Trust in context: The impact of regulation on blockchain and DeFi external link

Bodó, B. & Filippi, P. de
Regulation & Governance, 2024

Abstract

Trust is a key resource in financial transactions. Traditional financial institutions, and novel blockchain-based decentralized financial (DeFi) services rely on fundamentally different sources of trust and confidence. The former relies on heavy regulation, trusted intermediaries, clear rules (and restrictions) on market competition, and long-standing informal expectations on what banks and other financial intermediaries are supposed to do or not to do. The latter rely on blockchain technology to provide confidence in the outcome of rules encoded in protocols and smart contracts. Their main promise is to create confidence in the way the blockchain architecture enforces rules, rather than to trust banks, regulators, and markets. In this article, we compare the trust architectures surrounding these two financial systems. We provide a deeper analysis of how proposed regulation in the blockchain space affects the code- and confidence-based architectures which so far have underwrote DeFi. We argue that despite the solid safeguards and guarantees which code can offer, the confidence in DeFi is still very much dependent on more traditional trust-enhancing mechanisms, such as code governance, and antifraud regulation to address some of the issues which currently plague this domain, and which have no immediate, purely software-based solutions. What is more, given the risks of bugs or scams in the DeFi space, regulation and trusted intermediaries may need to play a more active role, in order for DeFi to gain the trust of the next generation of users.

blockchain, Regulation, trust

Bibtex

Article{nokey, title = {Trust in context: The impact of regulation on blockchain and DeFi}, author = {Bodó, B. and Filippi, P. de}, url = {https://onlinelibrary.wiley.com/doi/abs/10.1111/rego.12637}, doi = {https://doi.org/10.1111/rego.12637}, year = {2024}, date = {2024-10-06}, journal = {Regulation & Governance}, abstract = {Trust is a key resource in financial transactions. Traditional financial institutions, and novel blockchain-based decentralized financial (DeFi) services rely on fundamentally different sources of trust and confidence. The former relies on heavy regulation, trusted intermediaries, clear rules (and restrictions) on market competition, and long-standing informal expectations on what banks and other financial intermediaries are supposed to do or not to do. The latter rely on blockchain technology to provide confidence in the outcome of rules encoded in protocols and smart contracts. Their main promise is to create confidence in the way the blockchain architecture enforces rules, rather than to trust banks, regulators, and markets. In this article, we compare the trust architectures surrounding these two financial systems. We provide a deeper analysis of how proposed regulation in the blockchain space affects the code- and confidence-based architectures which so far have underwrote DeFi. We argue that despite the solid safeguards and guarantees which code can offer, the confidence in DeFi is still very much dependent on more traditional trust-enhancing mechanisms, such as code governance, and antifraud regulation to address some of the issues which currently plague this domain, and which have no immediate, purely software-based solutions. What is more, given the risks of bugs or scams in the DeFi space, regulation and trusted intermediaries may need to play a more active role, in order for DeFi to gain the trust of the next generation of users.}, keywords = {blockchain, Regulation, trust}, }

Between the cracks: Blind spots in regulating media concentration and platform dependence in the EU external link

Seipp, T., Helberger, N., Vreese, C.H. de & Ausloos, J.
Internet Policy Review, vol. 13, iss. : 4, 2024

Abstract

Alongside the recent regulations addressing platforms and digital markets – the Digital Services Act (DSA) and the Digital Markets Act (DMA) – the European Union’s (EU) European Media Freedom Act (EMFA) aims to safeguard media freedom and pluralism, two essential pillars of democracy. The EMFA introduces several provisions, including rules specifically focused on assessing media concentration in "the online environment". While these initiatives are commendable, there are noticeable blind spots in how EU regulations tackle the issues of dependence on, and the power of, platforms amidst the rising trend of media concentration. An essential aspect that needs attention is the technological power of these platforms, underpinned by their economic and political power. We find that neither the infrastructural power of platforms – transforming them from “gatekeepers” to “digital infrastructure and AI providers” – nor their relational power – creating imbalances and dependencies while posing sustainability challenges for (local) journalism – are effectively addressed in the current EU regulatory frameworks, despite both forms of power driving digital media concentration. The article then concludes with recommendations for a way forward capable of preserving values such as media pluralism and editorial independence.

EU, media concentration, Media law, Platforms, Regulation

Bibtex

Article{nokey, title = {Between the cracks: Blind spots in regulating media concentration and platform dependence in the EU}, author = {Seipp, T. and Helberger, N. and Vreese, C.H. de and Ausloos, J.}, url = {https://policyreview.info/articles/analysis/regulating-media-concentration-and-platform-dependence}, doi = {https://doi.org/10.14763/2024.4.1813 }, year = {2024}, date = {2024-11-14}, journal = {Internet Policy Review}, volume = {13}, issue = {4}, pages = {}, abstract = {Alongside the recent regulations addressing platforms and digital markets – the Digital Services Act (DSA) and the Digital Markets Act (DMA) – the European Union’s (EU) European Media Freedom Act (EMFA) aims to safeguard media freedom and pluralism, two essential pillars of democracy. The EMFA introduces several provisions, including rules specifically focused on assessing media concentration in \"the online environment\". While these initiatives are commendable, there are noticeable blind spots in how EU regulations tackle the issues of dependence on, and the power of, platforms amidst the rising trend of media concentration. An essential aspect that needs attention is the technological power of these platforms, underpinned by their economic and political power. We find that neither the infrastructural power of platforms – transforming them from “gatekeepers” to “digital infrastructure and AI providers” – nor their relational power – creating imbalances and dependencies while posing sustainability challenges for (local) journalism – are effectively addressed in the current EU regulatory frameworks, despite both forms of power driving digital media concentration. The article then concludes with recommendations for a way forward capable of preserving values such as media pluralism and editorial independence.}, keywords = {EU, media concentration, Media law, Platforms, Regulation}, }

Annotatie bij EHRM 13 februari 2024 (Podchasov / Rusland) download

Computerrecht, iss. : 3, num: 98, pp: 184-185, 2024

Abstract

Het EHRM acht een verplichting die er in de prakijk op neerkomt dat encryptietechnologie wordt verzwakt in strijd met artikel 8 EVRM.

Bibtex

Case note{nokey, title = {Annotatie bij EHRM 13 februari 2024 (Podchasov / Rusland)}, author = {van Daalen, O.}, url = {https://www.ivir.nl/publications/annotatie-bij-ehrm-13-februari-2024-podchasov-rusland/annotatie_computerrecht_2024_98/}, year = {2024}, date = {2024-11-14}, journal = {Computerrecht}, issue = {3}, number = {98}, abstract = {Het EHRM acht een verplichting die er in de prakijk op neerkomt dat encryptietechnologie wordt verzwakt in strijd met artikel 8 EVRM.}, }

Annotatie bij Hof van Justitie EU 7 maart 2024 (IAB Europe / Gegevensbeschermingsautoriteit) download

Nederlandse Jurisprudentie, iss. : 33, num: 307, pp: 6560-6562, 2024

bescherming persoonsgegevens

Bibtex

Case note{nokey, title = {Annotatie bij Hof van Justitie EU 7 maart 2024 (IAB Europe / Gegevensbeschermingsautoriteit)}, author = {Dommering, E.}, url = {https://www.ivir.nl/publications/annotatie-bij-hof-van-justitie-eu-7-maart-2024-iab-europe-gegevensbeschermingsautoriteit/annotatie_nj_2024_307/}, year = {2024}, date = {2024-11-08}, journal = {Nederlandse Jurisprudentie}, issue = {33}, number = {307}, keywords = {bescherming persoonsgegevens}, }

Opinion of the European Copyright Society on the CG and YN v Pelham GmbH and Others, Case C-590/23 (Pelham II) external link

Mezei, P., Senftleben, M., Sganga, C. & Geiger, C.
Kluwer Copyright Blog, 2024

Copyright

Bibtex

Online publication{nokey, title = {Opinion of the European Copyright Society on the CG and YN v Pelham GmbH and Others, Case C-590/23 (Pelham II)}, author = {Mezei, P. and Senftleben, M. and Sganga, C. and Geiger, C.}, url = {https://copyrightblog.kluweriplaw.com/2024/11/07/opinion-of-the-european-copyright-society-on-the-cg-and-yn-v-pelham-gmbh-and-others-case-c-590-23-pelham-ii/}, year = {2024}, date = {2024-11-07}, journal = {Kluwer Copyright Blog}, keywords = {Copyright}, }

Everything is harmonized. The CJEU’s decision in Kwantum v. Vitra external link

Kluwer Copyright Blog, 2024

Copyright

Bibtex

Online publication{nokey, title = {Everything is harmonized. The CJEU’s decision in Kwantum v. Vitra}, author = {Hugenholtz, P.}, url = {https://copyrightblog.kluweriplaw.com/2024/11/06/everything-is-harmonized-the-cjeus-decision-in-kwantum-v-vitra/}, year = {2024}, date = {2024-11-06}, journal = {Kluwer Copyright Blog}, keywords = {Copyright}, }

Copyright and the Expression Engine: Idea and Expression in AI-Assisted Creations download

Chicago-Kent Law Review (forthcoming), 2024

Abstract

This essay explores AI-assisted content creation in light of EU and U.S. copyright law. The essay revisits a 2020 study commissioned by the European Commission, which was written before the surge of generative AI. Drawing from traditional legal doctrines, such as the idea/expression dichotomy and its equivalents in Europe, the author argues that iterative prompting may lead to copyright protection of GenAI-assisted output. The paper critiques recent U.S. Copyright Office guidelines that severely restrict registration of works created with the aid of GenAI. Human input, particularly in the conceptual and redaction phases, provides sufficient creative control to justify copyright protection of many AI-assisted works. With many of the expressive features being machine-generated, the scope of copyright protection of such works should, however, remain fairly narrow.

Artificial intelligence, artistic expression, Copyright

Bibtex

Article{nokey, title = {Copyright and the Expression Engine: Idea and Expression in AI-Assisted Creations}, author = {Hugenholtz, P.}, url = {https://www.ivir.nl/publications/copyright-and-the-expression-engine-idea-and-expression-in-ai-assisted-creations/chicagokentlawreview2024/}, year = {2024}, date = {2024-11-05}, journal = {Chicago-Kent Law Review (forthcoming)}, abstract = {This essay explores AI-assisted content creation in light of EU and U.S. copyright law. The essay revisits a 2020 study commissioned by the European Commission, which was written before the surge of generative AI. Drawing from traditional legal doctrines, such as the idea/expression dichotomy and its equivalents in Europe, the author argues that iterative prompting may lead to copyright protection of GenAI-assisted output. The paper critiques recent U.S. Copyright Office guidelines that severely restrict registration of works created with the aid of GenAI. Human input, particularly in the conceptual and redaction phases, provides sufficient creative control to justify copyright protection of many AI-assisted works. With many of the expressive features being machine-generated, the scope of copyright protection of such works should, however, remain fairly narrow.}, keywords = {Artificial intelligence, artistic expression, Copyright}, }

Generative AI, Copyright and the AI Act (v.2) external link

Abstract

Published 1 November 2024. This is a revised and extended version of a paper initially published in August 2024. This paper examines the copyright-relevant rules of the recently published Artificial Intelligence (AI) Act for the EU copyright acquis. The aim of the paper is to provide a critical overview of the relationship between the AI Act and EU copyright law, while highlighting potential gray areas and blind spots for legal interpretation and future policy-making. The paper proceeds as follows. After a short introduction, Section 2 outlines the basic copyright issues of generative AI and the relevant copyright acquis rules that interface with the AI Act. It mentions potential copyright issues with the input or training stage, the model, and outputs. The AI Act rules are mostly relevant for the training of AI models, and the Regulation primarily interfaces with the text and data mining (TDM) exceptions in Articles 3 and 4 of the Copyright in the Digital Single Market Directive (CDSMD). Section 3 then briefly explains the AI Act’s structure and core definitions as they pertain to copyright law. Section 4 is the heart of the paper. It covers in some detail the interface between the AI Act and EU copyright law, namely: the clarification that TDM is involved in training AI models (4.1); the outline of the key copyright obligations in the AI Act (4.2); the obligation to put in place policies to respect copyright law, especially regarding TDM opt-outs (4.3); the projected extraterritorial effect of such obligations (4.4); the transparency obligations (4.5); how the AI Act envisions compliance with such obligations (4.6); and potential enforcement and remedies (4.7). Section 5 offers some concluding remarks, focusing on the inadequacy of the current regime to address one of its main concerns: the fair remuneration of authors and performers.

AI Act, Content moderation, Copyright, DSA, Generative AI, text and data mining, Transparency

Bibtex

Working paper{nokey, title = {Generative AI, Copyright and the AI Act (v.2)}, author = {Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4912701}, year = {2024}, date = {2024-11-01}, abstract = {Published 1 November 2024. This is a revised and extended version of a paper initially published in August 2024. This paper examines the copyright-relevant rules of the recently published Artificial Intelligence (AI) Act for the EU copyright acquis. The aim of the paper is to provide a critical overview of the relationship between the AI Act and EU copyright law, while highlighting potential gray areas and blind spots for legal interpretation and future policy-making. The paper proceeds as follows. After a short introduction, Section 2 outlines the basic copyright issues of generative AI and the relevant copyright acquis rules that interface with the AI Act. It mentions potential copyright issues with the input or training stage, the model, and outputs. The AI Act rules are mostly relevant for the training of AI models, and the Regulation primarily interfaces with the text and data mining (TDM) exceptions in Articles 3 and 4 of the Copyright in the Digital Single Market Directive (CDSMD). Section 3 then briefly explains the AI Act’s structure and core definitions as they pertain to copyright law. Section 4 is the heart of the paper. It covers in some detail the interface between the AI Act and EU copyright law, namely: the clarification that TDM is involved in training AI models (4.1); the outline of the key copyright obligations in the AI Act (4.2); the obligation to put in place policies to respect copyright law, especially regarding TDM opt-outs (4.3); the projected extraterritorial effect of such obligations (4.4); the transparency obligations (4.5); how the AI Act envisions compliance with such obligations (4.6); and potential enforcement and remedies (4.7). Section 5 offers some concluding remarks, focusing on the inadequacy of the current regime to address one of its main concerns: the fair remuneration of authors and performers.}, keywords = {AI Act, Content moderation, Copyright, DSA, Generative AI, text and data mining, Transparency}, }

Geoblocking measures sufficient to prevent a “communication to the public”? The CJEU gets a second chance external link

Kluwer Copyright Blog, 2024

Copyright, Geoblocking, right of communication to the public

Bibtex

Online publication{nokey, title = {Geoblocking measures sufficient to prevent a “communication to the public”? The CJEU gets a second chance}, author = {Toepoel, I. and Valk, E.G.}, url = {https://copyrightblog.kluweriplaw.com/2024/10/31/geoblocking-measures-sufficient-to-prevent-a-communication-to-the-public-the-cjeu-gets-a-second-chance/}, year = {2024}, date = {2024-10-31}, journal = {Kluwer Copyright Blog}, keywords = {Copyright, Geoblocking, right of communication to the public}, }

The Right to an Explanation in Practice: Insights from Case Law for the GDPR and the AI Act external link

Law, Innovation, and Technology (forthcoming), 2024

Abstract

[This is a pre-publication draft paper, forthcoming in Law, Innovation, and Technology 17.2, October 2025. The final version is subject to further revisions.] The right to an explanation under the GDPR has been much discussed in legal-doctrinal scholarship. This paper expands upon this academic discourse, by providing insights into what questions the application of the right to an explanation has raised in legal practice. By looking at cases brought before various judicial bodies and data protection authorities across the European Union, we discuss questions regarding the scope, content, and balancing exercise of the right to an explanation. We argue, moreover, that these questions also raise important interpretative issues regarding the right to an explanation under the AI Act. Similar to the GDPR, the AI Act's right to an explanation leaves many legal questions unanswered. Therefore, the insights from the already established case law under the GDPR, can help us to understand better how the AI Act's right to an explanation should be understood in practice.

AI Act, case law, GDPR, Privacy

Bibtex

Article{nokey, title = {The Right to an Explanation in Practice: Insights from Case Law for the GDPR and the AI Act}, author = {Metikoš, L. and Ausloos, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4996173}, year = {2024}, date = {2024-10-24}, journal = {Law, Innovation, and Technology (forthcoming)}, abstract = {[This is a pre-publication draft paper, forthcoming in Law, Innovation, and Technology 17.2, October 2025. The final version is subject to further revisions.] The right to an explanation under the GDPR has been much discussed in legal-doctrinal scholarship. This paper expands upon this academic discourse, by providing insights into what questions the application of the right to an explanation has raised in legal practice. By looking at cases brought before various judicial bodies and data protection authorities across the European Union, we discuss questions regarding the scope, content, and balancing exercise of the right to an explanation. We argue, moreover, that these questions also raise important interpretative issues regarding the right to an explanation under the AI Act. Similar to the GDPR, the AI Act\'s right to an explanation leaves many legal questions unanswered. Therefore, the insights from the already established case law under the GDPR, can help us to understand better how the AI Act\'s right to an explanation should be understood in practice.}, keywords = {AI Act, case law, GDPR, Privacy}, }