Copyright Liability and Generative AI: What’s the Way Forward?

Copyright Liability and Generative AI: What’s the Way Forward? external link

2025

Abstract

This paper examines the intricate relationship between copyright liability and generative AI, focusing on legal challenges at the output stage of AI content generation. As AI technology advances, questions regarding copyright infringement and attribution of liability have become increasingly pressing and complex, requiring a revision of existing rules and theories. The paper navigates the European copyright framework and offers insights from Swedish copyright law on unharmonized aspects of liability, reviewing key case law from the Court of Justice of the European Union and Swedish courts. Considering the liability of AI users first, the paper emphasizes that while copyright exceptions are relevant in the discussion, national liability rules nuance a liability risk assessment above and beyond the potential applicability of a copyright exception. The analysis centers in particular on the reversed burden of proof introduced by the Swedish Supreme Court in NJA 1994 s 74 (Smultronmålet / Wild strawberries case) and the parameters of permissible transformative or derivative use (adaptations of all sorts), especially the level of similarity allowed between a pre-existing and transformative work, examining in particular NJA 2017 s 75 (Svenska syndabockar / Swedish scapegoats). Moreover, the paper engages in a discussion over the harmonization of transformative use and the exclusive right of adaptation through the right of reproduction in Article 2 InfoSoc Directive. Secondly, the paper examines copyright liability of AI system providers when their technology is used to generate infringing content. While secondary liability remains unharmonized in the EU, thus requiring consideration of national conceptions of such liability and available defences, expansive interpretations of primary liability by the Court of Justice in cases like C-160/15 GS Media, C-527/15 Filmspeler, or C-610/15 Ziggo require a consideration of the question whether AI providers indeed could also be held primarily liable for what users do. In this respect, the analysis considers both the right of communication to the public as well as the right of reproduction. The paper concludes with a forward-looking perspective, arguing in light of available litigation tactics that clarity must emerge through litigation rather than premature legislative reform. It will provide an opportunity for courts to systematize existing rules and liability theories and provide essential guidance for balancing copyright protection with innovation.

Links

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5117603

Artificial intelligence, Copyright, liability

RIS

TY  - JOUR
AU  - Szkalej, K.
PY  - 2025
DA  - 2025-01-10
T1  - Copyright Liability and Generative AI: What’s the Way Forward?
UR  - https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5117603
AB  - This paper examines the intricate relationship between copyright liability and generative AI, focusing on legal challenges at the output stage of AI content generation. As AI technology advances, questions regarding copyright infringement and attribution of liability have become increasingly pressing and complex, requiring a revision of existing rules and theories. The paper navigates the European copyright framework and offers insights from Swedish copyright law on unharmonized aspects of liability, reviewing key case law from the Court of Justice of the European Union and Swedish courts. Considering the liability of AI users first, the paper emphasizes that while copyright exceptions are relevant in the discussion, national liability rules nuance a liability risk assessment above and beyond the potential applicability of a copyright exception. The analysis centers in particular on the reversed burden of proof introduced by the Swedish Supreme Court in NJA 1994 s 74 (Smultronmålet / Wild strawberries case) and the parameters of permissible transformative or derivative use (adaptations of all sorts), especially the level of similarity allowed between a pre-existing and transformative work, examining in particular NJA 2017 s 75 (Svenska syndabockar / Swedish scapegoats). Moreover, the paper engages in a discussion over the harmonization of transformative use and the exclusive right of adaptation through the right of reproduction in Article 2 InfoSoc Directive. Secondly, the paper examines copyright liability of AI system providers when their technology is used to generate infringing content. While secondary liability remains unharmonized in the EU, thus requiring consideration of national conceptions of such liability and available defences, expansive interpretations of primary liability by the Court of Justice in cases like C-160/15 GS Media, C-527/15 Filmspeler, or C-610/15 Ziggo require a consideration of the question whether AI providers indeed could also be held primarily liable for what users do. In this respect, the analysis considers both the right of communication to the public as well as the right of reproduction. The paper concludes with a forward-looking perspective, arguing in light of available litigation tactics that clarity must emerge through litigation rather than premature legislative reform. It will provide an opportunity for courts to systematize existing rules and liability theories and provide essential guidance for balancing copyright protection with innovation.
K1  - Artificial intelligence
K1  - Copyright
K1  - liability
ER  -

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Bibtex

Article{nokey,
	title = {Copyright Liability and Generative AI: What’s the Way Forward?},
	author = {Szkalej, K.},
	year = {2025},
	date = {2025-01-10},
	abstract = {This paper examines the intricate relationship between copyright liability and generative AI, focusing on legal challenges at the output stage of AI content generation. As AI technology advances, questions regarding copyright infringement and attribution of liability have become increasingly pressing and complex, requiring a revision of existing rules and theories. The paper navigates the European copyright framework and offers insights from Swedish copyright law on unharmonized aspects of liability, reviewing key case law from the Court of Justice of the European Union and Swedish courts. Considering the liability of AI users first, the paper emphasizes that while copyright exceptions are relevant in the discussion, national liability rules nuance a liability risk assessment above and beyond the potential applicability of a copyright exception. The analysis centers in particular on the reversed burden of proof introduced by the Swedish Supreme Court in NJA 1994 s 74 (Smultronmålet / Wild strawberries case) and the parameters of permissible transformative or derivative use (adaptations of all sorts), especially the level of similarity allowed between a pre-existing and transformative work, examining in particular NJA 2017 s 75 (Svenska syndabockar / Swedish scapegoats). Moreover, the paper engages in a discussion over the harmonization of transformative use and the exclusive right of adaptation through the right of reproduction in Article 2 InfoSoc Directive. Secondly, the paper examines copyright liability of AI system providers when their technology is used to generate infringing content. While secondary liability remains unharmonized in the EU, thus requiring consideration of national conceptions of such liability and available defences, expansive interpretations of primary liability by the Court of Justice in cases like C-160/15 GS Media, C-527/15 Filmspeler, or C-610/15 Ziggo require a consideration of the question whether AI providers indeed could also be held primarily liable for what users do. In this respect, the analysis considers both the right of communication to the public as well as the right of reproduction. The paper concludes with a forward-looking perspective, arguing in light of available litigation tactics that clarity must emerge through litigation rather than premature legislative reform. It will provide an opportunity for courts to systematize existing rules and liability theories and provide essential guidance for balancing copyright protection with innovation.},
	keywords = {Artificial intelligence, Copyright, liability},
}

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Generative AI, Copyright and the AI Act external link

Quintais, J.

Computer Law & Security Review, vol. 56, num: 106107, 2025

Abstract

This paper provides a critical analysis of the Artificial Intelligence (AI) Act's implications for the European Union (EU) copyright acquis, aiming to clarify the complex relationship between AI regulation and copyright law while identifying areas of legal ambiguity and gaps that may influence future policymaking. The discussion begins with an overview of fundamental copyright concerns related to generative AI, focusing on issues that arise during the input, model, and output stages, and how these concerns intersect with the text and data mining (TDM) exceptions under the Copyright in the Digital Single Market Directive (CDSMD). The paper then explores the AI Act's structure and key definitions relevant to copyright law. The core analysis addresses the AI Act's impact on copyright, including the role of TDM in AI model training, the copyright obligations imposed by the Act, requirements for respecting copyright law—particularly TDM opt-outs—and the extraterritorial implications of these provisions. It also examines transparency obligations, compliance mechanisms, and the enforcement framework. The paper further critiques the current regime's inadequacies, particularly concerning the fair remuneration of creators, and evaluates potential improvements such as collective licensing and bargaining. It also assesses legislative reform proposals, such as statutory licensing and AI output levies, and concludes with reflections on future directions for integrating AI governance with copyright protection.

Links

AI Act, Content moderation, Copyright, Digital Services Act (DSA), Generative AI, Text and Data Mining (TDM), Transparency

RIS

TY  - JOUR
AU  - Quintais, J.
PY  - 2025
DA  - 2025-01-30
T1  - Generative AI, Copyright and the AI Act
JO  - Computer Law & Security Review
VL  - 56
NV  - 106107
UR  - https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4912701
DO  - https://doi.org/10.1016/j.clsr.2025.106107
AB  - This paper provides a critical analysis of the Artificial Intelligence (AI) Act\'s implications for the European Union (EU) copyright acquis, aiming to clarify the complex relationship between AI regulation and copyright law while identifying areas of legal ambiguity and gaps that may influence future policymaking. The discussion begins with an overview of fundamental copyright concerns related to generative AI, focusing on issues that arise during the input, model, and output stages, and how these concerns intersect with the text and data mining (TDM) exceptions under the Copyright in the Digital Single Market Directive (CDSMD).
The paper then explores the AI Act\'s structure and key definitions relevant to copyright law. The core analysis addresses the AI Act\'s impact on copyright, including the role of TDM in AI model training, the copyright obligations imposed by the Act, requirements for respecting copyright law—particularly TDM opt-outs—and the extraterritorial implications of these provisions. It also examines transparency obligations, compliance mechanisms, and the enforcement framework. The paper further critiques the current regime\'s inadequacies, particularly concerning the fair remuneration of creators, and evaluates potential improvements such as collective licensing and bargaining. It also assesses legislative reform proposals, such as statutory licensing and AI output levies, and concludes with reflections on future directions for integrating AI governance with copyright protection.
K1  - AI Act
K1  - Content moderation
K1  - Copyright
K1  - Digital Services Act (DSA)
K1  - Generative AI
K1  - Text and Data Mining (TDM)
K1  - Transparency
ER  -

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Bibtex

Article{nokey,
	title = {Generative AI, Copyright and the AI Act},
	author = {Quintais, J.},
	url = {https://www.sciencedirect.com/science/article/pii/S0267364925000020},
	doi = {https://doi.org/10.1016/j.clsr.2025.106107},
	year = {2025},
	date = {2025-01-30},
	journal = {Computer Law & Security Review},
	volume = {56},
	number = {106107},
	abstract = {This paper provides a critical analysis of the Artificial Intelligence (AI) Act\'s implications for the European Union (EU) copyright acquis, aiming to clarify the complex relationship between AI regulation and copyright law while identifying areas of legal ambiguity and gaps that may influence future policymaking. The discussion begins with an overview of fundamental copyright concerns related to generative AI, focusing on issues that arise during the input, model, and output stages, and how these concerns intersect with the text and data mining (TDM) exceptions under the Copyright in the Digital Single Market Directive (CDSMD).
The paper then explores the AI Act\'s structure and key definitions relevant to copyright law. The core analysis addresses the AI Act\'s impact on copyright, including the role of TDM in AI model training, the copyright obligations imposed by the Act, requirements for respecting copyright law—particularly TDM opt-outs—and the extraterritorial implications of these provisions. It also examines transparency obligations, compliance mechanisms, and the enforcement framework. The paper further critiques the current regime\'s inadequacies, particularly concerning the fair remuneration of creators, and evaluates potential improvements such as collective licensing and bargaining. It also assesses legislative reform proposals, such as statutory licensing and AI output levies, and concludes with reflections on future directions for integrating AI governance with copyright protection.},
	keywords = {AI Act, Content moderation, Copyright, Digital Services Act (DSA), Generative AI, Text and Data Mining (TDM), Transparency},
}

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Shifting Battlegrounds: Corporate Political Activity in the EU General Data Protection Regulation

Ocelík, V., Kolk, A. & Irion, K.

Business & Society, 2025

Abstract

Scholarship on corporate political activity (CPA) has remained largely silent on the substance of information strategies that firms utilize to influence policymakers. To address this deficiency, our study is situated in the European Union (EU), where political scientists have noted information strategies to be central to achieving lobbying success; the EU also provides a context of global norm-setting activities, especially with its General Data Protection Regulation (GDPR). Aided by recent advances in the field of unsupervised machine learning, we performed a structural topic model analysis of the entire set of lobby documents submitted during two GDPR consultations, which were obtained via a so-called Freedom of Information request. Our analysis of the substance of information strategies reveals that the two policy phases constitute “shifting battlegrounds,” where firms first seek to influence what is included and excluded in the legislation, after which they engage the more specific interests of other stakeholders. Our main theoretical contribution concerns the identification of two distinct information strategies. Furthermore, we point at the need for more attention for institutional procedures and for the role of other stakeholders’ lobbying activities in CPA research.

Links

DOI: https://doi.org/10.1177/00076503241306958

RIS

TY  - JOUR
AU  - Ocelík, V.
AU  - Kolk, A.
AU  - Irion, K.
PY  - 2025
DA  - 2025-01-20
T1  - Shifting Battlegrounds: Corporate Political Activity in the EU General Data Protection Regulation
JO  - Business & Society
DO  - https://doi.org/10.1177/00076503241306958
AB  - Scholarship on corporate political activity (CPA) has remained largely silent on the substance of information strategies that firms utilize to influence policymakers. To address this deficiency, our study is situated in the European Union (EU), where political scientists have noted information strategies to be central to achieving lobbying success; the EU also provides a context of global norm-setting activities, especially with its General Data Protection Regulation (GDPR). Aided by recent advances in the field of unsupervised machine learning, we performed a structural topic model analysis of the entire set of lobby documents submitted during two GDPR consultations, which were obtained via a so-called Freedom of Information request. Our analysis of the substance of information strategies reveals that the two policy phases constitute “shifting battlegrounds,” where firms first seek to influence what is included and excluded in the legislation, after which they engage the more specific interests of other stakeholders. Our main theoretical contribution concerns the identification of two distinct information strategies. Furthermore, we point at the need for more attention for institutional procedures and for the role of other stakeholders’ lobbying activities in CPA research.
ER  -

Save .RIS

Bibtex

Article{nokey,
	title = {Shifting Battlegrounds: Corporate Political Activity in the EU General Data Protection Regulation},
	author = {Ocelík, V. and Kolk, A. and Irion, K.},
	doi = {https://doi.org/10.1177/00076503241306958},
	year = {2025},
	date = {2025-01-20},
	journal = {Business & Society},
	abstract = {Scholarship on corporate political activity (CPA) has remained largely silent on the substance of information strategies that firms utilize to influence policymakers. To address this deficiency, our study is situated in the European Union (EU), where political scientists have noted information strategies to be central to achieving lobbying success; the EU also provides a context of global norm-setting activities, especially with its General Data Protection Regulation (GDPR). Aided by recent advances in the field of unsupervised machine learning, we performed a structural topic model analysis of the entire set of lobby documents submitted during two GDPR consultations, which were obtained via a so-called Freedom of Information request. Our analysis of the substance of information strategies reveals that the two policy phases constitute “shifting battlegrounds,” where firms first seek to influence what is included and excluded in the legislation, after which they engage the more specific interests of other stakeholders. Our main theoretical contribution concerns the identification of two distinct information strategies. Furthermore, we point at the need for more attention for institutional procedures and for the role of other stakeholders’ lobbying activities in CPA research.},
}

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Cultural Heritage Branding – Societal Costs and Benefits external link

Senftleben, M.

Research Handbook on the Law and Economics of Trademark Law, Edward Elgar Publishing, 2023, pp: 178-193, ISBN: 9781786430465

Abstract

The adoption of cultural heritage signs as trademarks entails several risks that must not be underestimated. Instead of enriching language and rhetoric devices, trademark protection restricts the freedom of future generations of authors to use affected cultural signs for new literary and artistic productions. Trademark protection means that one player in the communication process has strong incentives to invest in the development of her own messages and the suppression of the messages of others. Hence, the discourse surrounding affected cultural signs is no longer as open and free as it was before. Invoking broad protection against confusion and dilution, the trademark owner can take steps to censor artistic expressions that interfere with her branding strategy. The grant of trademark rights will also lead to a commercial redefinition and devaluation of affected cultural heritage material. Once a public domain sign is no longer exclusively linked with its cultural background in the mind of the audience, an artist cannot avoid the evocation of both cultural and commercial connotations. The addition of undesirable marketing messages tarnishes the cultural dimension of the affected sign. It will erode the sign’s artistic meaning and discourse potential over time and minimize the benefits – in the sense of impulses for societal renewal – which society could have derived from critical reflections on the cultural symbol and related societal conditions.

Links

RIS

TY  - CHAP
AU  - Senftleben, M.
PY  - 2023
DA  - 2023-02-05
T1  - Cultural Heritage Branding – Societal Costs and Benefits
SP  - 178-193
UR  - https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4399942
DO  - https://doi.org/10.4337/9781786430472
AB  - The adoption of cultural heritage signs as trademarks entails several risks that must not be underestimated. Instead of enriching language and rhetoric devices, trademark protection restricts the freedom of future generations of authors to use affected cultural signs for new literary and artistic productions. Trademark protection means that one player in the communication process has strong incentives to invest in the development of her own messages and the suppression of the messages of others. Hence, the discourse surrounding affected cultural signs is no longer as open and free as it was before. Invoking broad protection against confusion and dilution, the trademark owner can take steps to censor artistic expressions that interfere with her branding strategy. The grant of trademark rights will also lead to a commercial redefinition and devaluation of affected cultural heritage material. Once a public domain sign is no longer exclusively linked with its cultural background in the mind of the audience, an artist cannot avoid the evocation of both cultural and commercial connotations. The addition of undesirable marketing messages tarnishes the cultural dimension of the affected sign. It will erode the sign’s artistic meaning and discourse potential over time and minimize the benefits – in the sense of impulses for societal renewal – which society could have derived from critical reflections on the cultural symbol and related societal conditions.
ER  -

Save .RIS

Bibtex

Chapter{nokey,
	title = {Cultural Heritage Branding – Societal Costs and Benefits},
	author = {Senftleben, M.},
	doi = {https://doi.org/10.4337/9781786430472},
	year = {2023},
	date = {2023-02-05},
	pages = {178-193},
	abstract = {The adoption of cultural heritage signs as trademarks entails several risks that must not be underestimated. Instead of enriching language and rhetoric devices, trademark protection restricts the freedom of future generations of authors to use affected cultural signs for new literary and artistic productions. Trademark protection means that one player in the communication process has strong incentives to invest in the development of her own messages and the suppression of the messages of others. Hence, the discourse surrounding affected cultural signs is no longer as open and free as it was before. Invoking broad protection against confusion and dilution, the trademark owner can take steps to censor artistic expressions that interfere with her branding strategy. The grant of trademark rights will also lead to a commercial redefinition and devaluation of affected cultural heritage material. Once a public domain sign is no longer exclusively linked with its cultural background in the mind of the audience, an artist cannot avoid the evocation of both cultural and commercial connotations. The addition of undesirable marketing messages tarnishes the cultural dimension of the affected sign. It will erode the sign’s artistic meaning and discourse potential over time and minimize the benefits – in the sense of impulses for societal renewal – which society could have derived from critical reflections on the cultural symbol and related societal conditions.},
}

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DPG Media et al vs. HowardsHome – A national ruling on DSM’s press publishers’ rights and TDM exceptions external link

Valk, E.G. & Toepoel, I.

Kluwer Copyright Blog, 2025

Links

https://copyrightblog.kluweriplaw.com/2025/01/16/dpg-media-et-al-vs-howardshome-a-national-ruling-on-dsms-press-publishers-rights-and-tdm-exceptions/

Copyright

RIS

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Probing the production of quantum technologies to imagine its legal framework

Mittal, A.

Research Directions: Quantum Technologies, vol. 3, 2025

Abstract

Quantum technologies (QT) are being awaited with excitement. They are supported by many governments, the corporate sector, international bodies and technology forecasters. There is discursive investment as well in terms of creating expectations and laying down a vision for the ‘Second Quantum Revolution’. Science and technology studies are also playing their part to think of the quantum future along with philosophical discussions around it. These visions and expectations perform an implicit and latent function of steering policy proposals and governance. At the current stage of development of quantum technologies, a comprehensive and cogent legal framework is hard to envisage. As it is difficult to foresee the final shape of these technologies, a way to proceed can be to focus on the legal enquiry related to economic, political and policy factors which contribute to its material emergence. This can broaden the focus from thinking about its impact to contextualizing its production and development. Further, it allows a way of determining the extent to which social science and ethical frames can apply to the governance of QT, given the legal and practical realities of technology production and use. This article maps the myriad governance frameworks being envisaged to think about the future of QT. It zooms onto the discussion related to the access divide being framed for QT to understand the points of legal intervention. It uses the case of quantum computing to understand the way legal and practical policy solutions have been ideated. It highlights the way these solutions entrench power of digital infrastructure providers further. This seeks to motivate further work to expand the scope of a legal framework for QT.

Links

DOI: https://doi.org/10.1017/qut.2024.6

quantum technologies

RIS

TY  - JOUR
AU  - Mittal, A.
PY  - 2025
DA  - 2025-01-08
T1  - Probing the production of quantum technologies to imagine its legal framework
JO  - Research Directions: Quantum Technologies
VL  - 3
DO  - https://doi.org/10.1017/qut.2024.6
AB  - Quantum technologies (QT) are being awaited with excitement. They are supported by many governments, the corporate sector, international bodies and technology forecasters. There is discursive investment as well in terms of creating expectations and laying down a vision for the ‘Second Quantum Revolution’. Science and technology studies are also playing their part to think of the quantum future along with philosophical discussions around it. These visions and expectations perform an implicit and latent function of steering policy proposals and governance. At the current stage of development of quantum technologies, a comprehensive and cogent legal framework is hard to envisage. As it is difficult to foresee the final shape of these technologies, a way to proceed can be to focus on the legal enquiry related to economic, political and policy factors which contribute to its material emergence. This can broaden the focus from thinking about its impact to contextualizing its production and development. Further, it allows a way of determining the extent to which social science and ethical frames can apply to the governance of QT, given the legal and practical realities of technology production and use. This article maps the myriad governance frameworks being envisaged to think about the future of QT. It zooms onto the discussion related to the access divide being framed for QT to understand the points of legal intervention. It uses the case of quantum computing to understand the way legal and practical policy solutions have been ideated. It highlights the way these solutions entrench power of digital infrastructure providers further. This seeks to motivate further work to expand the scope of a legal framework for QT.
K1  - quantum technologies
ER  -

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Bibtex

Article{nokey,
	title = {Probing the production of quantum technologies to imagine its legal framework},
	author = {Mittal, A.},
	doi = {https://doi.org/10.1017/qut.2024.6},
	year = {2025},
	date = {2025-01-08},
	journal = {Research Directions: Quantum Technologies},
	volume = {3},
	abstract = {Quantum technologies (QT) are being awaited with excitement. They are supported by many governments, the corporate sector, international bodies and technology forecasters. There is discursive investment as well in terms of creating expectations and laying down a vision for the ‘Second Quantum Revolution’. Science and technology studies are also playing their part to think of the quantum future along with philosophical discussions around it. These visions and expectations perform an implicit and latent function of steering policy proposals and governance. At the current stage of development of quantum technologies, a comprehensive and cogent legal framework is hard to envisage. As it is difficult to foresee the final shape of these technologies, a way to proceed can be to focus on the legal enquiry related to economic, political and policy factors which contribute to its material emergence. This can broaden the focus from thinking about its impact to contextualizing its production and development. Further, it allows a way of determining the extent to which social science and ethical frames can apply to the governance of QT, given the legal and practical realities of technology production and use. This article maps the myriad governance frameworks being envisaged to think about the future of QT. It zooms onto the discussion related to the access divide being framed for QT to understand the points of legal intervention. It uses the case of quantum computing to understand the way legal and practical policy solutions have been ideated. It highlights the way these solutions entrench power of digital infrastructure providers further. This seeks to motivate further work to expand the scope of a legal framework for QT.},
	keywords = {quantum technologies},
}

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EU copyright law roundup – fourth trimester of 2024 external link

Trapova, A. & Quintais, J.

Kluwer Copyright Blog, 2025

Links

https://copyrightblog.kluweriplaw.com/2025/01/06/eu-copyright-law-roundup-fourth-trimester-of-2024/

Copyright

RIS

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The Cost of Reach: Testing the Role of Ad Delivery Algorithms in Online Political Campaigns external link

Votta, F., Dobber, T., Guinaudeau, B., Helberger, N. & Vreese, C.H. de

Political Communication, vol. 42, iss. : 3, pp: 476-508, 2024

Abstract

Political campaigns increasingly rely on digital ads to engage potential voters, with platforms like Meta offering advertisers detailed targeting options based on user demographics, behaviors, and interests. A lesser-known feature of social media advertising is the ad delivery algorithm, which sets ad prices through auctions and may deliver ads to “relevant” audiences without explicit direction from advertisers. This automated process raises the question of whether it may introduce systemic biases into digital political advertising. To examine the pricing of political ads, we conducted a pre-registered study in collaboration with three Dutch political parties. We placed 135 identical ads on the parties’ official Facebook and Instagram accounts, targeting nine different audiences during the 2022 municipal elections. All ads ran simultaneously with identical settings, daily budgets, texts, and images, ensuring any differences in pricing and delivery were due to the advertiser and target audiences. We anticipated that parties would pay less when ads targeted “relevant” audiences. However, we observed pricing differences between parties and audiences that did not always align with our expectations. For instance, one party paid 9.24% to 10.74% less per 1,000 users. Additionally, lower-educated citizens, women, and younger individuals (18–24) were more expensive to reach. These results have important implications. The unequal costs create unfair and unequal playing field, while the exclusion of certain groups from ad delivery may limit their access to election information. Our findings suggest that simply restricting targeting capabilities, without addressing the role of ad delivery algorithms, would leave pricing disparities unchecked and without transparency

Links

RIS

TY  - JOUR
AU  - Votta, F.
AU  - Dobber, T.
AU  - Guinaudeau, B.
AU  - Helberger, N.
AU  - Vreese, C.H. de
PY  - 2024
DA  - 2024-12-23
T1  - The Cost of Reach: Testing the Role of Ad Delivery Algorithms in Online Political Campaigns
JO  - Political Communication
VL  - 42
IS  - 3
SP  - 476-508
UR  - https://www.tandfonline.com/doi/full/10.1080/10584609.2024.2439317
DO  - https://doi.org/10.1080/10584609.2024.2439317
AB  - Political campaigns increasingly rely on digital ads to engage potential voters, with platforms like Meta offering advertisers detailed targeting options based on user demographics, behaviors, and interests. A lesser-known feature of social media advertising is the ad delivery algorithm, which sets ad prices through auctions and may deliver ads to “relevant” audiences without explicit direction from advertisers. This automated process raises the question of whether it may introduce systemic biases into digital political advertising. To examine the pricing of political ads, we conducted a pre-registered study in collaboration with three Dutch political parties. We placed 135 identical ads on the parties’ official Facebook and Instagram accounts, targeting nine different audiences during the 2022 municipal elections. All ads ran simultaneously with identical settings, daily budgets, texts, and images, ensuring any differences in pricing and delivery were due to the advertiser and target audiences. We anticipated that parties would pay less when ads targeted “relevant” audiences. However, we observed pricing differences between parties and audiences that did not always align with our expectations. For instance, one party paid 9.24% to 10.74% less per 1,000 users. Additionally, lower-educated citizens, women, and younger individuals (18–24) were more expensive to reach. These results have important implications. The unequal costs create unfair and unequal playing field, while the exclusion of certain groups from ad delivery may limit their access to election information. Our findings suggest that simply restricting targeting capabilities, without addressing the role of ad delivery algorithms, would leave pricing disparities unchecked and without transparency
ER  -

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Bibtex

Article{nokey,
	title = {The Cost of Reach: Testing the Role of Ad Delivery Algorithms in Online Political Campaigns},
	author = {Votta, F. and Dobber, T. and Guinaudeau, B. and Helberger, N. and Vreese, C.H. de},
	doi = {https://doi.org/10.1080/10584609.2024.2439317},
	year = {2024},
	date = {2024-12-23},
	journal = {Political Communication},
	volume = {42},
	issue = {3},
	pages = {476-508},
	abstract = {Political campaigns increasingly rely on digital ads to engage potential voters, with platforms like Meta offering advertisers detailed targeting options based on user demographics, behaviors, and interests. A lesser-known feature of social media advertising is the ad delivery algorithm, which sets ad prices through auctions and may deliver ads to “relevant” audiences without explicit direction from advertisers. This automated process raises the question of whether it may introduce systemic biases into digital political advertising. To examine the pricing of political ads, we conducted a pre-registered study in collaboration with three Dutch political parties. We placed 135 identical ads on the parties’ official Facebook and Instagram accounts, targeting nine different audiences during the 2022 municipal elections. All ads ran simultaneously with identical settings, daily budgets, texts, and images, ensuring any differences in pricing and delivery were due to the advertiser and target audiences. We anticipated that parties would pay less when ads targeted “relevant” audiences. However, we observed pricing differences between parties and audiences that did not always align with our expectations. For instance, one party paid 9.24% to 10.74% less per 1,000 users. Additionally, lower-educated citizens, women, and younger individuals (18–24) were more expensive to reach. These results have important implications. The unequal costs create unfair and unequal playing field, while the exclusion of certain groups from ad delivery may limit their access to election information. Our findings suggest that simply restricting targeting capabilities, without addressing the role of ad delivery algorithms, would leave pricing disparities unchecked and without transparency},
}

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“Must-carry”, Special Treatment and Freedom of Expression on Online Platforms: A European Story

Kuczerawy, A. & Quintais, J.

2024

Abstract

This paper examines the role of "must-carry" obligations in the regulation of online platforms, arguing that these obligations are better understood as special treatment rules rather than direct analogues of traditional broadcasting regulation. By analysing the development of such rules within the European Union, particularly through the Digital Services Act (DSA) and the European Media Freedom Act (EMFA), the paper explores how these provisions aim to safeguard freedom of expression, ensure access to trustworthy information, enhance media pluralism, and regulate platform behaviour. The analysis extends to national-level laws and court decisions in Germany, The Netherlands, the United Kingdom, and Poland, illustrating how these countries have grappled with similar challenges in applying and contextualizing special treatment rules. Through a detailed examination of these frameworks, the paper critiques the risks of these rules, including their potential to entrench power imbalances, amplify state narratives, and complicate efforts to counter disinformation. Additionally, the paper highlights the broader implications of granting privileged status to legacy media and political actors, questioning whether such measures align with democratic principles and the rule of law. Ultimately, the paper argues that while these rules may offer a response to platform dominance, their implementation risks undermining the equality of speech and shifting the focus of freedom of expression toward a privilege for select groups. The paper is currently under peer review so please contact the authors for a copy of the preprint. We'll upload it again once the review is complete.

Content moderation, Digital Services Act (DSA), EU law, European Media Freedom Act, must carry, platform regulation

RIS

TY  - BLOG
AU  - Kuczerawy, A.
AU  - Quintais, J.
PY  - 2024
DA  - 2024-12-19
T1  - “Must-carry”, Special Treatment and Freedom of Expression on Online Platforms: A European Story
AB  - This paper examines the role of \"must-carry\" obligations in the regulation of online platforms, arguing that these obligations are better understood as special treatment rules rather than direct analogues of traditional broadcasting regulation. By analysing the development of such rules within the European Union, particularly through the Digital Services Act (DSA) and the European Media Freedom Act (EMFA), the paper explores how these provisions aim to safeguard freedom of expression, ensure access to trustworthy information, enhance media pluralism, and regulate platform behaviour. The analysis extends to national-level laws and court decisions in Germany, The Netherlands, the United Kingdom, and Poland, illustrating how these countries have grappled with similar challenges in applying and contextualizing special treatment rules. Through a detailed examination of these frameworks, the paper critiques the risks of these rules, including their potential to entrench power imbalances, amplify state narratives, and complicate efforts to counter disinformation. Additionally, the paper highlights the broader implications of granting privileged status to legacy media and political actors, questioning whether such measures align with democratic principles and the rule of law. Ultimately, the paper argues that while these rules may offer a response to platform dominance, their implementation risks undermining the equality of speech and shifting the focus of freedom of expression toward a privilege for select groups.

The paper is currently under peer review so please contact the authors for a copy of the preprint. We\'ll upload it again once the review is complete.
K1  - Content moderation
K1  - Digital Services Act (DSA)
K1  - EU law
K1  - European Media Freedom Act
K1  - must carry
K1  - platform regulation
ER  -

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Bibtex

Online publication{nokey,
	title = {“Must-carry”, Special Treatment and Freedom of Expression on Online Platforms: A European Story},
	author = {Kuczerawy, A. and Quintais, J.},
	year = {2024},
	date = {2024-12-19},
	abstract = {This paper examines the role of \"must-carry\" obligations in the regulation of online platforms, arguing that these obligations are better understood as special treatment rules rather than direct analogues of traditional broadcasting regulation. By analysing the development of such rules within the European Union, particularly through the Digital Services Act (DSA) and the European Media Freedom Act (EMFA), the paper explores how these provisions aim to safeguard freedom of expression, ensure access to trustworthy information, enhance media pluralism, and regulate platform behaviour. The analysis extends to national-level laws and court decisions in Germany, The Netherlands, the United Kingdom, and Poland, illustrating how these countries have grappled with similar challenges in applying and contextualizing special treatment rules. Through a detailed examination of these frameworks, the paper critiques the risks of these rules, including their potential to entrench power imbalances, amplify state narratives, and complicate efforts to counter disinformation. Additionally, the paper highlights the broader implications of granting privileged status to legacy media and political actors, questioning whether such measures align with democratic principles and the rule of law. Ultimately, the paper argues that while these rules may offer a response to platform dominance, their implementation risks undermining the equality of speech and shifting the focus of freedom of expression toward a privilege for select groups.

The paper is currently under peer review so please contact the authors for a copy of the preprint. We\'ll upload it again once the review is complete.},
	keywords = {Content moderation, Digital Services Act (DSA), EU law, European Media Freedom Act, must carry, platform regulation},
}

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Annotatie bij Hof van Justitie van de EU 7 december 2023 (OQ \ Land Hessen) download

Dommering, E.

Nederlandse Jurisprudentie, iss. : 36, num: 334, pp: 7098, 2024

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Annotatie_NJ_2024_334

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