Keyword: EU law

Territoriality Roundtables (combined report) download

van Eechoud, M.
2022

Abstract

This report summarizes the outcome of two roundtables held with expert legal scholars on the need for a unified European copyright. Issues discussed include various models for a unitary copyright title and fundamental rights aspects. The Roundtables are part of a strand of the Recreating Europe project that queries how the territorial nature of copyright and related rights can hinder the realisation of the digital single market. While for e.g., trademarks and designs the EU has legislated community wide rights that extend across borders of individual Member States, copyright and related rights remain national at heart. Authors, performers, phonogram producers, database producers and other related rights owners all acquire bundles of national rights in their respective (intellectual) productions. Despite far-reaching harmonization of the subject-matter, scope and duration of national rights, these rights remain restricted in their existence and exploitation to the geographic boundaries of the individual Member States under whose laws they arise, i.e., they are territorial.

Copyright, Digital Single Market, EU law, Intellectual property, unitary title

Bibtex

Report{nokey, title = {Territoriality Roundtables (combined report)}, author = {van Eechoud, M.}, url = {https://www.ivir.nl/nl/publications/territoriality-roundtables-combined-report/territoriality-roundtables-reportfinal870626_d4_4/}, doi = {https://doi.org/10.5281/zenodo.7564660}, year = {2022}, date = {2022-12-14}, abstract = {This report summarizes the outcome of two roundtables held with expert legal scholars on the need for a unified European copyright. Issues discussed include various models for a unitary copyright title and fundamental rights aspects. The Roundtables are part of a strand of the Recreating Europe project that queries how the territorial nature of copyright and related rights can hinder the realisation of the digital single market. While for e.g., trademarks and designs the EU has legislated community wide rights that extend across borders of individual Member States, copyright and related rights remain national at heart. Authors, performers, phonogram producers, database producers and other related rights owners all acquire bundles of national rights in their respective (intellectual) productions. Despite far-reaching harmonization of the subject-matter, scope and duration of national rights, these rights remain restricted in their existence and exploitation to the geographic boundaries of the individual Member States under whose laws they arise, i.e., they are territorial.}, keywords = {Copyright, Digital Single Market, EU law, Intellectual property, unitary title}, }

Microtargeted propaganda by foreign actors: An interdisciplinary exploration external link

Fahy, R., Dobber, T., Zuiderveen Borgesius, F. & Shires, J.
Maastricht Journal of European and Comparative Law, pp: 856-877, 2022

Abstract

This article discusses a problem that has received scant attention in literature: microtargeted propaganda by foreign actors. Microtargeting involves collecting information about people, and using that information to show them targeted political advertisements. Such microtargeting enables advertisers to target ads to specific groups of people, for instance people who visit certain websites, forums, or Facebook groups. This article focuses on one type of microtargeting: microtargeting by foreign actors. For example, Russia has targeted certain groups in the US with ads, aiming to sow discord. Foreign actors could also try to influence European elections, for instance by advertising in favour of a certain political party. Foreign propaganda possibilities existed before microtargeting. This article explores two questions. In what ways, if any, is microtargeted propaganda by foreign actors different from other foreign propaganda? What could lawmakers in Europe do to mitigate the risks of microtargeted propaganda?

EU law, frontpage, gegevensbescherming, microtargeting, propaganda, Regulering, Vrijheid van meningsuiting

Bibtex

Article{nokey, title = {Microtargeted propaganda by foreign actors: An interdisciplinary exploration}, author = {Fahy, R. and Dobber, T. and Zuiderveen Borgesius, F. and Shires, J.}, url = {https://www.ivir.nl/publicaties/download/MaastrichtJournalofEuropeanandComparativeLaw_2021_6.pdf}, doi = {https://doi.org/10.1177/1023263X211042471}, year = {0125}, date = {2022-01-25}, journal = {Maastricht Journal of European and Comparative Law}, abstract = {This article discusses a problem that has received scant attention in literature: microtargeted propaganda by foreign actors. Microtargeting involves collecting information about people, and using that information to show them targeted political advertisements. Such microtargeting enables advertisers to target ads to specific groups of people, for instance people who visit certain websites, forums, or Facebook groups. This article focuses on one type of microtargeting: microtargeting by foreign actors. For example, Russia has targeted certain groups in the US with ads, aiming to sow discord. Foreign actors could also try to influence European elections, for instance by advertising in favour of a certain political party. Foreign propaganda possibilities existed before microtargeting. This article explores two questions. In what ways, if any, is microtargeted propaganda by foreign actors different from other foreign propaganda? What could lawmakers in Europe do to mitigate the risks of microtargeted propaganda?}, keywords = {EU law, frontpage, gegevensbescherming, microtargeting, propaganda, Regulering, Vrijheid van meningsuiting}, }

The perils of legally defining disinformation external link

Fahy, R., Helberger, N. & Appelman, N.
Internet Policy Review, vol. 10, num: 4, 2021

Abstract

EU policy considers disinformation to be harmful content, rather than illegal content. However, EU member states have recently been making disinformation illegal. This article discusses the definitions that form the basis of EU disinformation policy, and analyses national legislation in EU member states applicable to the definitions of disinformation, in light of freedom of expression and the proposed Digital Services Act. The article discusses the perils of defining disinformation in EU legislation, and including provisions on online platforms being required to remove illegal content, which may end up being applicable to overbroad national laws criminalising false news and false information.

desinformatie, EU law, frontpage, Vrijheid van meningsuiting

Bibtex

Article{nokey, title = {The perils of legally defining disinformation}, author = {Fahy, R. and Helberger, N. and Appelman, N.}, url = {https://www.ivir.nl/publicaties/download/InternetPolicyReview_2021.pdf}, doi = {https://doi.org/10.14763/2021.4.1584}, year = {1112}, date = {2021-11-12}, journal = {Internet Policy Review}, volume = {10}, number = {4}, pages = {}, abstract = {EU policy considers disinformation to be harmful content, rather than illegal content. However, EU member states have recently been making disinformation illegal. This article discusses the definitions that form the basis of EU disinformation policy, and analyses national legislation in EU member states applicable to the definitions of disinformation, in light of freedom of expression and the proposed Digital Services Act. The article discusses the perils of defining disinformation in EU legislation, and including provisions on online platforms being required to remove illegal content, which may end up being applicable to overbroad national laws criminalising false news and false information.}, keywords = {desinformatie, EU law, frontpage, Vrijheid van meningsuiting}, }

Panta Rhei: A European Perspective on Ensuring a High Level of Protection of Human Rights in a World in Which Everything Flows external link

Irion, K.
Big Data and Global Trade Law, Cambridge University Press, 2021

Abstract

Human rights do remain valid currency in how we approach planetary-scale computation and accompanying data flows. Today’s system of human rights protection, however, is highly dependent on domestic legal institutions, which unravel faster than the reconstruction of fitting transnational governance institutions. The chapter takes a critical look at the construction of the data flow metaphor as a policy concept inside international trade law. Subsequently, it explores how the respect for human rights ties in with national constitutionalism that becomes increasingly challenged by the transnational dynamic of digital era transactions. Lastly, the chapter turns to international trade law and why its ambitions to govern cross-border data flows will likely not advance efforts to generate respect for human rights. In conclusion, the chapter advocates for a rebalancing act that recognizes human rights inside international trade law.

Artificial intelligence, EU law, frontpage, Human rights, Transparency, WTO law

Bibtex

Chapter{Irion2021bb, title = {Panta Rhei: A European Perspective on Ensuring a High Level of Protection of Human Rights in a World in Which Everything Flows}, author = {Irion, K.}, url = {https://www.cambridge.org/core/books/big-data-and-global-trade-law/panta-rhei/B0E5D7851240E0D2F4562B3C6DFF3011}, doi = {https://doi.org/https://doi.org/10.1017/9781108919234.015}, year = {2021}, date = {2021-07-05}, abstract = {Human rights do remain valid currency in how we approach planetary-scale computation and accompanying data flows. Today’s system of human rights protection, however, is highly dependent on domestic legal institutions, which unravel faster than the reconstruction of fitting transnational governance institutions. The chapter takes a critical look at the construction of the data flow metaphor as a policy concept inside international trade law. Subsequently, it explores how the respect for human rights ties in with national constitutionalism that becomes increasingly challenged by the transnational dynamic of digital era transactions. Lastly, the chapter turns to international trade law and why its ambitions to govern cross-border data flows will likely not advance efforts to generate respect for human rights. In conclusion, the chapter advocates for a rebalancing act that recognizes human rights inside international trade law.}, keywords = {Artificial intelligence, EU law, frontpage, Human rights, Transparency, WTO law}, }

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights external link

Quintais, J. & Quintais, J.
Journal of Intellectual Property Law & Practice, vol. 16, num: 3, pp: 213-225, 2021

Abstract

On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling. This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).

Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, Funke Medien, limitations and exceptions, music sampling, Pelham, Spiegel Online

Bibtex

Article{QuintaisJutte2021, title = {The Pelham Chronicles: Sampling, Copyright and Fundamental Rights}, author = {Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3775599}, doi = {https://doi.org/https://doi.org/10.1093/jiplp/jpab040}, year = {0218}, date = {2021-02-18}, journal = {Journal of Intellectual Property Law & Practice}, volume = {16}, number = {3}, pages = {213-225}, abstract = {On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling. This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).}, keywords = {Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, Funke Medien, limitations and exceptions, music sampling, Pelham, Spiegel Online}, }

Trends And Developments In Artificial Intelligence: Challenges To Patent Law external link

Quintais, J., Gervais, D.J. & P.B. Hugenholtz
2021

Artificial intelligence, EU law, frontpage, Patent law

Bibtex

Online publication{Quintais2021KPB, title = {Trends And Developments In Artificial Intelligence: Challenges To Patent Law}, author = {Quintais, J. and Gervais, D.J. and P.B. Hugenholtz}, url = {http://patentblog.kluweriplaw.com/2021/01/27/trends-and-developments-in-artificial-intelligence-challenges-to-patent-law/}, year = {2021}, date = {2021-01-27}, keywords = {Artificial intelligence, EU law, frontpage, Patent law}, }

Panta rhei: A European Perspective on Ensuring a High-Level of Protection of Digital Human Rights in a World in Which Everything Flows external link

Irion, K.
Amsterdam Law School Research Paper No. 2020, num: 38, 2020

Artificial intelligence, data flow, EU law, Human rights, WTO law

Bibtex

Article{Irion2020d, title = {Panta rhei: A European Perspective on Ensuring a High-Level of Protection of Digital Human Rights in a World in Which Everything Flows}, author = {Irion, K.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3638864}, year = {2020}, date = {2020-11-30}, journal = {Amsterdam Law School Research Paper No. 2020}, number = {38}, keywords = {Artificial intelligence, data flow, EU law, Human rights, WTO law}, }

Article 17 of the Copyright Directive: Why the German implementation proposal is compatible with EU law – Part 1 external link

Husovec, M. & Quintais, J.
Kluwer Copyright Blog, 2020

Art. 17 CDSM Directive, Auteursrecht, EU law, frontpage, implementatie

Bibtex

Article{Husovec2020, title = {Article 17 of the Copyright Directive: Why the German implementation proposal is compatible with EU law – Part 1}, author = {Husovec, M. and Quintais, J.}, url = {http://copyrightblog.kluweriplaw.com/2020/08/26/article-17-of-the-copyright-directive-why-the-german-implementation-proposal-is-compatible-with-eu-law-part-1/}, year = {0827}, date = {2020-08-27}, journal = {Kluwer Copyright Blog}, keywords = {Art. 17 CDSM Directive, Auteursrecht, EU law, frontpage, implementatie}, }

The regulation of crypto-assets in the EU – investment and payment tokens under the radar external link

Ferrari, V.
Maastricht Journal of European and Comparative Law, 2020

Abstract

Based on the guidelines issued by the European Securities and Market Authority and by the European Banking Authority, the article deals with the legal qualification of blockchain-based crypto-assets under EU law. Focusing on crypto-assets that function as a) investment instruments (that is, investment tokens) and as b) electronic money (that is, payment tokens), the work outlines shortages and drawbacks in the applicability and enforcement of existing EU legal frameworks regulating investment activities and payment services. With such analysis, the article seeks to inform the ongoing debate within European institutions on the need of regulatory intervention in this area, and it points out pressing questions to be tackled by further research.

Crypto-assets, cryptocurrencies, enforcement, EU law, financial regulation, fintech, frontpage, Technologie en recht

Bibtex

Article{Ferrari2020, title = {The regulation of crypto-assets in the EU – investment and payment tokens under the radar}, author = {Ferrari, V.}, url = {https://journals.sagepub.com/doi/10.1177/1023263X20911538}, doi = {https://doi.org/https://doi.org/10.1177/1023263X20911538}, year = {0521}, date = {2020-05-21}, journal = {Maastricht Journal of European and Comparative Law}, abstract = {Based on the guidelines issued by the European Securities and Market Authority and by the European Banking Authority, the article deals with the legal qualification of blockchain-based crypto-assets under EU law. Focusing on crypto-assets that function as a) investment instruments (that is, investment tokens) and as b) electronic money (that is, payment tokens), the work outlines shortages and drawbacks in the applicability and enforcement of existing EU legal frameworks regulating investment activities and payment services. With such analysis, the article seeks to inform the ongoing debate within European institutions on the need of regulatory intervention in this area, and it points out pressing questions to be tackled by further research.}, keywords = {Crypto-assets, cryptocurrencies, enforcement, EU law, financial regulation, fintech, frontpage, Technologie en recht}, }

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

Senftleben, M.
0416

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}, }