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<p>In an era of content abundance and attention scarcity, curation is key. Online content disseminators provide the public with access to content, while harnessing the value of audience attention and data. Content curation by disseminators, whether conscious or automated, could lead to infringement of the right to communicate to the public. This is exhibited in judicial interpretations and emerging legislative frameworks in the European Union, United States and Australia, even if the link between curation and liability is not always made clear. In other words, courts assessing primary infringement of the communication right are already taking curation into account, regardless of whether it is an explicit part of the analytical framework. In the interest of transparent decision-making, this article advocates for clearer recognition of disseminators’ curatorial roles and interests in interpretations of the communication right, a central right in access-based dissemination markets. The article proposes questions and factors for evaluating infringement by curation, with more careful consideration of factors such as substitutability with existing services.</p>

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Content Curation and Disseminators’ Primary Copyright Liability in Access-Based Attention Markets

  • 期刊论文

  • 发表日期：

    2026年1月15日

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  • Cheryl Foong

摘要

In an era of content abundance and attention scarcity, curation is key. Online content disseminators provide the public with access to content, while harnessing the value of audience attention and data. Content curation by disseminators, whether conscious or automated, could lead to infringement of the right to communicate to the public. This is exhibited in judicial interpretations and emerging legislative frameworks in the European Union, United States and Australia, even if the link between curation and liability is not always made clear. In other words, courts assessing primary infringement of the communication right are already taking curation into account, regardless of whether it is an explicit part of the analytical framework. In the interest of transparent decision-making, this article advocates for clearer recognition of disseminators’ curatorial roles and interests in interpretations of the communication right, a central right in access-based dissemination markets. The article proposes questions and factors for evaluating infringement by curation, with more careful consideration of factors such as substitutability with existing services.