Statement Prof. Dr. Natali Helberger bij Rondetafelgesprek over de Corona-app in de Tweede Kamer op 22 April 2020 external link

frontpage, Informatierecht, mobile health apps

Bibtex

Article{Helberger2020c, title = {Statement Prof. Dr. Natali Helberger bij Rondetafelgesprek over de Corona-app in de Tweede Kamer op 22 April 2020}, author = {Helberger, N.}, url = {https://www.ivir.nl/publicaties/download/Statement_Covid_App_Expertsronde_TK.pdf https://www.tweedekamer.nl/debat_en_vergadering/commissievergaderingen/details?id=2020A01700}, year = {0422}, date = {2020-04-22}, keywords = {frontpage, Informatierecht, mobile health apps}, }

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for Action at International Level external link

Flynn, S., Geiger, C. & Quintais, J.
Kluwer Copyright Blog, 2020

Abstract

A version of this post was also published on the InfoJustice website: http://infojustice.org/archives/42260

Artificial intelligence, Auteursrecht, frontpage

Bibtex

Article{Flynn2020c, title = {Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for Action at International Level}, author = {Flynn, S. and Geiger, C. and Quintais, J.}, url = {http://copyrightblog.kluweriplaw.com/2020/04/21/implementing-user-rights-for-research-in-the-field-of-artificial-intelligence-a-call-for-action-at-international-level/ http://infojustice.org/archives/42260}, year = {0421}, date = {2020-04-21}, journal = {Kluwer Copyright Blog}, abstract = {A version of this post was also published on the InfoJustice website: http://infojustice.org/archives/42260}, keywords = {Artificial intelligence, Auteursrecht, frontpage}, }

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action external link

Flynn, S., Geiger, C., Quintais, J., Margoni, T., Sag, M., Guibault, L. & Carroll, M.
European Intellectual Property Review, vol. 2020, num: 7, 2020

Abstract

Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, including by providing guidance on the diverse mechanisms that countries may use to authorize TDM research and serving as a forum for the adoption of rules permitting cross-border TDM projects.

Artificial intelligence, Auteursrecht, frontpage, machine learning, tdm, text and data mining

Bibtex

Article{Flynn2020b, title = {Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action}, author = {Flynn, S. and Geiger, C. and Quintais, J. and Margoni, T. and Sag, M. and Guibault, L. and Carroll, M.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3578819}, year = {0421}, date = {2020-04-21}, journal = {European Intellectual Property Review}, volume = {2020}, number = {7}, pages = {}, abstract = {Last year, before the onset of a global pandemic highlighted the critical and urgent need for technology-enabled scientific research, the World Intellectual Property Organization (WIPO) launched an inquiry into issues at the intersection of intellectual property (IP) and artificial intelligence (AI). We contributed comments to that inquiry, with a focus on the application of copyright to the use of text and data mining (TDM) technology. This article describes some of the most salient points of our submission and concludes by stressing the need for international leadership on this important topic. WIPO could help fill the current gap on international leadership, including by providing guidance on the diverse mechanisms that countries may use to authorize TDM research and serving as a forum for the adoption of rules permitting cross-border TDM projects.}, keywords = {Artificial intelligence, Auteursrecht, frontpage, machine learning, tdm, text and data mining}, }

From Flexible Balancing Tool to Quasi-Constitutional Straitjacket – How the EU Cultivates the Constraining Function of the Three-Step Test external link

Abstract

In the international intellectual property (IP) arena, the so-called “three-step test” regulates the room for the adoption of limitations and exceptions (L&Es) to exclusive rights across different fields of IP. Given the openness of the individual test criteria, it is tempting for proponents of strong IP protection to strive for the fixation of the meaning of the three-step test at the constraining end of the spectrum of possible interpretations. As the three-step test lies at the core of legislative initiatives to balance exclusive rights and user freedoms, the cultivation of the test’s constraining function and the suppression of the test’s enabling function has the potential to transform the three-step test into a bulwark against limitations of IP protection. The EU is at the forefront of a constraining use and interpretation of the three-step test in the field of copyright law. The configuration of the legal framework in the EU is worrisome because it obliges judges to apply the three-step test as an additional control instrument. It is not sufficient that an individual use falls within the scope of a statutory copyright limitation that explicitly permits this type of use without prior authorization. In addition, judges applying the three-step test also examine whether the specific form of use at issue complies with each individual criterion of the three-step test. Hence, the test serves as an instrument to further restrict L&Es that have already been defined precisely in statutory law. Not surprisingly, decisions from courts in the EU have a tendency of shedding light on the constraining aspect of the three-step test and, therefore, reinforcing the hegemony of copyright holders in the IP arena. The hypothesis underlying the following examination, therefore, is that the EU approach to the three-step test is one-sided in the sense that it only demonstrates the potential of the test to set additional limits to L&Es. The analysis focuses on this transformation of a flexible international balancing tool into a powerful confirmation and fortification of IP protection. For this purpose, the two facets of the international three-step test – its enabling and constraining function – are explored before embarking on a discussion of case law that evolved under the one-sided EU approach. Analyzing repercussions on international lawmaking, it will become apparent that the EU approach already impacted the further development of international L&Es. Certain features of the Marrakesh Treaty clearly reflect the restrictive EU approach.

access to knowledge, Berne Convention, Copyright, EU law, frontpage, Human rights, limitations and exceptions, Marrakesh Treaty, rights of disabled persons, transformative use, TRIPS Agreement

Bibtex

Chapter{Senftleben2020b, title = {From Flexible Balancing Tool to Quasi-Constitutional Straitjacket – How the EU Cultivates the Constraining Function of the Three-Step Test}, author = {Senftleben, M.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576019}, year = {0416}, date = {2020-04-16}, abstract = {In the international intellectual property (IP) arena, the so-called “three-step test” regulates the room for the adoption of limitations and exceptions (L&Es) to exclusive rights across different fields of IP. Given the openness of the individual test criteria, it is tempting for proponents of strong IP protection to strive for the fixation of the meaning of the three-step test at the constraining end of the spectrum of possible interpretations. As the three-step test lies at the core of legislative initiatives to balance exclusive rights and user freedoms, the cultivation of the test’s constraining function and the suppression of the test’s enabling function has the potential to transform the three-step test into a bulwark against limitations of IP protection. The EU is at the forefront of a constraining use and interpretation of the three-step test in the field of copyright law. The configuration of the legal framework in the EU is worrisome because it obliges judges to apply the three-step test as an additional control instrument. It is not sufficient that an individual use falls within the scope of a statutory copyright limitation that explicitly permits this type of use without prior authorization. In addition, judges applying the three-step test also examine whether the specific form of use at issue complies with each individual criterion of the three-step test. Hence, the test serves as an instrument to further restrict L&Es that have already been defined precisely in statutory law. Not surprisingly, decisions from courts in the EU have a tendency of shedding light on the constraining aspect of the three-step test and, therefore, reinforcing the hegemony of copyright holders in the IP arena. The hypothesis underlying the following examination, therefore, is that the EU approach to the three-step test is one-sided in the sense that it only demonstrates the potential of the test to set additional limits to L&Es. The analysis focuses on this transformation of a flexible international balancing tool into a powerful confirmation and fortification of IP protection. For this purpose, the two facets of the international three-step test – its enabling and constraining function – are explored before embarking on a discussion of case law that evolved under the one-sided EU approach. Analyzing repercussions on international lawmaking, it will become apparent that the EU approach already impacted the further development of international L&Es. Certain features of the Marrakesh Treaty clearly reflect the restrictive EU approach.}, keywords = {access to knowledge, Berne Convention, Copyright, EU law, frontpage, Human rights, limitations and exceptions, Marrakesh Treaty, rights of disabled persons, transformative use, TRIPS Agreement}, }

Institutionalized Algorithmic Enforcement – The Pros and Cons of the EU Approach to UGC Platform Liability external link

Florida International University Law Review, vol. 14, num: 2, pp: 299-328, 2020

Abstract

Algorithmic copyright enforcement – the use of automated filtering tools to detect infringing content before it appears on the internet – has a deep impact on the freedom of users to upload and share information. Instead of presuming that user-generated content ("UGC") does not amount to infringement unless copyright owners take action and provide proof, the default position of automated filtering systems is that every upload is suspicious and that copyright owners are entitled to ex ante control over the sharing of information online. If platform providers voluntarily introduce algorithmic enforcement measures, this may be seen as a private decision following from the freedom of companies to run their business as they wish. If, however, copyright legislation institutionalizes algorithmic enforcement and imposes a legal obligation on platform providers to employ automated filtering tools, the law itself transforms copyright into a censorship and filtering instrument. Nonetheless, the new EU Directive on Copyright in the Digital Single Market (“DSM Directive”) follows this path and requires the employment of automated filtering tools to ensure that unauthorized protected content does not populate UGC platforms. The new EU rules on UGC licensing and screening will inevitably lead to the adoption of algorithmic enforcement measures in practice. Without automated content control, UGC platforms will be unable to escape liability for infringing user uploads. To provide a complete picture, however, it is important to also shed light on counterbalances which may distinguish this new, institutionalized form of algorithmic enforcement from known content filtering tools that have evolved as voluntary measures in the private sector. The DSM Directive underlines the necessity to safeguard user freedoms that support transformative, creative remixes and mash-ups of pre-existing content. This feature of the new legislation may offer important incentives to develop algorithmic tools that go beyond the mere identification of unauthorized takings from protected works. It has the potential to encourage content assessment mechanisms that factor the degree of transformative effort and user creativity into the equation. As a result, more balanced content filtering tools may emerge in the EU. Against this background, the analysis shows that the new EU legislation not only escalates the use of algorithmic enforcement measures that already commenced in the private sector years ago. If rightly implemented, it may also add an important nuance to existing content identification tools and alleviate the problems arising from reliance on automated filtering mechanisms.

aansprakelijkheid, Auteursrecht, censuur, EU, frontpage, Platforms, user-generated content, Vrijheid van meningsuiting

Bibtex

Article{Senftleben2020, title = {Institutionalized Algorithmic Enforcement – The Pros and Cons of the EU Approach to UGC Platform Liability}, author = {Senftleben, M.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3565175 https://ecollections.law.fiu.edu/lawreview/vol14/iss2/11/}, doi = {https://doi.org/10.25148/lawrev.14.2.11}, year = {1020}, date = {2020-10-20}, journal = {Florida International University Law Review}, volume = {14}, number = {2}, pages = {299-328}, abstract = {Algorithmic copyright enforcement – the use of automated filtering tools to detect infringing content before it appears on the internet – has a deep impact on the freedom of users to upload and share information. Instead of presuming that user-generated content ("UGC") does not amount to infringement unless copyright owners take action and provide proof, the default position of automated filtering systems is that every upload is suspicious and that copyright owners are entitled to ex ante control over the sharing of information online. If platform providers voluntarily introduce algorithmic enforcement measures, this may be seen as a private decision following from the freedom of companies to run their business as they wish. If, however, copyright legislation institutionalizes algorithmic enforcement and imposes a legal obligation on platform providers to employ automated filtering tools, the law itself transforms copyright into a censorship and filtering instrument. Nonetheless, the new EU Directive on Copyright in the Digital Single Market (“DSM Directive”) follows this path and requires the employment of automated filtering tools to ensure that unauthorized protected content does not populate UGC platforms. The new EU rules on UGC licensing and screening will inevitably lead to the adoption of algorithmic enforcement measures in practice. Without automated content control, UGC platforms will be unable to escape liability for infringing user uploads. To provide a complete picture, however, it is important to also shed light on counterbalances which may distinguish this new, institutionalized form of algorithmic enforcement from known content filtering tools that have evolved as voluntary measures in the private sector. The DSM Directive underlines the necessity to safeguard user freedoms that support transformative, creative remixes and mash-ups of pre-existing content. This feature of the new legislation may offer important incentives to develop algorithmic tools that go beyond the mere identification of unauthorized takings from protected works. It has the potential to encourage content assessment mechanisms that factor the degree of transformative effort and user creativity into the equation. As a result, more balanced content filtering tools may emerge in the EU. Against this background, the analysis shows that the new EU legislation not only escalates the use of algorithmic enforcement measures that already commenced in the private sector years ago. If rightly implemented, it may also add an important nuance to existing content identification tools and alleviate the problems arising from reliance on automated filtering mechanisms.}, keywords = {aansprakelijkheid, Auteursrecht, censuur, EU, frontpage, Platforms, user-generated content, Vrijheid van meningsuiting}, }

Annotatie bij HvJ EU 1 oktober 2019 (Planet 49) external link

Nederlandse Jurisprudentie, num: 13/14, pp: 1671-1673, 2020

Annotaties, cookies, frontpage, Persoonsgegevens

Bibtex

Article{Dommering2020f, title = {Annotatie bij HvJ EU 1 oktober 2019 (Planet 49)}, author = {Dommering, E.}, url = {https://www.ivir.nl/publicaties/download/Annotatie_NJ_2020_98.pdf}, year = {0407}, date = {2020-04-07}, journal = {Nederlandse Jurisprudentie}, number = {13/14}, keywords = {Annotaties, cookies, frontpage, Persoonsgegevens}, }

Annotatie bij HvJ EU 29 juli 2019 (Fashion ID) external link

Nederlandse Jurisprudentie, num: 13/14, pp: 1659-1661, 2020

Annotaties, frontpage, Persoonsgegevens

Bibtex

Article{Dommering2020e, title = {Annotatie bij HvJ EU 29 juli 2019 (Fashion ID)}, author = {Dommering, E.}, url = {https://www.ivir.nl/publicaties/download/Annotatie_NJ_2020_97.pdf}, year = {0407}, date = {2020-04-07}, journal = {Nederlandse Jurisprudentie}, number = {13/14}, keywords = {Annotaties, frontpage, Persoonsgegevens}, }

Diversity, Fairness, and Data-Driven Personalization in (News) Recommender System external link

Bernstein, A., Vreese, C.H. de, Helberger, N., Schulz, W. & Zweig, K.A.
Dagstuhl Reports, vol. 9, num: 11, pp: 117-124, 2020

Abstract

As people increasingly rely on online media and recommender systems to consume information, engage in debates and form their political opinions, the design goals of online media and news recommenders have wide implications for the political and social processes that take place online and offline. Current recommender systems have been observed to promote personalization and more effective forms of informing, but also to narrow the user’s exposure to diverse content. Concerns about echo-chambers and filter bubbles highlight the importance of design metrics that can successfully strike a balance between accurate recommendations that respond to individual information needs and preferences, while at the same time addressing concerns about missing out important information, context and the broader cultural and political diversity in the news, as well as fairness. A broader, more sophisticated vision of the future of personalized recommenders needs to be formed–a vision that can only be developed as the result of a collaborative effort by different areas of academic research (media studies, computer science, law and legal philosophy, communication science, political philosophy, and democratic theory). The proposed workshop will set first steps to develop such a much needed vision on the role of recommender systems on the democratic role of the media and define the guidelines as well as a manifesto for future research and long-term goals for the emerging topic of fairness, diversity, and personalization in recommender systems.

diversity, fairness, frontpage, Mediarecht, personalisatie, recommender systems

Bibtex

Article{Bernstein2020, title = {Diversity, Fairness, and Data-Driven Personalization in (News) Recommender System}, author = {Bernstein, A. and Vreese, C.H. de and Helberger, N. and Schulz, W. and Zweig, K.A.}, url = {https://www.ivir.nl/publicaties/download/dagrep_v009_i011_p117_19482.pdf}, doi = {https://doi.org/10.4230/DagRep.9.11.117}, year = {0402}, date = {2020-04-02}, journal = {Dagstuhl Reports}, volume = {9}, number = {11}, pages = {117-124}, abstract = {As people increasingly rely on online media and recommender systems to consume information, engage in debates and form their political opinions, the design goals of online media and news recommenders have wide implications for the political and social processes that take place online and offline. Current recommender systems have been observed to promote personalization and more effective forms of informing, but also to narrow the user’s exposure to diverse content. Concerns about echo-chambers and filter bubbles highlight the importance of design metrics that can successfully strike a balance between accurate recommendations that respond to individual information needs and preferences, while at the same time addressing concerns about missing out important information, context and the broader cultural and political diversity in the news, as well as fairness. A broader, more sophisticated vision of the future of personalized recommenders needs to be formed–a vision that can only be developed as the result of a collaborative effort by different areas of academic research (media studies, computer science, law and legal philosophy, communication science, political philosophy, and democratic theory). The proposed workshop will set first steps to develop such a much needed vision on the role of recommender systems on the democratic role of the media and define the guidelines as well as a manifesto for future research and long-term goals for the emerging topic of fairness, diversity, and personalization in recommender systems.}, keywords = {diversity, fairness, frontpage, Mediarecht, personalisatie, recommender systems}, }

Pitching trade against privacy: reconciling EU governance of personal data flows with external trade external link

International Data Privacy Law, vol. 10, num: 3, pp: 201-221, 2020

Abstract

This article positions EU’s external governance of personal data flows against the backdrop of the international controversy on digital trade versus strict privacy laws. Now that the EU has defined its position on horizontal provisions on cross-border data flows and personal data protection, it is both timely and essential to reassess its strategy on the international transfers of personal data in the purview of its future trade agreements. For its own normative approach and regulatory autonomy, the EU has a pivotal role to play in shaping the interface between trade and privacy before the ‘free trade leviathan’ can restrict the policy choices not only of individual states but also of the EU itself. Our contribution aims to break through the present compartmentalization of privacy scholarship and trade lawyers because it situates personal data flows in both disciplines.

Cross-border data flow, Digital trade, EU law, frontpage, GDPR, international trade law, Personal data, Privacy

Bibtex

Article{Irion2020bb, title = {Pitching trade against privacy: reconciling EU governance of personal data flows with external trade}, author = {Irion, K. and Yakovleva, S.}, doi = {https://doi.org/https://doi.org/10.1093/idpl/ipaa003}, year = {0401}, date = {2020-04-01}, journal = {International Data Privacy Law}, volume = {10}, number = {3}, pages = {201-221}, abstract = {This article positions EU’s external governance of personal data flows against the backdrop of the international controversy on digital trade versus strict privacy laws. Now that the EU has defined its position on horizontal provisions on cross-border data flows and personal data protection, it is both timely and essential to reassess its strategy on the international transfers of personal data in the purview of its future trade agreements. For its own normative approach and regulatory autonomy, the EU has a pivotal role to play in shaping the interface between trade and privacy before the ‘free trade leviathan’ can restrict the policy choices not only of individual states but also of the EU itself. Our contribution aims to break through the present compartmentalization of privacy scholarship and trade lawyers because it situates personal data flows in both disciplines.}, keywords = {Cross-border data flow, Digital trade, EU law, frontpage, GDPR, international trade law, Personal data, Privacy}, }

Belgian court asks CJEU whether seeding is communicating to the public external link

Kluwer Copyright Blog, 2020

aansprakelijkheid, Belgium, Copyright, EU, frontpage, handhaving, right of communication to the public

Bibtex

Article{Bouchè2020b, title = {Belgian court asks CJEU whether seeding is communicating to the public}, author = {Bouchè, G.}, url = {http://copyrightblog.kluweriplaw.com/2020/03/30/belgian-court-asks-cjeu-whether-seeding-is-communicating-to-the-public/}, year = {0330}, date = {2020-03-30}, journal = {Kluwer Copyright Blog}, keywords = {aansprakelijkheid, Belgium, Copyright, EU, frontpage, handhaving, right of communication to the public}, }