, Kevin T.
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University College Cork
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This thesis considers contemporary issues in the enforcement of online copyright. In the online context, enforcing copyright can be achieved either by regulating internet companies (also known as intermediaries) or internet users themselves. In the European Union, recent reforms suggest that policymakers wish to focus on regulating internet companies rather than internet users. The reason for this lies in previous attempts at regulating those users by threatening to disconnect their internet access under ‘three-strike’ laws and graduated response systems. These attempts provoked a populist backlash and legal challenges because they were considered to go too far in undermining the fundamental rights of internet users. The commonly held view is that, once stimulated, these rights will now frustrate any attempt to regulate internet users who engage in online piracy. From a policy perspective, maintaining this status quo has been the goal in order to avoid provoking internet users and bringing about further legal challenges. This thesis will argue however that this policy position is likely to change because of the pursuit by the entertainment industry of what may be termed ‘private regulation’. Private regulation aims to enforce copyright through the contract an internet user has with their service provider. Under these schemes, an internet user can lose their internet access for suspected piracy, but this is framed as a private issue of contract and not of fundamental rights. This thesis will argue that regulating internet users through their service contract to protect third party interests in this way is a dangerous precedent and demands a policy response. In examining what that response should be, a doctrinal analysis will be undertaken with a view to modelling a rights-based approach for regulating internet users in this context. This will be underpinned by an analysis of important fundamental rights that are at play in this area, such as internet user informational privacy rights and rights of freedom of expression, and their associated instrumental rights, such as the right to receive and impart information and data protection. Recent developments that have recognised commercial fundamental rights will also be considered. The purpose of this analysis is to identify the substance of these rights with a view to modelling a rights-based approach to enforcement that balances these rights with copyright. The contribution to knowledge will be to model a rights-based approach to enforcing copyright in the EU that answers the challenge of private regulation by advocating for a model that allows for enforcement, but also respects internet user civil liberties in this context.
Copyright , Intellectual property , Fundamental rights
O'Sullivan, K. T. 2020. Enforcing copyright online in an age of internet user fundamental rights: reconciling competing paradigms at the user level. PhD Thesis, University College Cork.
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