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Garstka, Krzysztof (2016) S(h)ifting the cyberspace: searching for effectiveness and human rights balance in the realm of online enforcement schemes aimed at digital content infringing copyright, trademarks, privacy or reputation. PhD thesis, University of Nottingham.

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Abstract

With the development of cyberspace, mankind’s ability to exchange tremendous amounts of information reached astonishing and praise-worthy levels. Unfortunately, such information also includes digital content infringing a variety of legitimate interests, such as copyright, trademarks, privacy, and reputation. Despite the increased regulatory activity of governments from all over the world, aimed at developing adequate legal frameworks governing the removal of access to such content, there are still significant concerns over the performance of this particular branch of online enforcement policy; concerns such as lack of effectiveness, or the impact of the endorsed solutions on the human rights framework.

The following thesis is aimed at responding to those concerns, from the perspective of the European Union’s law. The work’s overarching aim is to devise the most adequate, pan-European legal framework governing the removal of access to online content which infringes copyright, trademarks, privacy or is defamatory in nature. While those four content types differ from one another, this project delivers additional value by discovering such differences (as well as similarities) in the enforcement context, and taking them into account in its analysis and recommendations. The path towards attaining the thesis’ research objective is drawn through the following five chapters.

The first chapter begins by gathering and organising the legal provisions which, if broken, can mark a piece of digital content as one infringing copyright, trademarks, privacy or reputation. The said provisions are then applied to a wide array of factual scenarios in which the described types of infringing content appear in cyberspace. It should be noted that the thesis draws in this context primarily on the EU law; where this is not possible, the UK law is relied on. This is justifiable by the project’s focus on the enforcement schemes, not on the definitions of infringing content.

The second chapter lays out the vast landscape of enforcement schemes endorsed within the EU for the purpose of removing access to the four chosen types of infringing content, both directly and indirectly. Such schemes are divided on those focused on the infringers themselves, and those focused on the intermediaries whose services are used for facilitating the transfer of infringing content. The chapter can be seen as laying out all the tools from the (regulatory) toolbox before deciding which ones to use - or alterate - for the task at hand.

The third chapter is the first of the two key, critically analytical chapters; it seeks to uncover and analyse the main challenges tied to the enforcement schemes’ effectiveness. To this end, it begins by analysing three primary concerns of this kind; the renewal of access to infringing content (on a single platform), movements towards the alternative sources of infringing content, and circumvention of the enforcement schemes’ technological aspects. This is followed by the analysis of the deeper effectiveness-related concerns (which often underlie the primary ones). They include the lack of deterrence, the notion of diminishing returns and the issue of social acceptance of infringing activities.

The fourth chapter explores the human rights implications of the enforcement schemes, with attention given to the balance struck within the EU law between the human rights protected by the said schemes, and those impaired by them. This is attained through two subchapters; the first one introduces the human rights involved and defines their scope, while the second discusses the enforcement schemes’ impact on the three most affected human rights – the right to privacy, the freedom of expression and the freedom to conduct a business.

The conclusive, fifth chapter builds on its predecessors and proposes a fundamental upheaval of the approach to intermediary liability within the EU law, an upheaval aimed at responding to the concerns identified in chapters three and four and improving the degree of legal certainty within this branch of online enforcement. The chapter contains a corresponding proposal for a major reform of the EU legal framework.

Item Type:	Thesis (University of Nottingham only) (PhD)
Supervisors:	Derclaye, Estelle Torremans, Paul
Keywords:	Internet, Law, Copyright, Trademarks, Privacy, Defamation, Intermediary, Enforcement, Online, Effectiveness, Human Rights, EU law, Intellectual Property, IT law, Injunctions
Subjects:	K Law > KJ Europe
Faculties/Schools:	UK Campuses > Faculty of Social Sciences, Law and Education > School of Law
Item ID:	37622
Depositing User:	Garstka, Krzysztof
Date Deposited:	19 Jan 2017 13:56
Last Modified:	11 Apr 2018 01:48
URI:	https://eprints.nottingham.ac.uk/id/eprint/37622

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