How to design data access for researchers: A legal and software development perspective

Drunen, M. van & Noroozian, A.
Computer Law & Security Review, vol. 52, 2024

Abstract

Public scrutiny of platforms has been limited by a lack of transparency. In response, EU law increasingly requires platforms to provide data to researchers. The Digital Services Act and the proposed Regulation on the Transparency and Targeting of Political Advertising in particular require platforms to provide access to data through ad libraries and in response to data access requests. However, these obligations leave platforms considerable discretion to determine how access to data is provided. As the history of platforms’ self-regulated data access projects shows, the technical choices involved in designing data access significantly affect how researchers can use the provided data to scrutinise platforms. Ignoring the way data access is designed therefore creates a danger that platforms’ ability to limit research into their services simply shifts from controlling what data is available to researchers, to how data access is provided. This article explores how the Digital Services Act and proposed Political Advertising Regulation should be used to control the operationalisation of data access obligations that enable researchers to scrutinise platforms. It argues the operationalisation of data access regimes should not only be seen as a legal problem, but also as a software design problem. To that end it explores how software development principles may inform the operationalisation of data access obligations. The article closes by exploring the legal mechanisms available in the Digital Services Act and proposed Political Advertising Regulation to exercise control over the design of data access regimes, and makes five recommendations for ways in which these mechanisms should be used to enable research into platforms.

data access, DSA, Platforms, Transparency

Bibtex

Article{nokey, title = {How to design data access for researchers: A legal and software development perspective}, author = {Drunen, M. van and Noroozian, A.}, doi = {https://doi.org/10.1016/j.clsr.2024.105946}, year = {2024}, date = {2024-04-01}, journal = {Computer Law & Security Review}, volume = {52}, pages = {}, abstract = {Public scrutiny of platforms has been limited by a lack of transparency. In response, EU law increasingly requires platforms to provide data to researchers. The Digital Services Act and the proposed Regulation on the Transparency and Targeting of Political Advertising in particular require platforms to provide access to data through ad libraries and in response to data access requests. However, these obligations leave platforms considerable discretion to determine how access to data is provided. As the history of platforms’ self-regulated data access projects shows, the technical choices involved in designing data access significantly affect how researchers can use the provided data to scrutinise platforms. Ignoring the way data access is designed therefore creates a danger that platforms’ ability to limit research into their services simply shifts from controlling what data is available to researchers, to how data access is provided. This article explores how the Digital Services Act and proposed Political Advertising Regulation should be used to control the operationalisation of data access obligations that enable researchers to scrutinise platforms. It argues the operationalisation of data access regimes should not only be seen as a legal problem, but also as a software design problem. To that end it explores how software development principles may inform the operationalisation of data access obligations. The article closes by exploring the legal mechanisms available in the Digital Services Act and proposed Political Advertising Regulation to exercise control over the design of data access regimes, and makes five recommendations for ways in which these mechanisms should be used to enable research into platforms.}, keywords = {data access, DSA, Platforms, Transparency}, }

TDM: Poland challenges the rule of EU copyright law external link

Kluwer Copyright Blog, 2024

Copyright, EU, Poland, text and data mining

Bibtex

Online publication{nokey, title = {TDM: Poland challenges the rule of EU copyright law}, author = {Keller, P.}, url = {https://copyrightblog.kluweriplaw.com/2024/02/20/tdm-poland-challenges-the-rule-of-eu-copyright-law/}, year = {2024}, date = {2024-02-20}, journal = {Kluwer Copyright Blog}, keywords = {Copyright, EU, Poland, text and data mining}, }

Rechtsbeschermingsmogelijkheden van het stemgeluid onder Nederlands portretrecht in de context van audio-deepfakes download

Ars Aequi, vol. 72, iss. : 9, pp: 627-634,

Abstract

Recente ontwikkelingen van AI-technologie maken het mogelijk de menselijke stem geheel waarheidsgetrouw na te bootsen. Potentiële inbreuk op ieders privacyrechten en de IE-rechten van makers is hiermee een nieuwe realiteit. Dit artikel bespreekt de mogelijkheden om ter bescherming van het stemgeluid aansluiting te vinden bij het portretrecht, op basis van de wet, relevante jurisprudentie en literatuur.

Copyright, portretrecht

Bibtex

Article{nokey, title = {Rechtsbeschermingsmogelijkheden van het stemgeluid onder Nederlands portretrecht in de context van audio-deepfakes}, author = {Valk, E.G.}, url = {https://www.ivir.nl/publications/rechtsbeschermingsmogelijkheden-van-het-stemgeluid-onder-nederlands-portretrecht-in-de-context-van-audio-deepfakes/aa20230627/}, year = {}, date = {DATE ERROR: pub_date = }, journal = {Ars Aequi}, volume = {72}, issue = {9}, pages = {627-634}, abstract = {Recente ontwikkelingen van AI-technologie maken het mogelijk de menselijke stem geheel waarheidsgetrouw na te bootsen. Potentiële inbreuk op ieders privacyrechten en de IE-rechten van makers is hiermee een nieuwe realiteit. Dit artikel bespreekt de mogelijkheden om ter bescherming van het stemgeluid aansluiting te vinden bij het portretrecht, op basis van de wet, relevante jurisprudentie en literatuur.}, keywords = {Copyright, portretrecht}, }

From the DMCA to the DSA: A Transatlantic Dialogue on Online Platform Regulation and Copyright external link

Verfassungsblog, 2024

Copyright, DMCA, DSA, Online platforms

Bibtex

Online publication{nokey, title = {From the DMCA to the DSA: A Transatlantic Dialogue on Online Platform Regulation and Copyright}, author = {Quintais, J.}, url = {https://verfassungsblog.de/from-the-dmca-to-the-dsa/?s=09}, year = {2024}, date = {2024-02-19}, journal = {Verfassungsblog}, keywords = {Copyright, DMCA, DSA, Online platforms}, }

Protection against unfair competition in the European Union: from divergent national approaches to harmonized rules on search result rankings, influencers and greenwashing

Journal of Intellectual Property Law & Practice, vol. 19, iss. : 2, pp: 149-161, 2024

Abstract

This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.

Bibtex

Article{nokey, title = {Protection against unfair competition in the European Union: from divergent national approaches to harmonized rules on search result rankings, influencers and greenwashing}, author = {Senftleben, M.}, doi = {https://doi.org/10.1093/jiplp/jpad123}, year = {2024}, date = {2024-01-17}, journal = {Journal of Intellectual Property Law & Practice}, volume = {19}, issue = {2}, pages = {149-161}, abstract = {This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.}, }

Article 10bis of the Paris Convention as the common denominator for protection against unfair competition in national and regional contexts

Journal of Intellectual Property Law & Practice, vol. 19, iss. : 2, pp: 81-89, 2024

Abstract

This article explains the historical development of Article 10bis of the Paris Convention and discusses core concepts underlying the international provision, in particular, the overarching requirement of honest practices in industrial or commercial matters, the question of a competitive relationship and the examples of unfair practices given in Article 10bis. It also sheds light on guidance following from the Model Provisions on Protection Against Unfair Competition which the World Intellectual Property Organization presented in 1996. The analysis shows that the honest practices test need not be understood in a traditional, empirical sense. More modern, functional approaches can be adopted to align the application of Article 10bis with a broader spectrum of policy goals: not only fair play between competitors but also consumer protection and the general public interest in a well-functioning marketplace. Similarly, the requirement of a competitive relationship need not focus on direct competition in the same market segment. An indirect competitive relationship can be deemed sufficient. While the prohibited acts listed in Article 10bis(3) reflect central categories of unfair behaviour and harm, current developments and challenges—ranging from computational advertising, influencer marketing and product recommender systems to questions surrounding data exclusivity and sustainability issues—raise the question whether an update and enrichment of the catalogue of prohibited acts could be necessary to provide guidance at the international level.

Bibtex

Article{nokey, title = {Article 10bis of the Paris Convention as the common denominator for protection against unfair competition in national and regional contexts}, author = {Senftleben, M.}, doi = {https://doi.org/10.1093/jiplp/jpad122}, year = {2024}, date = {2024-01-18}, journal = {Journal of Intellectual Property Law & Practice}, volume = {19}, issue = {2}, pages = {81-89}, abstract = {This article explains the historical development of Article 10bis of the Paris Convention and discusses core concepts underlying the international provision, in particular, the overarching requirement of honest practices in industrial or commercial matters, the question of a competitive relationship and the examples of unfair practices given in Article 10bis. It also sheds light on guidance following from the Model Provisions on Protection Against Unfair Competition which the World Intellectual Property Organization presented in 1996. The analysis shows that the honest practices test need not be understood in a traditional, empirical sense. More modern, functional approaches can be adopted to align the application of Article 10bis with a broader spectrum of policy goals: not only fair play between competitors but also consumer protection and the general public interest in a well-functioning marketplace. Similarly, the requirement of a competitive relationship need not focus on direct competition in the same market segment. An indirect competitive relationship can be deemed sufficient. While the prohibited acts listed in Article 10bis(3) reflect central categories of unfair behaviour and harm, current developments and challenges—ranging from computational advertising, influencer marketing and product recommender systems to questions surrounding data exclusivity and sustainability issues—raise the question whether an update and enrichment of the catalogue of prohibited acts could be necessary to provide guidance at the international level.}, }

Information Law and the Digital Transformation of the University. Part I. Digital Sovereignty download

Bibtex

Report{nokey, title = {Information Law and the Digital Transformation of the University. Part I. Digital Sovereignty}, author = {Meiring, A. and Yakovleva, S. and Irion, K. and van Hoboken, J. and van Eechoud, M.}, url = {https://www.ivir.nl/publications/information-law-and-the-digital-transformation-of-the-university-part-i-digital-sovereignty/part-i-digital-sovereignty-2/}, year = {2023}, date = {2023-09-15}, }

Editorial: Protection against unfair competition around the globe

Senftleben, M., Handler, M. & Calboli, I.
Journal of Intellectual Property Law & Practice, vol. 19, iss. : 2, pp: 79-80, 2024

Bibtex

Article{nokey, title = {Editorial: Protection against unfair competition around the globe}, author = {Senftleben, M. and Handler, M. and Calboli, I.}, doi = {https://doi.org/10.1093/jiplp/jpad121}, year = {2024}, date = {2024-01-25}, journal = {Journal of Intellectual Property Law & Practice}, volume = {19}, issue = {2}, pages = {79-80}, }

Territoriality and the Quest for a Unitary Copyright Title external link

IIC, vol. 55, pp: 66-88, 2024

Abstract

After 30 years of harmonization at EU level, copyright and related rights remain decidedly territorial in scope. This is despite the continuous quest for an internal market and the profound impact on cross-border creation, dissemination and use of cultural content. This contribution recounts the outcome of research done on territoriality in the context of the ReCreating Europe project. It discusses why national territorial rights persist, what type of legal mechanisms the EU legislature employs to address the adverse effects of territoriality, and sketches a number of models for a unitary title based on Art. 118 TFEU which could be explored going forward.

Art. 118 TFEU, Copyright, EU, territoriality, unitary title

Bibtex

Article{nokey, title = {Territoriality and the Quest for a Unitary Copyright Title}, author = {van Eechoud, M.}, url = {https://link.springer.com/article/10.1007/s40319-023-01412-w}, doi = {https://doi.org/10.1007/s40319-023-01412-w}, year = {2024}, date = {2024-02-01}, journal = {IIC}, volume = {55}, pages = {66-88}, abstract = {After 30 years of harmonization at EU level, copyright and related rights remain decidedly territorial in scope. This is despite the continuous quest for an internal market and the profound impact on cross-border creation, dissemination and use of cultural content. This contribution recounts the outcome of research done on territoriality in the context of the ReCreating Europe project. It discusses why national territorial rights persist, what type of legal mechanisms the EU legislature employs to address the adverse effects of territoriality, and sketches a number of models for a unitary title based on Art. 118 TFEU which could be explored going forward.}, keywords = {Art. 118 TFEU, Copyright, EU, territoriality, unitary title}, }