Seminar & Inter-regional dialogue on the protection of journalists, Council of Europe

ECREA Bi-annual Conference: Communication for Empowerment: Citizens, Markets, Innovations
12.11.2014 - 15.11.2014
Lisbon, Portugal

LAPSI 2.0 Conference
Brussels, Belgium

CPDP, 8th International Conference: Data protection on the move
21.01.2015 - 23.01.2015
Brussels, Belgium


Recent activities


Latest Publications

Open legal data for Europe, O.M. Salamanca & M.M.M. van Eechoud, Workshop report, LAPSI/Openlaws workshop, 4 September 2014.

The EC funded openlaws.eu project and the LAPSI thematic network project joined forces for a workshop on open legal data for Europe. About 25 participants from academia, government, business and civil society discussed whtat the drivers are for opening up legal data for re-use in different jurisdictions and what barriers (perceived or real) exist. The outcome of the discussion will feed into the on-going work in the LAPSI network on legal barriers to re-use, and in the vision for Big Open Legal Data that will be developed as part of Openlaws.eu.


Media and users: towards a new balance, inaugural lecture, N. Helberger, 19 September 2014.

In the digital media environment user attention is scarce and competition for ‘eyeballs’ is fierce. Profiling and targeting users with customized news and advertisements is widely seen as a solution, and part of a larger trend to invest in what the New York Times has called ‘smart new strategies for growing our audience’. The shift from public information intermediary to personal information service creates new dynamics but also new imbalances in the relationship between the media and their users. In my inaugural speech I will state that to restore the balance, the media and regulators in Brussels and The Hague need to develop a vision of how to deal with issues such as media user privacy, editorial integrity and more generally ‘fair algorithmic media practices’."


Setting licence fees for renewing telecommunication spectrum based on an auction, J.P. Poort & M. Kerste, Telecommunications Policy, 2014, in press.

This paper presents a methodology for setting fees for the renewal or extension of spectrum licences, by using the outcome of an auction for comparable licences but with a different licence period. The methodology is a combination of market and cash flow valuation and consists of two main steps. First, prices for spectrum corresponding to that of the licences to be extended are derived from the auction outcome. Second, the relative value addition of the extension period for the new licensee, compared to the value of the licences auctioned, is derived by using a model for the development of EBITDA for an operator over time. A combination of these two is used to calculate fees that match the opportunity costs of extension. Thus, optimum alignment is achieved with the policy objective of using licence fees only to promote efficient use of spectrum, while avoiding state aid at the same time.


Elvis is Returning to the Building: Understanding a Decline in Unauthorized File Sharing, J.P. Poort & J. Weda, presentation at the 9th Annual Conference of the EPIP Association, Brussels, 4 September 2014.


Public Service Media and Cultural Diversity: European Regulatory and Governance Frameworks, T. McGonagle, in: National Conversations: Public Service Media and Cultural Diversity in Europe, Karina Horsti, Gunilla Hultén & Gavan Titley, eds., Bristol: Intellect Books 2014, pp. 61-82.

By virtue of their core philosophy, mandate and typical status in most countries, public service broadcasters (PSBs) are ideally suited to act as vectors for the promotion of cultural diversity. They are equally well-suited to provide shared forums in which a range of different cultures can interact, be explored and, indeed, contested. Notwithstanding the difficulties involved in defining the notion of cultural diversity, various promotional strategies may viably be employed by PSBs. Such strategies include the safeguarding of access for discrete cultural groups to editorial, production and other structures and processes. They could also include measures to ensure that programming and other related services targeting culturally diverse audiences correspond to the audiences’ actual needs and preferences – in qualitative and quantitative terms. In doing so, relevant approaches should seek to balance the needs and preferences of discrete societal groups against the needs and preferences of a more complex societal whole.   
The emergence of new technological and communicative possibilities and paradigms has prompted conceptual and terminological shifts within the European audio-visual sector. PSBs are nowadays expected to operate across an array of technological platforms in order to perpetuate their traditional position of prominence in a rapidly changing and already highly diversified mediascape. This is evidenced by an increasing tendency to frame relevant regulatory discussions in terms of public service media (as opposed to broadcasting in the traditional sense of the word), value(s) and governance.
The existing European regulatory framework for public service broadcasting/media is extensive and spans legal and policy instruments emanating primarily from the European Union and the Council of Europe, but also including standard-setting measures from other intergovernmental organizations (IGOs) such as UNESCO (United Nations Educational, Scientific and Cultural Organization) and, to a lesser extent, the Organization for Security and Co-operation in Europe (OSCE). Even within the European Union and the Council of Europe, differences of focus and emphasis may readily be detected across the most salient instruments. They engage with the issues highlighted in the preceding paragraphs to varying extents.
The principal aim of this chapter is to present a panorama of regulatory instruments applicable at the European level and to assess their overall coherence. The significance of selected examples of divergence in the broader regulatory approach will be explained and evaluated accordingly.


Trouver le diamant dans la mine de données ou les implications juridiques de l'exploration de données, L. Guibault, Documentaliste-Sciences de l'Information, 2014-2, p. 23-25.


Are blocking injunctions against ISPs allowed in Europe? Copyright enforcement in the post-Telekabel EU legal landscape, C.J. Angelopoulos, Journal of Intellectual Property Law & Practice, first published online August 13, 2014. 

In recent years, the national courts of the EU Member States, in an attempt to stem the flow of rampant online copyright infringement, have increasingly turned to the issuance of blocking injunctions against the intermediaries whose websites and networks are used by third parties to commit infringements. This article examines the legal framework in place at the EU level with regard to the legality of such injunctive orders, making a distinction between filtering measures, used to detect copyright infringements, and blocking measures, used to put an end to them. On the basis of that analysis, a detailed examination will be made of the latest CJEU ruling to apply this framework, Case C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH on the lawfullness of open-ended blocking injunctions against internet access providers.


The Internet and the State: A Survey of Key Developments, N.A.N.M. van Eijk, M. van Eeten & M. Mueller, Raad voor Maatschappelijke Ontwikkeling, Den Haag, 2014, 42 p.

This paper sets out to provide a concise overview of key developments in relation to Internet-based services that may have an impact on public policies and ultimately on the state itself. It is intended to support the Netherlands Council for Societal Development (Raad voor Maatschappelijke Ontwikkeling, RMO) in preparing its advisory report to the Dutch government on how to deal with the impact of the Internet on society and the state.


Reintroducing Copyright Formalities: Controversies and Challenges, S.J. van Gompel, The Copyright & New Media Law Newsletter, 2014-2, p. 7-9.


Finding Vredo: The Dutch Supreme Court Decision on Escitalopram, A. Tsoutsanis, Berichten Industriële Eigendom, 2014-2, p. 41-45 and Journal of Intellectual Property Law & Practice, 2014-8, p. 644-649.

This article is about the pharma patent litigation sparked by Lundbeck's blockbuster drug for 'escitalopram', a drug used for treating depression and generalized anxiety disorder. The key theme is about whether patents can also protect novel substances that can be fully envisaged but cannot yet be made. The decision of the Supreme Court is compared with earlier decisions in Germany and the United Kingdom. The author criticizes the lack of explanation provided by the Supreme Court.


Loopholes for Circumventing the Constitution: Warrantless Bulk Surveillance on Americans by Collecting Network Traffic Abroad, A.M. Arnbak & S. Goldberg, Working Paper, presented at the Privacy Enhancing Technologies Symposium 2014.

In this multi-disciplinary paper, we reveal interdependent legal and technical loopholes that intelligence agencies of the U.S. government could use to circumvent constitutional and statutory safeguards for U.S. persons. We outline known and new circumvention techniques that can leave the Internet traffic of Americans as vulnerable to surveillance, and as unprotected by U.S. law, as the Internet traffic of foreigners.

See also:


Convergence, information intermediaries and media pluralism - mapping the legal, social and economic issues at hand: A quick scan, N. Helberger, K. Kleinen-von Königslöw & R. van der Noll, Institute for Information Law, 20 January 2014, 48 p.


Mass surveillance: the Dutch state of denial, N.A.N.M. van Eijk, openDemocracy, 16 May 2014.


Study on sport organisers' rights in the European Union, B. van Rompuy & T. Margoni, Asser International Sports Law Centre & Institute for Information Law, commissioned by the European Commission, DG Education and Culture, February 2014.

The main objectives of the study were to map the legal framework applicable to the origin and ownership of rights to sports events (sports organizers' rights) in the 28 EU Member States; to analyze the nature and scope of sports organizers' rights with regard to licensing practices in the field of the media; and to examine the possibility of establishing licensing practices beyond the media field, notably in the area of gambling and betting. Following this, the study had to formulate recommendations on the opportunity of EU action to address any problems that may be identified in the abovementioned areas of analysis.

See also the executive summary.


Privacy in the Post-NSA Era: Time for a Fundamental Revision?, B. van der Sloot, JIPITEC, 2014-1.

Big Brother Watch and others have filed a complaint against the United Kingdom under the European Convention on Human Rights about a violation of Article 8, the right to privacy. It regards the NSA affair and UK-based surveillance activities operated by secret services. The question is whether it will be declared admissible and, if so, whether the European Court of Human Rights will find a violation. This article discusses three possible challenges for these types of complaints and analyses whether the current privacy paradigm is still adequate in view of the development known as Big Data.


Why copyright and linking can tango, A. Tsoutsanis, Journal of Intellectual Property Law & Practice, 2014-6 (forthcoming).

This article discusses the legal status of links, in connection with the pending cases before the Court of Justice of the European Union in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed. It focuses on the Opinion of the European Copyright Society on the Svensson case. The ALAI Opinion is also briefly discussed. This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European copyright law. The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others. This article was also presented at the 22nd Fordham IP Conference in New York on 25 April 2014.


International Assistance and Media Democratization in the Western Balkans: A Cross-National Comparison, K. Irion & T. Jusić, Working Paper Series on International Media Assistance in the Western Balkans, Working Paper 1-2013, Sarajevo: Analitika - Center for Social Research.


Freedom of Expression of Minorities in the Digital Age: Staking Out a New Research Agenda, T. McGonagle, Special issue 'Freedom of Expression of Minorities in the Digitale Age (guest editor: T. McGonagle), Journal on Ethnopolitics and Minority Issues in Europe (JEMIE), 2013-4, p. 1-15.


The State and beyond: activating (non-)media voices, T. McGonagle, in: Media Policy and Regulation: Activating Voices, Illuminating Silences, H. Sousa et al., eds., Communications and Society Research Centre, University of Minho, Portugal, 2014.
ISBN: 9789898600202, p. 187-198.
This article explores the legal/human rights dimension of the evolving role of the State in activating not only media voices – the typical focus of media pluralism discussions – but a wider range of non-media voices that ought to be heard in public debate. European human rights law – specifically the European Convention on Human Rights and relevant case-law of the European Court of Human Rights – has developed a number of principles that could guide States in their task of activating voices. The article pays particular attention to the nature and scope of the obligation on States to take positive (policy and regulatory) measures to activate voices. The article aims to provide useful initial input into a broader, multi-stranded policy discussion on how the State can best activate a diverse range of voices in an increasingly digitized world.


Standardisation in the area of innovation and technological development, notable in the field of Text and Data Mining, I. Hargreaves, L. Guibault, C.W. Handke, P. Valcke, B. Martens, report from the Expert Group, European Commission, Luxembourg: Publications Office of the European Union, 2014.
ISBN 9789279367434.

Text and data mining (TDM) is an important technique for analysing and extracting new insights and knowledge from the exponentially increasing store of digital data ('Big Data'). It is important to understand the extent to which the EU's current legal framework encourages or obstructs this new form of research and to assess the scale of the economic issues at stake.


Trade mark applications in bad faith: righting wrong in Denmark and why the Benelux is next, A. Tsoutsanis, Journal of Intellectual Property Law & Practice, 2014-2, p. 118-122 en Berichten Industriële Eigendom, 2013, p. 254-260.


Copyright Formalities in the Internet Age: Filters of Protection or Facilitators of Licensing, S.J. van Gompel, Berkeley Technology Law Journal, 2014-3, p. 1425-1458.

This article examines how copyright formalities may aid in addressing the objectives of enhancing the free flow of information by enlarging the public domain and facilitating the licensing of copyright protected materials. For this purpose, it maps the different objectives for reintroducing copyright formalities and provides a brief overview of the types of formalities that might be imposed, including the legal consequences that can be attached to them. The article then explores in more detail which formalities, in what way, can assist in accomplishing the specific objectives of enriching the public domain and facilitating rights clearance. It concludes with a synthesis of the main findings.


The proof of the pudding is in the eating, N.A.N.M. van Eijk, Internet Policy Review, 10 February 2014.


Baywatch: Two approaches to measure the effects of blocking access to The Pirate Bay, J.P. Poort, J. Leenheer, J. van der Ham & C. Dumitru, Telecommunications Policy, 2014.

In the fight against unauthorised sharing of copyright protected material, Dutch Internet Service Providers have been summoned by courts to block their subscribers' access to The Pirate Bay and related sites. This paper studies the effectiveness of this approach towards online copyright enforcement, using both a consumer survey and a newly developed non-infringing technology for BitTorrent monitoring. While a small group of respondents download less from illegal sources or claim to have stopped doing so, no impact is found on the percentage of the Dutch population downloading from illegal sources. Slight changes are found on the distribution of Dutch peers, but these seem related to the awareness raised by blocking rather than the blocking itself.


Not for Designers: On the Inadequacies of EU Design Law and How to Fix It, T. Margoni, JIPITEC, 2013-3, p. 225-248.


Perspectives of creators and performers on the digital era, J.P. Poort, I. Akker, P. Rutten & J. Weda, postprint New Media & Society, 2013, 21 November 2013.


Industry Analysis on Copyright Exceptions & Limitations: Europe, J.P. Poort, presentation at Seoul International Copyright Conference 2013, 26 November 2013.


Delegation to independent regulatory authorities in the media sector: A paradigm shift through the lens of regulatory theory, prepublication, K. Irion & R. Radu, in: The Independence of the Media and Its Regulatory Agencies. Shedding New Light on Formal and Actual Independence Against the National Context, W. Schulz, P. Valcke & K. Irion (eds.), Bristol UK/ Chicago USA: Intellect 2013, p. 15-54.


Measuring independence: Approaches, limitations, and a new ranking tool, prepublication, K. Irion & M. Ledger, in: The Independence of the Media and Its Regulatory Agencies. Shedding New Light on Formal and Actual Independence Against the National Context, W. Schulz, P. Valcke & K. Irion (eds.), Bristol UK/ Chicago USA: Intellect 2013, p. 139-184.


Merkenopposities in de Benelux (Trade Mark Oppositions in the Benelux), A. Tsoutsanis, Tekst & Commentaar IE, 4th edition, Kluwer 2013, p. 270-283.

In this chapter in one of the leading commentaries in the Netherlands on IP law, the author provides detailed comments on how trade mark oppositions in the Benelux work. How to file, where to file and on what basis, are a few of the questions answered in this chapter. The commentary follows the statutory structure of the relevant section in the Benelux Convention for Intellectual Property. The author also compares and contrasts the Benelux Opposition with other key areas: cancellation proceedings on (the same) relative grounds before the courts, oppositions against International Registrations and the OHIM opposition procedure.


Privacy and Piracy in Cyberspace: Justice for All, A. Tsoutsanis, Journal of Intellectual Property Law and Practice, 2013-12, p. 952-956.

This article is about how privacy and piracy lock horns in everyday practice. It outlines three challenges right holders and ISPs face every day, when piracy tries to hide behind privacy: uncertainty, costs and delay.
Apart from only balancing the right of privacy against the right of (intellectual) property, the author also introduces a third element: the right to effective remedy.
The article concludes that the challenge is not in the ‘if’ but in the ‘when’ and ‘how’ ISPs can be obliged to disclose personal data. This requires new research, with a more practice-oriented approach, focusing on two elements: (1) a robust uniform decision making model, allowing for a ‘fair balance between all fundamental rights’, of all stake holders involved, (‘when’); (2) such model needs to benefit from (cost-)effective procedures, to the benefit of all (‘how’).
The article also discusses recent developments in the field of IP enforcement, including the decisions from the European Court of Justice in Promusicae, LSG and Bonnier Audio.


The Independence of the Media and Its Regulatory Agencies, W. Schulz, P. Valcke & K. Irion (eds.), in: N. Carpentier & F. Heinderyckx (eds.) European Communication Research and Education Association (ECREA) Book Series, Bristol UK/ Chicago USA: Intellect 2013, 390 p.

Media independence is vital for democracies, and so is the independence of the regulatory bodies governing it. The Independence of the Media and its Regulatory Agencies explores the complex relationship between media governance and independence of media regulatory authorities within Europe, which form part of the wider framework in which media’s independence may flourish or fade. Based on research in more than forty countries, the contributions analyse the independence of regulators and draw links between social, financial, and legal frameworks. The contributing authors offer theoretical perspectives that combine law and public policy; review research methods; and offer a set of case studies that explore how the national socio-political context influences local institutions. As a whole, the book offers an accessible and relevant account of research into regulatory independence as applied to the audiovisual media sector in Europe.

The book is based on research carried out in the context of the INDIREG and MEDIADEM projects.
More information about the book: http://www.ecrea.eu/publications/bookseries.

See here the front and back cover of the book.


Freedom of Expression, the Media and Journalists: Case-law of the European Court of Human Rights, T. McGonagle &  F.J. Cabrera Blázquez (ed.), in collaboration met D. Voorhoof, IRIS Themes - Vol. III, Strasbourg: European Audiovisual Observatory, 2013, 403 p.

This e-book provides valuable insights into the European Court of Human Rights' case-law on freedom of expression and media and journalistic freedoms. It summarises over 200 judgments or decisions by the Court and provides hyperlinks to the full text of each of the summarised judgments or decisions (via HUDOC, the Court's online case-law database).
For an optimal navigational experience, one should download the e-book and read the technical tips on p. 3.


Safe to be open: Study on the protection of research data and recommendations for access and usage, L. Guibault & A. Wiebe, ed., OpenAIRE+, Universitätsverlag Göttingen, 2013, 168 p.

See also the summary of findings.


Form matters: informing consumers effectively, N. Helberger, Study commissioned by BEUC, the European Consumer Organisation, September 2013, 51 pp.

This study examines what lessons can be learned from behavioural research for the form in which consumer information is being presented. The argument that this study makes is that the form in which information is presented and the effective communication of such information is at least as important as its content, and that this is an aspect that is still generally neglected in information and consumer law. The study is particularly interested in the potential of digital technologies in making consumer information more effective, and new approaches to form requirements in  areas in which the importance of effective communication has already been acknowledged, such as in communications law. The study  concludes with concrete suggestions for the future design of transparency requirements in information law and policy.


On the prospects of raising the originality requirement in copyright law: Perspectives from the Humanities, E. Lavik & S.J. van Gompel, Journal of the Copyright Society of the USA, 2013-3, p. 387-443.

In 1903, in Bleistein v Donaldson Lithographing, Justice Holmes famously concluded that judges are ill-suited to make merit judgments when determining the eligibility for protection of works. Subsequent courts and commentators have generally followed his caution. Yet, no one has thought through how the copyright system would work were Justice Holmes not heeded. What if courts were called upon to determine the aesthetic merit of a work? How would they go about it? And would they be able to separate the gold from the dross by drawing upon an aesthetic evaluation of such kind?
These questions inevitably arise upon reading some recent proposals to raise the originality threshold. Though it is rarely explicitly recognized, the reconfiguration that these proposals entails would effectively bring originality’s meaning in copyright law more into line with how the term is used in aesthetics, where it is considered a function of the work’s level of creativity, measured by its degree of departure from conventional expression.
Drawing on the concept of domain from sociocultural studies of creativity, we explain just why it would be so enormously problematic for courts to identify and to apply a stricter originality criterion that would require them to make decisions on the basis of merit. By comparing the domain of copyright law to the domain of patent law, we argue that it is the latter’s relative coherence and orderliness that enables patent examiners to get traction when assessing an invention’s degree of non-obviousness. The cultural domain, by contrast, is less rule-bound, and therefore non-obviousness is much harder to establish and validate. Aesthetics – both as a set of cultural practices and products and as an academic discipline – are simply too heterogeneous to provide adequate toehold for the legal analysis of higher degrees of originality.
Exploring the reasons and reasoning behind the ban on aesthetic merit in copyright law from a humanities perspective, this article offers a more detailed and nuanced account of Justice Holmes’ conclusion. Contrary to conventional wisdom we argue that the inherent subjectivity of aesthetic preferences does not in itself make it any harder to pinpoint an objective standard of aesthetic merit, though it does make it harder to provide justification for any such standard. Furthermore, the article questions the premise on which the proposal to raise the originality threshold rests, namely that it will cause the undeserving bottom of works to fall out, leaving only aesthetically worthy and socially valuable works protected. Before introducing a stricter originality criterion we need a more careful and empirically based analysis of just what the problems are, what areas of copyright law are affected, and exactly how and why a higher threshold would improve the situation.


How to address current threats to journalism?: The role of the Council of Europe in protecting journalists and other media actors, T. McGonagle, Expert paper, doc.no. MCM 2013(009), the Council of Europe Conference of Ministers responsible for Media and Information Society, 'Freedom of Expression and Democracy in the Digital Age: Opportunities, Rights, Responsibilities', Belgrade, 7-8 November 2013.


The Council of Europe against online hate speech: Conundrums and challenges, T. McGonagle, Expert paper, doc.no. MCM 2013(005), the Council of Europe Conference of Ministers responsible for Media and Information Society, 'Freedom of Expression and Democracy in the Digital Age: Opportunities, Rights, Responsibilities', Belgrade, 7-8 November 2013.


Beyond the Safe Harbours: Harmonising Substantive Intermediary Liability for Copyright Infringement in Europe, C.J. Angelopoulos, Intellectual Property Quarterly, 2013-3, p. 253-274.


European Union Competence in the Field of Copyright, A.B. Ramalho, Report Commissioned by the UK Intellectual Property Office,  August 2013.

Executive Summary


The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies, J.P. Poort & J.P. Quintais, preprint, forthcoming in JIPITEC, 2013-3.

This article provides a legal and economic analysis of private copying levies in the EU, against the background of the Copyright Directive (2001/29), a number of recent rulings by the European Court of Justice and the recommendations presented by mediator Vitorino earlier this year. It concludes that notwithstanding these rulings and recommendations, there remains a lack of concordance on the relevance of contractual stipulations and digital rights management technologies (DRM) for setting levies, and the concept of harm. While Mr. Vitorino and AG Sharpston (in the Opinion preceding VG Wort v Kyocera) use different lines of reasoning to argue that levies raised on authorized copies would lead to double payment, the Court of Justice’s decision in VG Wort v Kyocera seems to conclude that such copies should nonetheless be levied. If levies are to provide fair compensation for harm resulting from acts of private copying, economic analysis suggests one should distinguish between various kinds of private copies and take account of the extent to which the value said copies have for consumers can be priced into the purchase. Given the availability of DRM (including technical protection measures), the possibility of such indirect appropriation leads to the conclusion that the harm from most kinds of private copies is de minimis and gives no cause for levies. The user value of copies from unauthorised sources (e.g. from torrent networks or cyber lockers), on the other hand, cannot be appropriated indirectly by rightholders. It is however an open question in references for preliminary rulings pending at the Court of Justice whether these copies are included in the scope of the private copying exception or limitation and can thus be be levied for. If they are not, as currently happens in several EU Member States, legal and economic analysis leads to the conclusion that the scope of private copying acts giving rise to harm susceptible of justifying levies is gradually diminishing.

Article also published on SSRN.


Media Literacy: No Longer the Shrinking Violet of European Audiovisual Media Regulation?, T. McGonagle, Media Law & Policy (Media Center, New York Law School), 2013-2, p. 187-212.

Media literacy is very much in the ascendant in European regulatory and policy-making circles at the moment, prompting the suggestion that it has now lost its erstwhile shrinking-violet status in the European audiovisual media sector. The article will commence with a brief exploration of selected theories surrounding media literacy. More precisely, it will canvas the main rationales for promoting media literacy, definitional issues, and the groups centrally implicated in media literacy initiatives – both as target groups and as other stakeholders. The article will then identify, contextualise and scrutinise the key reference points for the promotion of media literacy in the European audiovisual regulatory and policy frameworks. Both the EU and the Council of Europe have adopted a number of legally binding and policy instruments that aim to improve media literacy levels across Europe. Finally, the article will consider the prospects for the future development of media literacy within European regulatory structures.

Article is a revised and updated version of Media Literacy: No Longer the Shrinking Violet of European Audiovisual Media Regulation?, in: S. Nikoltchev, ed., Media Literacy, IRIS plus, 2011-3.


Quality, merit, aesthetics and purpose: An inquiry into EU copyright law's eschewal of other criteria than originality, S.J. van Gompel & E. Lavik, Revue Internationale du Droit d'Auteur (RIDA), 2013-236, p. 100-295.

This article examines the rule that no other criteria than originality shall be applied to determine the eligibility for protection of works, as contained in a few EU Directives on copyright (i.e. the Computer Programs Directive, the Term Directive and the Database Directive). While aimed to preclude criteria such as quality, merit, aesthetics and purpose from the subject-matter definition of copyright, the legal significance and practical implications of this rule is not entirely clear. Analysing the legislative history of the ‘no other criteria’-clause in EU copyright law and its equivalent in the national laws of four EU Member States (i.e. France, Germany, the Netherlands and the United Kingdom), the article observes that the objective of the rule is to prevent the grant or refusal of copyright by the courts from being dependent on subjective evaluative judgments about a work’s intrinsic value or worth. Judges are not supposed to assess whether a work aesthetically or commercially stands out, but only need to determine whether it meets the originality threshold. In practice, however, while the courts practically always refrain from using the lack of success, merit or quality as an argument to withhold copyright from a creation, they do not necessarily ignore a work’s success, merit or quality when granting protection to it. Moreover, the article finds that genres and categories of works are not always definable on formal properties alone and that judges sometimes cannot escape making qualitative or aesthetic considerations when determining the eligibility for protection of low original works. The article concludes that, since judges sometimes cannot make a clear distinction between protectable and non-protectable subject-matter on the basis of the originality criterion alone, copyright law’s concept of originality would fail to adequately serve its discriminatory function, should the ‘no other criteria’-clause always be taken literally.


Baywatch: two Approaches to Measure the Effects of Blocking Access to The Pirate Bay, J.P. Poort, J. Leenheer, J. van der Ham & C. Dumitru, Working paper, 22 August 2013.

In the fight against the unauthorised sharing of copyright protected material, aka piracy, Dutch Internet Service Providers have been summoned by courts to block their subscribers’ access to The Pirate Bay (TPB) and related sites. This paper studies the effectiveness of this approach towards online copyright enforcement, using both a consumer survey and a newly developed non-infringing technology for BitTorrent monitoring. While a small group of respondents download less from illegal sources or claim to have stopped, and a small but significant effect is found on the distribution of Dutch peers, no lasting net impact is found on the percentage of the Dutch population downloading from illegal sources.


The empire strikes back: CISAC beats Commission in General Court, Journal of Intellectual Property Law & Practice, J.P. Quintais, 2013-9, p. 680-683.


Consent to Behavioural Targeting in European Law - What are the Policy Implications of Insights from Behavioural Economics?, F.J. Borgesius, Conference paper for Privacy Law Scholars Conference (PLSC), 6-7 June 2013, Berkeley, United States. (Draft paper, comments are welcome).


Security Economics in the HTTPS Value Chain, H. Asghari, M.J.G. van Eeten, A.M. Arnbak & N.A.N.M. van Eijk, paper peer-reviewed and presented at WEIS 2013, 3 June 2013.


Segmentação Comportamental, Do Not Track e o desenvolvimento jurídico europeu e holandês (Behavioral Targeting, Do Not Track, and European and Dutch Legal Developments), F.J. Borgesius, poliTICs, 2013-14, p. 9-22.


Behavioral Targeting: A European Legal Perspective, F.J. Borgesius, IEEE Security & Privacy, 2013-1, p. 82-85.


Comparison of Patent Claim Construction between Netherlands and Germany on Basis of AGA v. Occlutech, A. Tsoutsanis & Chr. Kau, World Intellectual Property Report, 2013-6, p. 32-34.


Fair Use in Europe, P.B. Hugenholtz, Communications of the ACM, 2013-5, p. 26-28.


Filtering for Copyright Enforcement in Europe after the Sabam cases, F.J. Borgesius & S. Kulk, draft paper.

Article also published in European Intellectual Property Review, 2012-11, p. 54-58.


User-generated Content and Audiovisual News: The Ups and Downs of an Uncertain Relationship, T. McGonagle, in S. Nikoltchev (red.), Open Journalism, IRIS Plus 2013-2, Strasbourg, European Audiovisual Observatory, p. 7-25.


Obscured by Clouds or How to Address Governmental Access to Cloud Data From Abroad, J.V.J. van Hoboken, A.M. Arnbak & N.A.N.M. van Eijk, draft paper presented at Privacy Law Scholars Conference 2013, 6-7 June, Berkeley, United States.

See also: Snowden saga reveals gaps in protection of European data, Financial Times, 29 July 2013, p. 2.


Cloud Computing in Higher Education and Research Institutions and the USA Patriot Act, J.V.J. van Hoboken, A.M. Arnbak, N.A.N.M. van Eijk and with the assistance of N.P.H. Kruijsen, November 2012.

Institutions have started to move their data and ICT operations into the cloud. It is becoming clear that this is leading to a decrease of overview and control over government access to data for law enforcement and national security purposes. This report looks at the possibilities for the U.S. government to obtain access to information in the cloud from Dutch institutions on the basis of U.S. law and on the basis of Dutch law and international co-operation. It concludes that the U.S. legal state of affairs implies that the transition towards the cloud has important negative consequences for the possibility to manage information confidentiality, information security and the privacy of European end users in relation to foreign governments.
The Patriot Act from 2001 has started to play a symbolic role in the public debate. It is one important element in a larger, complex and dynamic legal framework for access to data for law enforcement and national security purposes. In particular, the FISA Amendments Act provision for access to data of non-U.S. persons outside the U.S. enacted in 2008 deserves attention. The report describes this and other legal powers for the U.S. government to obtain data of non-U.S. persons located outside of the U.S. from cloud providers that fall under its jurisdiction. Such jurisdiction applies widely, namely to cloud services that conduct systematic business in the United States and is not dependent on the location where the data are stored, as is often assumed. For non-U.S. persons located outside of the U.S., constitutional protection is not applicable and the statutory safeguards are minimal.
In the Netherlands and across the EU, government agencies have legal powers to obtain access to cloud data as well. These provisions can also be be used to assist the U.S. government, when it does not have jurisdiction for instance, but they must stay within the constitutional safeguards set by national constitutions, the European Convention on Human Rights and the EU Charter.

This is the English translation of a report that was released in September 2012 in The Netherlands. It was covered extensively in Dutch newspapers, on Radio1 and the 8 PM news bulletin of public broadcaster NOS. Politicians across the spectrum reacted on the report, both directly in the media and through Parliamentary questions. Meanwhile, the State Secretary of Security and Justice has responded to the Parliamentary questions on 15 October 2012. References can be found on the Institute for Information Law website. The report is also available on SSRN.

See also: Patriot Act can "obtain" data in Europe, researchers say, CBS News, 4 December 2012.


Making User Created News Work, J. Esmeijer, O. Nieuwenhuis, C. Mijs, E. van der Broek, C. Versloot, N. Helberger, B. van der Sloot en T. McGonagle, TNO-rapport, 27 december 2012.


Freedom of expression and the Dutch cookie-wall, N. Helberger, conference paper accepted  at MIT 8 Public Media Private Media Conference, Boston, 3-5 May 2013.


Copyright Reform for Growth and Jobs: Modernising the European Copyright Framework, P.B. Hugenholtz & I. Hargreaves, Policy brief, Lisbon Council, 2013.


Critical views on the French approach to "net neutrality", C.A. Jasserand, Journal of Internet Law, 2013-9, p. 18-28.


Licensing Research Data under Open Access Conditions, L. Guibault, in: D. Beldiman (ed.), Information and Knowledge: 21st Centurt Challenges in Intellectual Property and Knowledge Governance, Cheltenham: Edward Elgar, forthcoming 2013.


The Orphan Works Chimera and How to Defeat It: A View From Across the Atlantic, S.J. van Gompel, Berkeley Technology Law Journal, 2013-3, p. 1347-1378.

This article contends that the orphan works problem (the problem of unknown or untraceable right owners) is a generic problem. It is not specific to a certain form of use, but has implications across the copyright spectrum. Yet, it manifests itself in different ways, depending on the type of use that is made of these works. The article consists of three parts. Employing the metaphor of the Chimera, a three-headed she-monster in ancient Greek mythology, Part I introduces the different ways in which the problem manifests itself and describes the legal uncertainty that the different categories of users of orphan works experience. Next, Part II argues that there is not one best approach to address the orphan works problem. Rather, it suggests adopting a multifaceted approach that would provide adequate relief for the different categories of users of orphan works. Part III concludes.


The Roles of Material Transfer Agreements in Genetics Databases and Bio-Banks, T. Margoni, in: Comparative Issues in the Governance of Research Biobanks, G. Pascuzzi, U. Izzo & M. Macilotti (eds.), Heidelberg: Springer 2013.
ISBN: 9783642331152.


The Wittem Group's European Copyright Code, P.B. Hugenholtz, in: Codification of European Copyright Law, T-E. Synodinou (ed.), Information Law Series, vol. 29, Alphen aan den Rijn: Kluwer Law International 2012, p. 339-354.


Hosting providers’ liability: Cour de Cassation puts an end to the notice and stay down rule, C.A. Jasserand, Journal of Intellectual Property Law & Practice, 2013-3, p. 192-193.

In applying the rules on hosting providers' liability, French lower courts have shifted from a notice and take down rule (provided by Article 14 of the E-Commerce Directive and Article 6 of the French implementing law) to a notice and stay down rule (created by the judges). This interpretation was confirmed in 2011 by the Paris Court of Appeal but overruled by the Cour de cassation on 12 July 2012.


Dr Strangelaw, or how Portugal learned to stop worrying and love P2P, J.P. Quintais, Journal of Intellectual Property Law & Practice, 2013-3, p. 193-196.

A recent decision by a Public Prosecutor in a criminal case in Portugal, based on an Opinion by the Prosecutor General's Office, considers download acts by peer-to-peer (P2P) users to be covered by the private use limitation, raises the possibility that acts of upload are also covered by it and considers IP addresses insufficient evidence upon which to prosecute users.


Digital Consumers and the Law: Towards a Cohesive European Framework, N. Helberger, L. Guibault, M.B.M. Loos, C. Mak, L. Pessers & B. van der Sloot, Kluwer Law International: Alphen aan den Rijn 2013.
ISBN: 9789041140494.

This book provides a critical analysis of how digitisation affects established concepts and policies in consumer law. Based on evidence of the actual experience and problems encountered by consumers in digital markets, the book offers a ground-breaking study of the main issues arising in relation to the application of general consumer and sector-specific law. An interdisciplinary team of researchers from the Centre for the Study of European Contract Law (CSECL) and the Institute for Information Law (IViR), both University of Amsterdam, combine their expertise in general consumer and contract law, telecommunications law, media law, copyright law and privacy law in a joint effort to point the way to a truly cohesive European Framework for Digital Consumers and the Law.
Topics in this book include the characteristics of digital content markets and how they relate to traditional consumer law; consumer concerns, reasonable expectations and how they are protected by law; the difficult question of the classification of digital content; legal questions triggered by prosumers and underage consumers; the feasibility and future of the information approach to consumer protection; the role of fundamental rights considerations, and the legal implications of an economy that uses personal data as the new currency.
Digital Consumers and the Law is an important analysis for all those interested or involved in the regulation of digital content markets. With its comprehensive discussion of a wide range of fundamental as well as praxis-oriented questions, it is an essential read for academics, policy makers, members of the content industry as well as consumer representatives.

See more details about the book here.


Proposal for a Directive on collective rights management and (some) multi-territorial licensing, J.P. Quintais, European Intellectual Property Review, 2013-2, p. 65-73.

This article provides a brief descriptive analysis of the recent Proposal from the European Commission for a Directive on collective rights management and multi-territorial licensing. After setting the necessary background, it examines the Proposal's main provisions, focusing on those establishing a governance and transparency framework for collecting societies and multi-territorial licensing for online uses of musical works.

Article available on Westlaw. Preliminary version on Kluwer Copyright Blog:
Part I and Part II.


Net Neutrality and Audiovisual Services? N.A.N.M. van Eijk, in: Routledge Handbook of Media Law (eds. M Price, S. Verhulst & L. Morgan), Routledge 2012, p. 523-538.
ISBN 978-0-415-68316-6.


LAPSI Policy Recommendation n. 4: Privacy and Personal Data Protection, C. Dos Santos, E. Bassi, C. de Terwagne, M. Fernádez Salmerón, P. Tepina & B. van der Sloot, LAPSI Working Group 2: Privacy Aspects of PSI.


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Updated 16.10.2014