The sleeping digital policeman? Contract override as a key part of better digital governance

At the inception of the internet, there was a sense of idealism. This would be a free and open space, providing new opportunities to produce, share and receive information. People would not rely on access to the infrastructure necessary for publishing or broadcasting in order to find each other.

In the light of this, for a long time, government engagement in the way the internet and the wider digital world is run was resisted.

The fear of interference certainly seems justified in the face of more oppressive regimes which are ready to use the possibilities created by digital tools to track, channel and control their citizens to an unprecedented extent.

However, this should not obscure the other side of the role of governments – to act when it cannot be guaranteed that individual rights and societal benefits will be delivered otherwise.

This is why governments regulate markets, for example to prevent the formation of harmful monopolies, or the selling of unsafe products – things that individual people on their own may not be able to stop.

It is also why we have public services, ensuring that key rights, such as to education or health, are provided (at least in those countries lucky enough to have this).

Either through direct provision, or ensuring that certain behaviours by companies are forbidden, governments help ensure that it is the public interest, not the private, that determines how we live.

This same logic arguably applies to the internet. Here too, there is growing consensus around the need to regulate more effectively the activities of major platforms. Without it, it is argued, it is companies acting according to a profit-motivation that are taking decisions about key aspects of our lives, not governments which (are supposed to) act in the public interest.

At the same time, there is less agreement about how this should be done (for example, the EU Directive on Copyright in the Digital Single Market is arguably a case of trying to use copyright tools to solve a competition problem, clumsily).

This lack of a single approach also creates the space for a race to be the first major world bloc to define a set of governance rules, given that this is likely to set the standard for legislation elsewhere.

The European Union appears determined to set the pace, looking to set itself up to be the world’s leading digital policeman. The Digital Services Act and Digital Markets Act are key planks of this, with measures such as the General Data Protection Regulation and Copyright Directive mentioned above as steps already taken.

However, it isn’t just the action of platforms in collecting and using data, or (mis)using algorithms, that represent an instance of where companies risk being able to determine what people can and cannot do, rather than the public interest.

A primary example here is where the contracts under which we access information digitally take away the rights created by exceptions and limitations to copyright. This is because, unless stated otherwise, a licensing contract simply cancels such rights, even if there is no real opportunity for the user to negotiate or change this.

These rights can stretch from the taking of copies for preservation to use in classrooms, lending, or research copying and sharing, reflecting fundamental rights set out in human rights law, as well as economic good sense in terms of the net benefits that they bring to societies.  They also, arguably, stretch to user privacy – i.e. the right to use a product without being monitored.

By creating exceptions and limitations in the first place, governments have made clear that guaranteeing these rights is a question for public policy.

Yet by failing to protect these from override by contract terms effectively imposed by companies, they are leaving individuals in the same situation as those whose rights and freedoms are curtailed by the actions of major internet platforms.

In other words, if there is a serious desire to ensure that it is governments that take decisions about how people experience the digital world, then there needs to be protection of limitations and exceptions to copyright from override by the terms of contracts.

There have been indications of what is possible with the Directive on Copyright in the Digital Single Market, which protected (at least partially) new exceptions for text and data mining, education and preservation from contractual override (see Article 7). Some countries, inside and outside of Europe, have shown ambition. However, within European law, preventing contracts from overriding usage rights remains the exception not the rule.

The digital policeman still has much to do. 

Ensuring the protection of copyright limitations and exceptions from override by contracts is a key part of the work of the Knowledge Rights 21 Programme. Follow our site for more!