From enabling to levelling: the need to change the policy rationale of the intermediary liability regime

Abstract

On the spectrum of policy formulation, the current intermediary liability regime is strongly rooted in the extreme end of policy formulation. The main focus of this policy choice is to provide an ‘enabling’ governance structure. Other options, such as providing a level playing field or exploring how and to what extent the intermediary liability regime will need to even constrain undesired digital behaviour, have hardly been given consideration. The immunities granted under the intermediary liability regime have hence successfully enabled novel business models and assured freedom of expression on the internet, leaving, however, significantly declining investment rates in music an unaddressed policy issue. According to estimates of this study, the cumulative investments lost in the UK, Germany and France alone amounted to up to nearly 4 billion Euro between 2008 and 2014. For the European Union, this situation posits a challenge with important ramifications in the long run. If Europe continues to lose out on investments in creative content, it risks losing its international competitiveness. It is thus proposed to revisit the underlying policy rationale of the intermediary liability regime and explore what steps are needed to provide a more equal level playing field for all types of market participants, be they the traditional music industry or novel forms of online intermediaries.