Copyright as a rule of law challenge
Copyright is becoming more and more a threat to the rule of law in the European Union. The fundamental rights of freedom of expression and to information are at the heart of any democracy. EU law nevertheless allows copyright to suppress them, which jeopardizes the rule of law. In the digital age, the danger of copyright operating as a right of censorship is increased even more. On platforms copyright can have a censorship effect in the true meaning of the word - because it can already block the very act of publication. For the purpose of copyright protection, EU legislation orders the use of algorithms to filter communication on platforms before it is published. Striking a fair balance between the freedom of communication and copyright, both enshrined in CFR and ECHR, is thus entrusted to algorithmic filtering systems. Yet fundamental rights cannot be filtered: A fundamental rights proportionality test is not translatable into variables to put into an algorithm. Should secondary legislation entrust the safeguarding of one of the cornerstones of a rule-of-law state to algorithmic filtering systems? Is the current EU regulation framework able to strike a fair balance between copyright and conflicting fundamental rights?