Copyright, open access
Article{nokey,
title = {Editorial: Open Access: we zijn er bijna – maar tegen welke prijs?},
author = {Hugenholtz, P.},
url = {https://www.ivir.nl/nl/publications/open-access-we-zijn-er-bijna-maar-tegen-welke-prijs/auteursrecht_2023_3_editorial/},
year = {2023},
date = {2023-10-03},
journal = {Auteursrecht},
issue = {3},
keywords = {Copyright, open access},
} Artificial intelligence
Online publication{nokey,
title = {An Interdisciplinary Toolbox for Researching the AI-Act},
author = {Metikoš, L.},
url = {https://verfassungsblog.de/an-interdisciplinary-toolbox-for-researching-the-ai-act/},
doi = {https://doi.org/10.17176/20230908-062850-0},
year = {2023},
date = {2023-09-08},
journal = {Verfassungsblog},
keywords = {Artificial intelligence},
} Freedom of expression, moral rights
Chapter{nokey,
title = {Designing a freedom of expression-compliant framework for moral rights in the EU: challenges and proposals},
author = {Geiger, C. and Izyumenko, E.},
doi = {https://doi.org/10.4337/9781789904871.00028},
year = {2023},
date = {2023-09-12},
abstract = {In the discussions on copyright and freedom of expression, it is common to focus on copy-right’s economic rights and their potential to restrict the users’ freedom of artistic creativity, freedom to express criticism or freedom to receive and impart information. By contrast, moral rights of the authors (such as the right of divulgation, the right of attribution and the right of integrity) have been much less explored with regard to their potential conflict with creators’ and users’ freedom of expression. Without doubt, moral rights are at the core of copyright protection, in particular in systems following the so-called “civil law” tradition. Their protection represents an important interest that can claim fundamental rights foundations. On a more general level, moral rights can emanate from the need to protect the authors’ dignity and personality - the values underlying a number of fundamental rights in the human rights treaties. More specifically, certain scholars allocate the interest in the protection of the authors’ moral rights in the right to privacy and personal integrity, others - in the so-called “negative” aspect of the right to freedom of expression - the right not to speak and to be free from unwanted associations. Either one way or another, however, the interest of the author in the protection of her personality via moral rights should not be accorded absolute and hence unqualified protection. In particular, competing freedom of expression interests of users (including derivative creators) must not be neglected as a result of such protection. The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.},
keywords = {Freedom of expression, moral rights},
} Freedom of expression, Intellectual property
Article{nokey,
title = {Freedom of Expression as a Rationale for IP Protection},
author = {Izyumenko, E.},
doi = {https://doi.org/10.1093/grurint/ikad071},
year = {2023},
date = {2023-07-25},
journal = {GRUR International},
volume = {72},
issue = {9},
pages = {840-852},
abstract = {This article revisits the discussion on the rationales for intellectual property (IP) protection by addressing a particular justificatory theory for IP that had come to the forefront of legal discussions in recent years – the theory based on freedom of expression and information. This modern vision of IP focuses on the communicative nature of IP subject-matter and of IP as a legal regime. Firstly, this article reviews the Kantian theory of copyright that lies at the origins of any modern discussions on the communicative nature of IP regulation with the aim of answering whether IP should be more properly conceived as the system for regulating communication. It then looks at the readings of this theory by contemporary copyright scholars and considers applicability of the communicative theory to other areas of IP such as trademarks and patents. The analysis then proceeds towards looking at the freedom of expression dimension of the ‘classic’ IP theories. Reflecting on this matter is important as the rationales for IP protection influence virtually all spheres of IP’s legal regulation, including – first and foremost – the reach of IP holders’ entitlements.},
keywords = {Freedom of expression, Intellectual property},
} Content moderation, Digital services act, Freedom of expression, Online platforms, platform regulation, terms and conditions
Article{nokey,
title = {Using Terms and Conditions to apply Fundamental Rights to Content Moderation},
author = {Quintais, J. and Appelman, N. and Fahy, R.},
doi = {https://doi.org/10.1017/glj.2023.53},
year = {2023},
date = {2023-07-11},
journal = {German Law Journal},
abstract = {Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.},
keywords = {Content moderation, Digital services act, Freedom of expression, Online platforms, platform regulation, terms and conditions},
} Data protection, GDPR, Internet of Things, smart devices
Article{nokey,
title = {Expert perspectives on GDPR compliance in the context of smart homes and vulnerable persons},
author = {Piasecki, S.},
doi = {https://doi.org/10.1080/13600834.2023.2231326},
year = {2023},
date = {2023-07-07},
journal = {Information & Communications Technology Law},
abstract = {This article introduces information gathered through 21 semi-structured interviews conducted with UK, EU and international professionals in the field of General Data Protection Regulation (GDPR) compliance and technology design, with a focus on the smart home context and vulnerable people using smart products. Those discussions gave various insights and perspectives into how the two communities (lawyers and technologists) view intricate practical data protection challenges in this specific setting. The variety of interviewees allowed to compare different approaches to data protection compliance topics. Answers to the following questions were provided: when organisations develop and/or deploy smart devices that use personal data, do they take into consideration the needs of vulnerable groups of people to comply with the GDPR? What are the underlying issues linked to the practical data protection law challenges faced by organisations working on smart devices used by vulnerable persons? How do experts perceive data protection law-related problems in this context?},
keywords = {Data protection, GDPR, Internet of Things, smart devices},
} Facebook, Persoonsgegevens, Privacy
Case note{nokey,
title = {Annotatie Hof van Justitie van de EU 28 april 2022 (Meta Platforms Ireland / Bundesverband der Verbraucherzentralen und Verbraucherverbände)},
author = {Dommering, E.},
url = {https://www.ivir.nl/nl/publications/annotatie-hof-van-justitie-van-de-eu-28-april-2022-meta-platforms-ireland-bundesverband-der-verbraucherzentralen-und-verbraucherverbande/annotatie_nj_2023_194/},
year = {2023},
date = {2023-07-11},
journal = {Nederlandse Jurisprudentie},
issue = {21},
number = {194},
keywords = {Facebook, Persoonsgegevens, Privacy},
} handhaving, Privacy, sensoren, Surveillance
Report{nokey,
title = {Gemeentelijke grip op private sensorgegevens: Juridisch kader voor het gemeentelijke handelingsperspectief bij de verwerking van private sensorgegevens in de openbare ruimte},
author = {Janssen, H. and Verboeket, L.W. and Meiring, A. and van Hoboken, J. and van Eechoud, M. and van den Brink, J.E. and Ortlep, R. and Bodó, B.},
url = {https://www.ivir.nl/nl/publications/gemeentelijke-grip-op-private-sensorgegevens-juridisch-kader-voor-het-gemeentelijke-handelingsperspectief-bij-de-verwerking-van-private-sensorgegevens-in-de-openbare-ruimte/gemeentelijke_grip_op_private_sensorgegevens/},
year = {2023},
date = {2023-06-30},
keywords = {handhaving, Privacy, sensoren, Surveillance},
} Copyright
Online publication{nokey,
title = {EU copyright law round up – second trimester of 2023},
author = {Trapova, A. and Quintais, J.},
url = {https://copyrightblog.kluweriplaw.com/2023/06/30/eu-copyright-law-round-up-second-trimester-of-2023/},
year = {2023},
date = {2023-06-30},
journal = {Kluwer Copyright Blog},
keywords = {Copyright},
} digital platforms, editorial independence, European regulation, media concentration, Media law, media pluralism, opinion power, structural dependency
Article{nokey,
title = {Media Concentration Law: Gaps and Promises in the Digital Age},
author = {Seipp, T.},
doi = {https://doi.org/10.17645/mac.v11i2.6393},
year = {2023},
date = {2023-06-30},
journal = {Media and Communication},
volume = {11},
issue = {2},
pages = {392-405},
abstract = {Power concentrations are increasing in today’s media landscape. Reasons for this include increasing structural and technological dependences on digital platform companies, as well as shifts in opinion power and control over news production, distribution, and consumption. Digital opinion power and platformised media markets have prompted the need for a re-evaluation of the current approach. This article critically revisits and analyses media concentration rules. To this end, I employ a normative conceptual framework that examines ”opinion power in the platform world” at three distinct levels (individual citizen, institutional newsroom, and media ecosystem). At each level, I identify the existing legal tools and gaps in controlling power and concentration in the digital age. Based on that, I offer a unifying theoretical framework for a “digital media concentration law,” along with core concepts and guiding principles. I highlight policy goals and fields that are outside the traditional scope yet are relevant for addressing issues relating to the digital age. Additionally, the emerging European Union regulatory framework—specifically the Digital Services Act, the Digital Markets Act, and the European Media Freedom Act—reflects an evolving approach regarding platforms and media concentration. On a final note, the analysis draws from the mapping and evaluation results of a Europe-wide study on media pluralism and diversity online, which examined (national) media concentration rules.},
keywords = {digital platforms, editorial independence, European regulation, media concentration, Media law, media pluralism, opinion power, structural dependency},
}