Global Content Protection Through Automation – A Transnational Law Perspective

Abstract

When Phillip Jessup coined the term ‘transnational law’ in the 1950ies, he tried to capture ‘all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.’ Within the third category, those ‘other rules’ somewhere in between existing schemas, Jessup specifically included rules emanating from agreements among the parties involved – be it ‘individuals, corporations, states, organizations of states, or other groups’. While he certainly had forms of what we nowadays call ‘private orders’ (like lex mercatoria) in mind, he could not have thought of globally operating online platforms which set their own rules (or ‘community guidelines’), implement them through their codes and user interfaces, and enforce them through algorithms. Nevertheless, I suggest that it is the notion of transnational law which offers a useful lens to look at developments in the protection of intangible assets which are based on norms set by private actors, often have global reach and a form of direct effect not paralleled by any state enforcement machinery. It enables us to identify as law what we otherwise might discard, and in turn puts a spotlight on the effect and (cross-border) implications of (quasi-)legal orders outside traditional paradigms.