Publications

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Freedom of Expression as a Rationale for IP Protection

Izyumenko, E.
GRUR International, vol. 72, iss. : 9, pp: 840-852, 2023

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.

Freedom of expression, Intellectual property

Bibtex

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}, }

Using Terms and Conditions to apply Fundamental Rights to Content Moderation

Quintais, J., Appelman, N. & Fahy, R.
German Law Journal, 2023

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.

Content moderation, Digital services act, Freedom of expression, Online platforms, platform regulation, terms and conditions

Bibtex

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}, }

Expert perspectives on GDPR compliance in the context of smart homes and vulnerable persons

Piasecki, S.
Information & Communications Technology Law, 2023

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?

Data protection, GDPR, Internet of Things, smart devices

Bibtex

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}, }

Annotatie Hof van Justitie van de EU 28 april 2022 (Meta Platforms Ireland / Bundesverband der Verbraucherzentralen und Verbraucherverbände) download

Dommering, E.
Nederlandse Jurisprudentie, iss. : 21, num: 194, pp: 3621-3623, 2023

Facebook, Persoonsgegevens, Privacy

Bibtex

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/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}, }

Gemeentelijke grip op private sensorgegevens: Juridisch kader voor het gemeentelijke handelingsperspectief bij de verwerking van private sensorgegevens in de openbare ruimte download

Janssen, H., Verboeket, L.W., Meiring, A., van Hoboken, J., van Eechoud, M., van den Brink, J.E., Ortlep, R. & Bodó, B.
2023

handhaving, Privacy, sensoren, Surveillance

Bibtex

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/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}, }

EU copyright law round up – second trimester of 2023 external link

Trapova, A. & Quintais, J.
Kluwer Copyright Blog, 2023

Copyright

Bibtex

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}, }

Media Concentration Law: Gaps and Promises in the Digital Age

Seipp, T.
Media and Communication, vol. 11, iss. : 2, pp: 392-405, 2023

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.

digital platforms, editorial independence, European regulation, media concentration, Media law, media pluralism, opinion power, structural dependency

Bibtex

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}, }

Opinie: Internetproletariërs aller landen verenigt u! download

Dommering, E.
Mediaforum, iss. : 3, pp: 85, 2023

Facebook, Internet, moderators

Bibtex

Article{nokey, title = {Opinie: Internetproletariërs aller landen verenigt u!}, author = {Dommering, E.}, url = {https://www.ivir.nl/publications/opinie-internetproletariers-aller-landen-verenigt-u/opinie_dommering_mediaforum-2023-3/}, year = {2023}, date = {2023-06-30}, journal = {Mediaforum}, issue = {3}, keywords = {Facebook, Internet, moderators}, }

Personal Data Stores and the GDPR’s lawful grounds for processing personal data

Janssen, H., Cobbe, J., Norval, C. & Singh, J.
2019

Abstract

Personal Data Stores (‘PDSs’) entail users having a (physical or virtual) device within which they themselves can, in theory, capture, aggregate, and control the access to and the transfer of personal data. Their aim is to empower users in relation to their personal data, strengthening their opportunities for data protection, privacy, and/or to facilitate trade and monetisation. As PDS technologies develop, it is important to consider their role in relation to issues of data protection. The General Data Protection Regulation requires that the processing of user data be predicated on one of its defined lawful bases, whereby the Regulation does not favour any one basis over another. We explore how PDS architectures relate to these lawful bases, and observe that they tend to favour the bases that require direct user involvement. This paper considers issues that the envisaged architectural choices surrounding the lawful grounds may entail.

Data protection, decentralisation, lawful grounds for processing, personal data stores, Privacy, Transparency

Bibtex

Conference paper{nokey, title = {Personal Data Stores and the GDPR’s lawful grounds for processing personal data}, author = {Janssen, H. and Cobbe, J. and Norval, C. and Singh, J.}, doi = {https://doi.org/10.5281/zenodo.3234902}, year = {2019}, date = {2019-05-29}, abstract = {Personal Data Stores (‘PDSs’) entail users having a (physical or virtual) device within which they themselves can, in theory, capture, aggregate, and control the access to and the transfer of personal data. Their aim is to empower users in relation to their personal data, strengthening their opportunities for data protection, privacy, and/or to facilitate trade and monetisation. As PDS technologies develop, it is important to consider their role in relation to issues of data protection. The General Data Protection Regulation requires that the processing of user data be predicated on one of its defined lawful bases, whereby the Regulation does not favour any one basis over another. We explore how PDS architectures relate to these lawful bases, and observe that they tend to favour the bases that require direct user involvement. This paper considers issues that the envisaged architectural choices surrounding the lawful grounds may entail.}, keywords = {Data protection, decentralisation, lawful grounds for processing, personal data stores, Privacy, Transparency}, }

Data protection and tech startups: The need for attention, support, and scrutiny

Norval, C., Janssen, H., Cobbe, J. & Singh, J.
Policy & Internet, vol. 13, iss. : 2, pp: 278-299, 2021

Abstract

Though discussions of data protection have focused on the larger, more established organisations, startups also warrant attention. This is particularly so for tech startups, who are often innovating at the ‘cutting-edge’—pushing the boundaries of technologies that typically lack established data protection best-practices. Initial decisions taken by startups could well have long-term impacts, and their actions may inform (for better or for worse) how particular technologies and the applications they support are implemented, deployed, and perceived for years to come. Ensuring that the innovations and practices of tech startups are sound, appropriate and acceptable should therefore be a high priority. This paper explores the attitudes and preparedness of tech startups to issues of data protection. We interviewed a series of UK-based emerging tech startups as the EU's General Data Protection Regulation (GDPR) came into effect, which revealed areas in which there is a disconnect between the approaches of the startups and the nature and requirements of the GDPR. We discuss the misconceptions and associated risks facing innovative tech startups and offer a number of considerations for the firms and supervisory authorities alike. In light of our discussions, and given what is at stake, we argue that more needs to be done to help ensure that emerging technologies and the practices of the companies that operate them better align with the regulatory obligations. We conclude that tech startups warrant increased attention, support, and scrutiny to raise the standard of data protection for the benefit of us all.

Bibtex

Article{nokey, title = {Data protection and tech startups: The need for attention, support, and scrutiny}, author = {Norval, C. and Janssen, H. and Cobbe, J. and Singh, J.}, doi = {https://doi.org/10.1002/poi3.255}, year = {2021}, date = {2021-05-07}, journal = {Policy & Internet}, volume = {13}, issue = {2}, pages = {278-299}, abstract = {Though discussions of data protection have focused on the larger, more established organisations, startups also warrant attention. This is particularly so for tech startups, who are often innovating at the ‘cutting-edge’—pushing the boundaries of technologies that typically lack established data protection best-practices. Initial decisions taken by startups could well have long-term impacts, and their actions may inform (for better or for worse) how particular technologies and the applications they support are implemented, deployed, and perceived for years to come. Ensuring that the innovations and practices of tech startups are sound, appropriate and acceptable should therefore be a high priority. This paper explores the attitudes and preparedness of tech startups to issues of data protection. We interviewed a series of UK-based emerging tech startups as the EU\'s General Data Protection Regulation (GDPR) came into effect, which revealed areas in which there is a disconnect between the approaches of the startups and the nature and requirements of the GDPR. We discuss the misconceptions and associated risks facing innovative tech startups and offer a number of considerations for the firms and supervisory authorities alike. In light of our discussions, and given what is at stake, we argue that more needs to be done to help ensure that emerging technologies and the practices of the companies that operate them better align with the regulatory obligations. We conclude that tech startups warrant increased attention, support, and scrutiny to raise the standard of data protection for the benefit of us all.}, }