Keyword: EU law

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}, }

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

Irion, K. & Yakovleva, S.
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}, }

Prospective Policy Study on Artificial Intelligence and EU Trade Policy external link

Irion, K. & Williams, J.
2020

Abstract

Artificial intelligence is poised to be 21st century’s most transformative general purpose technology that mankind ever availed itself of. Artificial intelligence is a catch-all for technologies that can carry out complex processes fairly independently by learning from data. In the form of popular digital services and products, applied artificial intelligence is seeping into our daily lives, for example, as personal digital assistants or as autopiloting of self-driving cars. This is just the beginning of a development over the course of which artificial intelligence will generate transformative products and services that will alter world trade patterns. Artificial intelligence holds enormous promise for our information civilization if we get the governance of artificial intelligence right. What makes artificial intelligence even more fascinating is that the technology can be deployed fairly location-independent. Cross-border trade in digital services which incorporate applied artificial intelligence into their software architecture is ever increasing. That brings artificial intelligence within the purview of international trade law, such as the General Agreement on Trade in Services (GATS) and ongoing negotiations at the World Trade Organization (WTO) on trade related aspects of electronic commerce. The Dutch Ministry of Foreign Affairs commissioned this study to generate knowledge about the interface between international trade law and European norms and values in the use of artificial intelligence.

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

Bibtex

Report{Irion2020b, title = {Prospective Policy Study on Artificial Intelligence and EU Trade Policy}, author = {Irion, K. and Williams, J.}, url = {https://www.ivir.nl/ivir_policy-paper_ai-study_online/https://www.ivir.nl/ivir_artificial-intelligence-and-eu-trade-policy-2/}, year = {2020}, date = {2020-01-21}, abstract = {Artificial intelligence is poised to be 21st century’s most transformative general purpose technology that mankind ever availed itself of. Artificial intelligence is a catch-all for technologies that can carry out complex processes fairly independently by learning from data. In the form of popular digital services and products, applied artificial intelligence is seeping into our daily lives, for example, as personal digital assistants or as autopiloting of self-driving cars. This is just the beginning of a development over the course of which artificial intelligence will generate transformative products and services that will alter world trade patterns. Artificial intelligence holds enormous promise for our information civilization if we get the governance of artificial intelligence right. What makes artificial intelligence even more fascinating is that the technology can be deployed fairly location-independent. Cross-border trade in digital services which incorporate applied artificial intelligence into their software architecture is ever increasing. That brings artificial intelligence within the purview of international trade law, such as the General Agreement on Trade in Services (GATS) and ongoing negotiations at the World Trade Organization (WTO) on trade related aspects of electronic commerce. The Dutch Ministry of Foreign Affairs commissioned this study to generate knowledge about the interface between international trade law and European norms and values in the use of artificial intelligence.}, keywords = {Artificial intelligence, EU law, Human rights, Transparency, WTO law}, }

Toward Compatibility of the EU Trade Policy with the General Data Protection Regulation external link

Yakovleva, S. & Irion, K.
AJIL Unbound, vol. 114, pp: 10-14, 2020

Abstract

The European Union’s (EU) negotiating position on cross-border data flows, which the EU has recently included in its proposal for the World Trade Organization (WTO) talks on e-commerce, not only enshrines the protection of privacy and personal data as fundamental rights, but also creates a broad exception for a Member’s restrictions on cross-border transfers of personal data. This essay argues that maintaining such a strong position in trade negotiations is essential for the EU to preserve the internal compatibility of its legal system when it comes to the right to protection of personal data under the EU Charter of Fundamental Rights and the recently adopted General Data Protection Regulation (GDPR).

EU law, external trade, frontpage, GDPR, international trade law, WTO

Bibtex

Article{https://doi.org/10.1017/aju.2019.81, title = {Toward Compatibility of the EU Trade Policy with the General Data Protection Regulation}, author = {Yakovleva, S. and Irion, K.}, url = {https://www.cambridge.org/core/journals/american-journal-of-international-law/article/toward-compatibility-of-the-eu-trade-policy-with-the-general-data-protection-regulation/04D5070244733CAEFDAA14C533BAFF7E/share/b44381ff85510e8580104599385baab8c1e3179e}, doi = {https://doi.org/https://doi.org/10.1017/aju.2019.81}, year = {0109}, date = {2020-01-09}, journal = {AJIL Unbound}, volume = {114}, pages = {10-14}, abstract = {The European Union’s (EU) negotiating position on cross-border data flows, which the EU has recently included in its proposal for the World Trade Organization (WTO) talks on e-commerce, not only enshrines the protection of privacy and personal data as fundamental rights, but also creates a broad exception for a Member’s restrictions on cross-border transfers of personal data. This essay argues that maintaining such a strong position in trade negotiations is essential for the EU to preserve the internal compatibility of its legal system when it comes to the right to protection of personal data under the EU Charter of Fundamental Rights and the recently adopted General Data Protection Regulation (GDPR).}, keywords = {EU law, external trade, frontpage, GDPR, international trade law, WTO}, }

Fundamental rights review of EU data collection instruments and programmes external link

Fondazione Giacomo Brodolini & Irion, K.
2019

Abstract

This report is the result of a Pilot Project requested by the European Parliament, managed by the Commission and carried out by a group of independent experts. The scope of the project was to establish and support an independent experts’ group to carry out a fundamental rights review of existing EU legislation and instruments in the Area of Freedom, Security and Justice (AFSJ) that involve the collection, retention, storage or transfer of personal data. One outcome of the project is a database of AFSJ legislation and instruments with individual fundamental rights assessments (at http://brodolini.mbs.it/). The final report concludes that that fundamental rights safeguards need to be more consistently considered and applied in the AFSJ. The conclusions highlight five broad issues for further consideration: ambiguous definitions and open terms; law enforcement access to migration databases; the expansion of centralised databases; data retention periods; and information rights and duties.

Area of Freedom, EU databases, EU law, frontpage, Fundamental rights, Personal data, Privacy, Security and Justice

Bibtex

Online publication{Brodolini2019, title = {Fundamental rights review of EU data collection instruments and programmes}, author = {Fondazione Giacomo Brodolini and Irion, K.}, url = {http://www.fondazionebrodolini.it/sites/default/files/final_report_0.pdf}, year = {1204}, date = {2019-12-04}, abstract = {This report is the result of a Pilot Project requested by the European Parliament, managed by the Commission and carried out by a group of independent experts. The scope of the project was to establish and support an independent experts’ group to carry out a fundamental rights review of existing EU legislation and instruments in the Area of Freedom, Security and Justice (AFSJ) that involve the collection, retention, storage or transfer of personal data. One outcome of the project is a database of AFSJ legislation and instruments with individual fundamental rights assessments (at http://brodolini.mbs.it/). The final report concludes that that fundamental rights safeguards need to be more consistently considered and applied in the AFSJ. The conclusions highlight five broad issues for further consideration: ambiguous definitions and open terms; law enforcement access to migration databases; the expansion of centralised databases; data retention periods; and information rights and duties.}, keywords = {Area of Freedom, EU databases, EU law, frontpage, Fundamental rights, Personal data, Privacy, Security and Justice}, }

The New Copyright in the Digital Single Market Directive: A Critical Look external link

Quintais, J.
European Intellectual Property Review, vol. 42, num: 1, pp: 28-41, 2020

Abstract

This article provides an overview and critical examination of the new Directive on copyright and related rights in the Digital Single Market. Despite some positive aspects, the Directive includes multiple problematic provisions, including the controversial new right for press publishers and the new liability regime for content-sharing platforms. On balance, the Directive denotes a normative preference for private ordering over public choice in EU copyright law, and lacks adequate safeguards for users. It is also a complex text with multiple ambiguities, which will likely fail promote the desired harmonization and legal certainty in this area.

Collective licensing, Copyright, digital content, Digital Single Market, EU law, exceptions and limitations, frontpage, Licensing, Online services, text and data mining

Bibtex

Article{Quintais2019e, title = {The New Copyright in the Digital Single Market Directive: A Critical Look}, author = {Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3424770}, year = {0107}, date = {2020-01-07}, journal = {European Intellectual Property Review}, volume = {42}, number = {1}, pages = {28-41}, abstract = {This article provides an overview and critical examination of the new Directive on copyright and related rights in the Digital Single Market. Despite some positive aspects, the Directive includes multiple problematic provisions, including the controversial new right for press publishers and the new liability regime for content-sharing platforms. On balance, the Directive denotes a normative preference for private ordering over public choice in EU copyright law, and lacks adequate safeguards for users. It is also a complex text with multiple ambiguities, which will likely fail promote the desired harmonization and legal certainty in this area.}, keywords = {Collective licensing, Copyright, digital content, Digital Single Market, EU law, exceptions and limitations, frontpage, Licensing, Online services, text and data mining}, }

Advocate General Turns down the Music – Sampling Is Not a Fundamental Right under EU Copyright Law external link

Jütte, B. & Quintais, J.
European Intellectual Property Review , vol. 41, num: 10, pp: 654-657, 2019

Abstract

In his Opinion in Pelham (C-467/17) Advocate General Szpunar suggests that the use of samples from sound recordings is not permitted under the European copyright rules. While applying an extensive interpretation of the scope of the rights of phonogram producers, he rejects an extensive interpretation of the quotation exception and limits the role of fundamental rights as external checks to copyright law. Despite its merits, there are key aspects of the Opinion that raise concerns: a too broad interpretation of the reproduction right; and an unduly strict view of copyright exceptions – especially quotation – and the role of fundamental rights in shaping the scope of copyright protection. On those points, we suggest that the Court does not follow the Opinion.

Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, limitations and exceptions, music sampling

Bibtex

Article{Jütte2019, title = {Advocate General Turns down the Music – Sampling Is Not a Fundamental Right under EU Copyright Law}, author = {Jütte, B. and Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3377205}, year = {2019}, date = {2019-05-09}, journal = {European Intellectual Property Review }, volume = {41}, number = {10}, pages = {654-657}, abstract = {In his Opinion in Pelham (C-467/17) Advocate General Szpunar suggests that the use of samples from sound recordings is not permitted under the European copyright rules. While applying an extensive interpretation of the scope of the rights of phonogram producers, he rejects an extensive interpretation of the quotation exception and limits the role of fundamental rights as external checks to copyright law. Despite its merits, there are key aspects of the Opinion that raise concerns: a too broad interpretation of the reproduction right; and an unduly strict view of copyright exceptions – especially quotation – and the role of fundamental rights in shaping the scope of copyright protection. On those points, we suggest that the Court does not follow the Opinion.}, keywords = {Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, limitations and exceptions, music sampling}, }

The right to protection of personal data: the new posterchild of European Union citizenship? external link

Irion, K. & Granger, M.-P.
Edward Elgar Publishing, 1031

Abstract

In this chapter we argue that the right to data protection is the posterchild of EU citizenship in the digital era. We start by providing a brief overview of the gradual construction of the right to personal data protection in the EU. We then identify a range of actors who have played a particular role in the building process, including EU citizens themselves. Next, we review the current legal ‘architecture’ of the right to the protection of personal data and discuss whether it could serve as a model for the future development of EU citizenship, notwithstanding remaining challenges at the level of national implementation and public and private compliance with EU rules. Finally, we reflect on the future of the right to data protection, and its contribution to the development of EU citizenship as a legal regime.

citizenship, EU law, frontpage, GDPR, Privacy

Bibtex

Chapter{Irion2018c, title = {The right to protection of personal data: the new posterchild of European Union citizenship?}, author = {Irion, K. and Granger, M.-P.}, url = {https://www.ivir.nl/publicaties/download/The-right-to-protection-of-personal-data-prepub.pdf}, doi = {https://doi.org/10.4337/9781788113441.00019}, year = {1031}, date = {2018-10-31}, abstract = {In this chapter we argue that the right to data protection is the posterchild of EU citizenship in the digital era. We start by providing a brief overview of the gradual construction of the right to personal data protection in the EU. We then identify a range of actors who have played a particular role in the building process, including EU citizens themselves. Next, we review the current legal ‘architecture’ of the right to the protection of personal data and discuss whether it could serve as a model for the future development of EU citizenship, notwithstanding remaining challenges at the level of national implementation and public and private compliance with EU rules. Finally, we reflect on the future of the right to data protection, and its contribution to the development of EU citizenship as a legal regime.}, keywords = {citizenship, EU law, frontpage, GDPR, Privacy}, }

Public Security Exception in the Area of non-personal Data in the European Union, Briefing Requested by the IMCO committee Policy, European Parliament, Brussels, April 2018 external link

Irion, K.
Briefing requested by the IMCO committee, num: PE 618.986, 2018

Abstract

Mid-September last year the European Commission presented a proposal for a new regulation on the free flow of non-personal data in the European Union. The free movement of data in the digital single market has been called the fifth freedom complementing the existing freedoms on movement of goods, services, capital and people. The proposed regulation seeks to remove unjustified data localisation measures that fall in the scope of EU law. Often this will amount to cutting bureaucratic red tape in the private sector, such as for example removing a domestic obligation to maintain a full copy of bookkeeping on premise of an organisation in a given Member State. Member States can justify an activity that contravenes this proposal on grounds of public security - an exception this briefing is tasked with analyzing. The briefing concludes that the fifth freedom would have a moderate impact for the European data economy. The author offers concrete guidance to the EU legislator how to improve the draft regulation in order to preserve the freedom of contract. The public security exception foreseen could be too narrow because it precludes member states to take measures that can be justified on grounds of public policy or the protection of health and life of humans, animals or plants. Drawing on the analogy with fire safety regulations in the member states it would be too early to preclude that in the future we will need local mirrors and handles. Locality continues to matter for example in the Internet of Things environment because as individuals we live in a physical place.

data embassy, data flow, EU law, frontpage, national security exception, non-personal data

Bibtex

Article{Irion2018b, title = {Public Security Exception in the Area of non-personal Data in the European Union, Briefing Requested by the IMCO committee Policy, European Parliament, Brussels, April 2018}, author = {Irion, K.}, url = {http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/618986/IPOL_BRI(2018)618986_EN.pdf}, year = {0416}, date = {2018-04-16}, journal = {Briefing requested by the IMCO committee}, number = {PE 618.986}, abstract = {Mid-September last year the European Commission presented a proposal for a new regulation on the free flow of non-personal data in the European Union. The free movement of data in the digital single market has been called the fifth freedom complementing the existing freedoms on movement of goods, services, capital and people. The proposed regulation seeks to remove unjustified data localisation measures that fall in the scope of EU law. Often this will amount to cutting bureaucratic red tape in the private sector, such as for example removing a domestic obligation to maintain a full copy of bookkeeping on premise of an organisation in a given Member State. Member States can justify an activity that contravenes this proposal on grounds of public security - an exception this briefing is tasked with analyzing. The briefing concludes that the fifth freedom would have a moderate impact for the European data economy. The author offers concrete guidance to the EU legislator how to improve the draft regulation in order to preserve the freedom of contract. The public security exception foreseen could be too narrow because it precludes member states to take measures that can be justified on grounds of public policy or the protection of health and life of humans, animals or plants. Drawing on the analogy with fire safety regulations in the member states it would be too early to preclude that in the future we will need local mirrors and handles. Locality continues to matter for example in the Internet of Things environment because as individuals we live in a physical place.}, keywords = {data embassy, data flow, EU law, frontpage, national security exception, non-personal data}, }

Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public external link

Quintais, J.
Journal of World Intellectual Property (forthcoming), vol. 2018, pp: 1-36, 2018

Abstract

This article examines the online right of communication to the public under EUlaw and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the article advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court's complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so-called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.

Copyright, EU law, frontpage, hyperlinking, intermediary liability, right of communication to the public

Bibtex

Article{Quintais2018c, title = {Untangling the Hyperlinking Web: In Search of the Online Right of Communication to the Public}, author = {Quintais, J.}, url = {https://onlinelibrary.wiley.com/doi/abs/10.1111/jwip.12107}, year = {0621}, date = {2018-06-21}, journal = {Journal of World Intellectual Property (forthcoming)}, volume = {2018}, pages = {1-36}, abstract = {This article examines the online right of communication to the public under EUlaw and its interpretation by the Court of Justice of the EU. The focus of the analysis is on the controversial application of the right to hyperlinking, and its implications for the online activities of users and intermediaries. After outlining the international and EU legal framework on the right of communication to the public, the article advances a conceptual framework for the interpretation of the exclusive right in the online environment, which is both based on, and attempts to bring coherence to, the Court\'s complex case law. On this basis, the article then explores and critically assesses the main areas of legal uncertainty for the online application of the right and the normative considerations at stake—especially fundamental rights and the promotion of technological development—offering interpretative and legislative solutions for their resolution. The article argues for abandoning the legislative proposals for a new right for press publishers and the so-called value gap, as both are fundamentally flawed. Instead, reform should focus on redefining the right of communication to the public and preserving safe harbors, especially for hosting providers.}, keywords = {Copyright, EU law, frontpage, hyperlinking, intermediary liability, right of communication to the public}, }