@article{nokey,

title = {Annotatie bij Afd. bestuursrechtspraak van de Raad van State 15 maart 2023},

author = {Hins, A.},

url = {https://www.ivir.nl/noot-wouter-hins-bij-abrvs-15-maart-2023/},

year  = {2023},

date = {2023-11-23},

journal = {Jurisprudentie Bescherming Persoonsgegevens},

number = {74},

issue = {3},

pages = {558-562},

abstract = {Bestuursrechtelijke procedure van een journalist tegen de burgemeester van Amsterdam op grond van de Wet openbaarheid van bestuur (Wob). Verzocht is om informatie over de uitvoering van een gemeentelijk programma ter voorkoming van radicalisering bij jongeren. Daarmee zijn gevoelige persoonsgegevens gemoeid inzake godsdienst en etnische afkomst. Tegelijk is het een materie van groot maatschappelijk belang. De Wob kende geen bijzondere regeling voor het verstrekken van informatie aan journalisten. De Afdeling oordeelt dat artikel 85 AVG (Algemene Verordening Gegevensbescherming) ook niet tot een ruimere regeling verplicht. Het hoger beroep wordt ongegrond verklaard.

In de annotatie wordt gesteld dat de Afdeling meer aandacht had moeten besteden aan de aanvullende werking van artikel 10 EVRM wat betreft de toegang tot overheidsinformatie. Ook wordt ingegaan op enkele wijzigingen die de recente Wet open overheid heeft gebracht.

},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Opinie: De DSA en desinformatie: meer dan censuur alleen},

author = {Leerssen, P.},

url = {https://www.ivir.nl/opinie_mediaforum_2023_5/},

year  = {2023},

date = {2023-11-17},

journal = {Mediaforum},

issue = {5},

pages = {157},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Generative AI and Author Remuneration},

author = {Senftleben, M.},

doi = {10.1007/s40319-023-01399-4},

year  = {2023},

date = {2023-11-07},

journal = {IIC - International Review of Intellectual Property and Competition Law },

abstract = {With the evolution of generative AI systems, machine-made productions in the literary and artistic field have reached a level of refinement that allows them to replace human creations. The increasing sophistication of AI systems will inevitably disrupt the market for human literary and artistic works. Generative AI systems provide literary and artistic output much faster and cheaper. It is therefore foreseeable that human authors will be exposed to substitution effects. They may lose income as they are replaced by machines in sectors ranging from journalism and writing to music and visual arts. Considering this trend, the question arises whether it is advisable to take measures to compensate human authors for the reduction in their market share and income. Copyright law could serve as a tool to introduce an AI levy system and ensure the payment of equitable remuneration. In combination with mandatory collective rights management, the new revenue stream could be used to finance social and cultural funds that improve the working and living conditions of flesh-and-blood authors.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Reciprociteit bij bescherming vormgeving na RAAP: Annotatie bij Hoge Raad 31 maart 2023 (Kwantum / Vitra)},

author = {van Eechoud, M.},

url = {https://www.ivir.nl/annotatie_bie_2023_10/},

year  = {2023},

date = {2023-10-31},

urldate = {2023-10-31},

journal = {Berichten Industriele Eigendom},

number = {10},

issue = {4},

pages = {221-223},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@techreport{nokey,

title = {Inaugural lecture: The Lure of Open Data},

author = {van Eechoud, M.},

url = {https://www.ivir.nl/lure-of-open-data/},

year  = {2023},

date = {2023-10-31},

note = {Given 24 May 2013, translated from Dutch.},

keywords = {},

pubstate = {published},

tppubtype = {techreport}

}

@article{nokey,

title = {Simplifying the WIPO Broadcasting Treaty: Proposed Amendments to the Third Revised Draft},

author = {Hugenholtz, P.},

url = {https://www.ivir.nl/wipo-broadcasting-treaty-proposed-amendments/},

year  = {2023},

date = {2023-10-25},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@techreport{nokey,

title = {Public interest content on audiovisual platforms: access and findability},

author = {McGonagle, T. and Bosch, L. van den and Buijs, D. and Huang, M. and Nazarski, M. and Fahy, R. and Poort, J. and Ulasiuk, I.},

url = {https://www.ivir.nl/iris-special-2023-01/},

year  = {2023},

date = {2023-10-17},

series = {IRIS Special},

note = {IRIS Special, 2023-1, European Audiovisual Observatory, Strasbourg 2023},

keywords = {},

pubstate = {published},

tppubtype = {techreport}

}

@article{nokey,

title = {How the EU Outsources the Task of Human Rights Protection to Platforms and Users: The Case of UGC Monetization},

author = {Senftleben, M. and Quintais, J. and Meiring, A.},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4421150},

year  = {2023},

date = {2023-10-12},

journal = {Berkeley Technology Law Journal},

volume = {38},

issue = {3},

abstract = {With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same \textendash highly problematic \textendash approach.



Against this background, the paper discusses the weakening \textendash and potential loss \textendash of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.},

keywords = {},

pubstate = {forthcoming},

tppubtype = {article}

}

@article{nokey,

title = {Opinie: Koranverbrandingen in Zweden, Denemarken en Nederland},

author = {Dommering, E.},

url = {https://www.ivir.nl/njb_2023_29/},

year  = {2023},

date = {2023-10-05},

journal = {Nederlands Juristenblad (NJB)},

number = {2125},

issue = {29},

pages = {2480-2482},

abstract = {De stelling van onder andere de Minister van Justitie dat het verbranden van boeken nu eenmaal mag in onze rechtsstaat berust op een dubbele dwaling: \'{e}\'{e}n omtrent het object van de vrijheid van meningsuiting en \'{e}\'{e}n omtrent hoe in deze tijd van sociale media om te gaan met het conflict tussen de vrijheid van meningsuiting en de vrijheid van godsdienst. },

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Editorial: Open Access: we zijn er bijna \textendash maar tegen welke prijs?},

author = {Hugenholtz, P.},

url = {https://www.ivir.nl/auteursrecht_2023_3_editorial/},

year  = {2023},

date = {2023-10-03},

journal = {Auteursrecht},

issue = {3},

pages = {101-102},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {EU copyright law round up \textendash third trimester of 2023},

author = {Trapova, A. and Quintais, J.},

url = {https://copyrightblog.kluweriplaw.com/2023/10/02/eu-copyright-law-round-up-third-trimester-of-2023/},

year  = {2023},

date = {2023-10-02},

journal = {Kluwer Copyright Blog},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {An Interdisciplinary Toolbox for Researching the AI-Act},

author = {Metiko\v{s}, L.},

url = {https://verfassungsblog.de/an-interdisciplinary-toolbox-for-researching-the-ai-act/},

doi = {10.17176/20230908-062850-0},

year  = {2023},

date = {2023-09-08},

journal = {Verfassungsblog},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@inbook{nokey,

title = {Commentaar},

author = {Sax, M.},

editor = {Lukas M. Verburgt \& Jan Willen Duyvendak},

url = {https://www.ivir.nl/publicaties/download/Sax-Commentaar-Academische-Vrijheden-in-Nederland.pdf},

year  = {2023},

date = {2023-09-06},

urldate = {2023-09-06},

pages = {109-113},

publisher = {Amsterdam University Press},

keywords = {},

pubstate = {published},

tppubtype = {inbook}

}

@misc{nokey,

title = {AI decrypted: AI, copyright \& text and data mining (TDM)},

author = {Quintais, J.},

url = {https://informationlabs.org/podcasts/ai-lab/joaopedroquintais-06sept23/},

year  = {2023},

date = {2023-09-06},

urldate = {2023-09-06},

publisher = {AI Lab by Information Labs},

note = {Video podcast at Information Labs.},

keywords = {},

pubstate = {published},

tppubtype = {presentation}

}

@article{nokey,

title = {Column: De procedurele wending van de DSA: het recht op menselijke tussenkomst in content moderation},

author = {Metiko\v{s}, L.},

url = {https://www.ivir.nl/de-procedurele-wending-van-de-dsa/},

year  = {2023},

date = {2023-08-08},

journal = {Mediaforum},

issue = {Studenteneditie},

pages = {22},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@proceedings{Ocel\'{i}k2023,

title = {Shifting Battlegrounds: Corporate Political Activity in the General Data Protection Regulation},

author = {Ocel\'{i}k, V., Kolk, A. and Irion, K. },

url = {https://www.ivir.nl/amproc-2023-208bp64/},

doi = {https://doi.org/10.5465/AMPROC.2023.208bp},

year  = {2023},

date = {2023-08-03},

urldate = {2023-08-03},

journal = { Academy of Management Proceedings},

volume = {2023},

issue = {1},

abstract = {The impressive body of literature on corporate political activity (CPA) has remained largely silent on the substance of information strategies that firms utilize to influence policymakers. To address this deficiency, our study is situated in the European Union (EU), where political scientists have noted information strategies to be central to achieving lobbying success; the EU also provides a context of global norm-setting activities, especially with its General Data Protection Regulation (GDPR). Aided by recent advances in the field of unsupervised machine learning, we performed a structural topic model analysis of the entire set of lobby documents submitted during two GDPR consultations, which were obtained via a freedom of information request. },

keywords = {},

pubstate = {published},

tppubtype = {proceedings}

}

@article{nokey,

title = {Defining the ‘media’ in Europe: pitfalls of the proposed European Media Freedom Act},

author = {Seipp, T. and Fahy, R. and Drunen, M. van},

doi = {10.1080/17577632.2023.2240998},

year  = {2023},

date = {2023-07-31},

journal = {Journal of Media Law},

abstract = {This comment examines the definition of ‘media’ under the recently-proposed European Media Freedom Act (EMFA), and highlights its potential flaws, while pointing to possible considerations for future improvement. Notably, the narrow service-based approach to defining ‘media’ under Article 2 EMFA appears to be in conflict with the functional approach to defining media under European and international human rights law. Additionally, a lack of transparency and safeguards regarding how the criteria of ‘editorial independence’ is to be assessed, especially under Article 17 EMFA, is problematic. The risk that such decisions are made based on commercial and/or political considerations rather than established standards of media freedom must be avoided, especially when platforms are to assess editorial independence.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Using Terms and Conditions to apply Fundamental Rights to Content Moderation},

author = {Quintais, J. and Appelman, N. and Fahy, R.},

doi = {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 = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Expert perspectives on GDPR compliance in the context of smart homes and vulnerable persons},

author = {Piasecki, S.},

doi = {10.1080/13600834.2023.2231326},

year  = {2023},

date = {2023-07-11},

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 = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Annotatie Hof van Justitie van de EU 28 april 2022 (Meta Platforms Ireland / Bundesverband der Verbraucherzentralen und Verbraucherverb\"{a}nde)},

author = {Dommering, E.},

url = {https://www.ivir.nl/annotatie_nj_2023_194/},

year  = {2023},

date = {2023-07-11},

journal = {Nederlandse Jurisprudentie},

number = {194},

issue = {21},

pages = {3621-3623},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@techreport{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 Bod\'{o}, B.},

url = {https://www.ivir.nl/publicaties/download/Gemeentelijke_grip_op_private_sensorgegevens.pdf},

year  = {2023},

date = {2023-07-06},

note = {Onderzoek in opdracht van de gemeente Amsterdam},

keywords = {},

pubstate = {published},

tppubtype = {techreport}

}

@article{nokey,

title = {EU copyright law round up \textendash 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 = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Media Concentration Law: Gaps and Promises in the Digital Age},

author = {Seipp, T.},

doi = {10.17645/mac.v11i2.6393},

year  = {2023},

date = {2023-06-30},

urldate = {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\textemdashspecifically the Digital Services Act, the Digital Markets Act, and the European Media Freedom Act\textemdashreflects 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 = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Opinie: Internetproletari\"{e}rs aller landen verenigt u!},

author = {Dommering, E.},

url = {https://www.ivir.nl/opinie_dommering_mediaforum-2023-3/},

year  = {2023},

date = {2023-06-30},

journal = {Mediaforum},

issue = {3},

pages = {85},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Beyond financial regulation of crypto-asset wallet software: In search of secondary liability},

author = {Barbereau, T. and Bod\'{o}, B.},

url = {https://www.sciencedirect.com/science/article/pii/S0267364923000390},

doi = {10.1016/j.clsr.2023.105829},

year  = {2023},

date = {2023-06-22},

urldate = {2023-06-22},

journal = {Computer Law \& Security Review},

volume = {49},

number = {105829},

abstract = {Since Bitcoin, the blockchain space considerably evolved. One crucial piece of software to interact with blockchains and hold private-public key pairs to distinct crypto-assets and securities are wallets. Wallet software can be offered by liable third-parties (‘custodians’) who hold certain rights over assets and transactions. As parties subject to financial regulation, they are to uphold Anti-money Laundering and Combating the Financing of Terrorist (AML/CFT) standards by undertaking Know-Your-Customer (KYC) checks on users of their services.

In juxtaposition, wallet software can also be issued without the involvement of a liable third-party. As no KYC is performed and users have full ‘freedom to act’, such ‘non-custodial’ wallet software is popular in criminal undertakings. They are required to interact with peer-to-peer applications and organisations running on blockchains whose benefits are not the subject of this paper. To date, financial regulation fails to adequately address such wallet software because it presumes the existence of a registered, liable entity offering said software. As illustrated in the case of Tornado Cash, financial regulation fails to trace chains of secondary liability. Alas, the considered solution is a systematic surveillance of all transactions.

Against this backdrop, this paper sets forth an alternative approach rooted in copyright law. Concepts that pertain to secondary liability prove of value to develop a flexible, principles-based approach to the regulation of non-custodial wallet software that accounts for both, infringing and non-infringing uses.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Leg het me nog \'{e}\'{e}n keer uit: het recht op een uitleg na Uber en Ola. Annotatie bij Hof Amsterdam, 4 april 2023},

author = {Metiko\v{s}, L.},

url = {https://www.ivir.nl/pi_2023/},

year  = {2023},

date = {2023-06-15},

journal = {Privacy \& Informatie},

issue = {3},

pages = {114-116},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@online{nokey,

title = {Dealing with opinion power and media concentration in the platform era},

author = {Seipp, T.},

url = {https://blogs.lse.ac.uk/medialse/2023/05/15/dealing-with-opinion-power-and-media-concentration-in-the-platform-era/},

year  = {2023},

date = {2023-06-15},

keywords = {},

pubstate = {published},

tppubtype = {online}

}

@article{nokey,

title = {Improving Data Access for Researchers in the Digital Services Act},

author = {Dergacheva, D. and Katzenbach, C. and Schwemer, S. and Quintais, J.},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4465846},

year  = {2023},

date = {2023-06-01},

abstract = {Joint submission in response to the Call for Evidence on the Delegated Regulation on data access provided for in the Digital Services Act (DSA). Article 40 DSA is a crucial provision to operationalize the regulation’s risk mitigation provisions vis-a-vis very large online platforms (VLOPs) and very large search engines (VLOSEs). In essence, Article 40 DSA enables data access to Digital Services Coordinators (DSCs) or the Commission, “vetted researchers” and other researchers, provided certain conditions are met. Our submission is predominantly concerned with the data access for vetted researchers and researchers in relation to VLOPs.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Niet Bern maar Brussel: assimilatie en reciprociteit tussen RAAP en VITRA},

author = {van Eechoud, M.},

url = {https://www.ivir.nl/auteursrecht_2023_2/},

year  = {2023},

date = {2023-05-23},

journal = {Auteursrecht},

issue = {2},

pages = {67-76},

abstract = {De vraag hoe traditionele reciprociteitsbepalingen uit het internationale auteursrecht uitgelegd moeten worden in het licht van EU recht treedt bij vlagen op de voorgrond. Nadat het HvJ EU met het RAAP/PPI-arrest een golf van onrust door het muzieklandschap veroorzaakte, krijgt het binnenkort de gelegenheid om zich uit te spreken over reciprociteit bij vormgeving. De Hoge Raad gaat in het geschil Kwantum/Vitra Collections prejudici\"{e}le vragen stellen. Mogen lidstaten artikel 2(7) van de Berner Conventie op eigen houtje toepassen, of is het deels of geheel aan de EU om te bepalen of werken van toegepaste kunst van buiten de EU gelijke behandeling verdienen? Deze bijdrage beziet die vraag vanuit het perspectief van intellectuele eigendom als fundamenteel recht, de uitdijende bevoegdheid van de EU en in het licht van aankomende wijzigingen in het Europese modellenrecht.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {The right to encryption: Privacy as preventing unlawful access},

author = {van Daalen, O.},

url = {https://www.sciencedirect.com/science/article/pii/S0267364923000146},

doi = {10.1016/j.clsr.2023.105804},

year  = {2023},

date = {2023-05-23},

journal = {Computer Law \& Security Review},

volume = {49},

abstract = {Encryption technologies are a fundamental building block of modern digital infrastructure, but plans to curb these technologies continue to spring up. Even in the European Union, where their application is by now firmly embedded in legislation, lawmakers are again calling for measures which would impact these technologies. One of the most important arguments in this debate are human rights, most notably the rights to privacy and to freedom of expression. And although some authors have in the past explored how encryption technologies support human rights, this connection is not yet firmly grounded in an analysis of European human rights case law. This contribution aims to fill this gap, developing a framework for assessing restrictions of encryption technologies under the rights to privacy and freedom of expression as protected under the European Convention of Human Rights (the Convention) and the Charter of Fundamental rights in the European Union (the Charter). In the first section, the relevant function of encryption technologies, restricting access to information (called confidentiality), is discussed. In the second section, an overview of some governmental policies and practices impacting these technologies is provided. This continues with a discussion of the case law on the rights to privacy, data protection and freedom of expression, arguing that these rights are not only about ensuring lawful access by governments to protected information, but also about preventing unlawful access by others. And because encryption technologies are an important technology to reduce the risk of this unlawful access, it is then proposed that this risk is central to the assessment of governance measures in the field of encryption technologies. The article concludes by recommending that states perform an in-depth assessement of this when proposing new measures, and that courts when reviewing them also place the risk of unlawful access central to the analysis of interference and proportionality.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Generative AI, Copyright and the AI Act},

author = {Quintais, J.},

url = {https://copyrightblog.kluweriplaw.com/2023/05/09/generative-ai-copyright-and-the-ai-act/},

year  = {2023},

date = {2023-05-09},

journal = {Kluwer Copyright Blog},

abstract = {Generative AI is one of the hot topics in copyright law today. In the EU, a crucial legal issue is whether using in-copyright works to train generative AI models is copyright infringement or falls under existing text and data mining (TDM) exceptions in the Copyright in Digital Single Market (CDSM) Directive. In particular, Article 4 CDSM Directive contains a so-called “commercial” TDM exception, which provides an “opt-out” mechanism for rights holders. This opt-out can be exercised for instance via technological tools but relies significantly on the public availability of training datasets. This has led to increasing calls for transparency requirements. In response to these calls, the European Parliament is considering adding to its compromise version of the AI Act two specific obligations with copyright implications on providers of generative AI models: on (1) transparency and disclosure; and (2) on safeguards for AI-generated content moderation. There is room for improvement on both. 

},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@online{nokey,

title = {A Primer and FAQ on Copyright Law and Generative AI for News Media},

author = {Quintais, J. and Diakopoulos, N.},

url = {https://generative-ai-newsroom.com/a-primer-and-faq-on-copyright-law-and-generative-ai-for-news-media-f1349f514883},

year  = {2023},

date = {2023-04-26},

keywords = {},

pubstate = {published},

tppubtype = {online}

}

@article{nokey,

title = {Outsourcing Human Rights Obligations and Concealing Human Rights Deficits: The Example of Monetizing User-Generated Content Under the CDSM Directive and the Digital Services Act},

author = {Senftleben, M. and Quintais, J. and Meiring, A.},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4421150},

year  = {2023},

date = {2023-04-26},

abstract = {With the shift from the traditional safe harbor for hosting to statutory content filtering and licensing obligations, EU copyright law has substantially curtailed the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms and the creative industry to take into account human rights when coordinating their content filtering actions. Platforms must also establish complaint and redress procedures for users. The European Commission will initiate stakeholder dialogues to identify best practices. These “safety valves” in the legislative package, however, are mere fig leaves. Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of policing content moderation systems is imposed on users who are unlikely to bring complaints in each individual case. The new legislative design in the EU will thus “conceal” human rights violations instead of bringing them to light. Nonetheless, the DSA rests on the same \textendash highly problematic \textendash approach.



Against this background, the paper discusses the weakening \textendash and potential loss \textendash of fundamental freedoms as a result of the departure from the traditional notice-and-takedown approach. Adding a new element to the ongoing debate on content licensing and filtering, the analysis will devote particular attention to the fact that EU law, for the most part, has left untouched the private power of platforms to determine the “house rules” governing the most popular copyright-owner reaction to detected matches between protected works and content uploads: the (algorithmic) monetization of that content. Addressing the “legal vacuum” in the field of content monetization, the analysis explores outsourcing and concealment risks in this unregulated space. Focusing on large-scale platforms for user-generated content, such as YouTube, Instagram and TikTok, two normative problems come to the fore: (1) the fact that rightholders, when opting for monetization, de facto monetize not only their own rights but also the creative input of users; (2) the fact that user creativity remains unremunerated as long as the monetization option is only available to rightholders. As a result of this configuration, the monetization mechanism disregards users’ right to (intellectual) property and discriminates against user creativity. Against this background, we discuss whether the DSA provisions that seek to ensure transparency of content moderation actions and terms and conditions offer useful sources of information that could empower users. Moreover, we raise the question whether the detailed regulation of platform actions in the DSA may resolve the described human rights dilemmas to some extent.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Annotatie bij Rechtbank Noord-Holland 28 december 2022 (Hendriks/Unibail Rodamco Nederland Winkels B.V.)},

author = {Hins, A.},

url = {https://www.ivir.nl/annotatie_mediaforum_2023_nr4/},

year  = {2023},

date = {2023-04-25},

journal = {Mediaforum},

number = {4},

issue = {1},

pages = {49-51},

abstract = {De professionele nieuwsfotograaf Hendriks wil foto's maken in een groot winkelcentrum, maar krijgt daarvoor geen toestemming van de exploitant Unibail Rodamco. Hendriks vordert bij de rechtbank een verklaring voor recht dat het weigeren van de toestemming onrechtmatig is. De rechtbank wijst de vordering af omdat Hendriks nog wel foto's mag maken met niet-professionele apparatuur, zoals een mobiele telefoon. In de annotatie wordt ingegaan op de horizontale werking van artikel 10 EVRM en de botsing van diverse grondrechten: de vrijheid van nieuwsgaring, het recht op eigendom, de vrijheid van onderneming en het recht op privacy.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@book{nokey,

title = {Freedom of Expression, the Media and Journalists: Case-law of the European Court of Human Rights},

author = {McGonagle, T. and Voorhoof, D.},

url = {https://rm.coe.int/iris-themes-vol-iii-8th-edition-april-2023-/1680ab1d11},

isbn = {9789287184351},

year  = {2023},

date = {2023-04-24},

urldate = {2023-04-24},

volume = {III},

publisher = {IRIS Themes, vol. III, European Audiovisual Observatory, Strasbourg},

edition = {8th edition},

series = {IRIS Themes},

abstract = {This e-book provides valuable insights into the European Court of Human Rights’ extensive case-law on freedom of expression and media and journalistic freedoms. The first seven editions of the e-book (2013, 2015, 2016, 2017, 2020, 2021 and 2022) have proved hugely successful. The new seventh edition summarises over 378 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).},

keywords = {},

pubstate = {published},

tppubtype = {book}

}

@techreport{nokey,

title = {Fundamental rights assessment of the framework for detection orders under the CSAM proposal},

author = {van Daalen, O.},

url = {https://www.ivir.nl/csamreport/},

year  = {2023},

date = {2023-04-22},

keywords = {},

pubstate = {published},

tppubtype = {techreport}

}

@article{nokey,

title = {Shielding citizens? Understanding the impact of political advertisement transparency information},

author = {Dobber, T. and Kruikemeier, S. and Helberger, N. and Goodman, E.},

doi = {10.1177/14614448231157640},

year  = {2023},

date = {2023-04-21},

journal = {New Media \& Society},

abstract = {Online targeted advertising leverages an information asymmetry between the advertiser and the recipient. Policymakers in the European Union and the United States aim to decrease this asymmetry by requiring information transparency information alongside political advertisements, in the hope of activating citizens’ persuasion knowledge. However, the proposed regulations all present different directions with regard to the required content of transparency information. Consequently, not all proposed interventions will be (equally) effective. Moreover, there is a chance that transparent information has additional consequences, such as increasing privacy concerns or decreasing advertising effectiveness. Using an online experiment (N = 1331), this study addresses these challenges and finds that two regulatory interventions (DSA and HAA) increase persuasion knowledge, while the chance of raising privacy concerns or lowering advertisement effectiveness is present but slim. Results suggest transparency information interventions have some promise, but at the same time underline the limitations of user-facing transparency interventions.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {Export control of cybersurveillance items in the new dual-use regulation: The challenges of applying human rights logic to export control},

author = {van Daalen, O. and van Hoboken, J. and Rucz, M.},

doi = {10.1016/j.clsr.2022.105789},

year  = {2023},

date = {2023-04-21},

journal = {Computer Law \& Security Review},

volume = {48},

abstract = {In 2021, the Recast Dual-Use Regulation entered into force. The regulation includes a heavily debated new provision on the export control of so-called cybersurveillance items. This provision departs from the traditional logic of export control rules in multiple ways. Most importantly, it positions human rights considerations as an important factor in the export control of a flexible range of technologies. This article explores the operation, implications and challenges of this new human rights-orientated approach to export control of digital surveillance technologies. Taking the definition of cybersurveillance items as a starting point of the analysis, the article draws on surveillance-related case law of the European Court of Human Rights and the Court of Justice of the European Union, to define the potential scope of application of the open-ended cybersurveillance concept of the Regulation. By exploring how this concept maps to technologies often connected with human rights infringements, such as facial recognition, location tracking and open-source intelligence, the article highlights the challenges of applying this new approach and underscores the need for its further development in practice.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@phdthesis{nokey,

title = {Money after money: Disassembling value/information infrastructures},

author = {Ferrari, V.},

url = {https://dare.uva.nl/search?identifier=30904422-2233-4400-bc5f-e7971b33f758},

year  = {2023},

date = {2023-04-21},

abstract = {This manuscript is a journey through coexisting, emerging or speculated about, types of digital value transfer infrastructures. Using digital value transfer infrastructures as a central case study, this thesis is concerned with unpacking the negotiation processes that shape the governance, design and political purposes of digital infrastructures that are closely linked to the public interest and state sovereignty. In particular, the papers that are assembled in this manuscript identify and inspect three main socio-technical developments occurring in the domain of value transfer technologies: a) the privatization and platformization of digital payment infrastructures; b) the spread of blockchain-based digital value transfer infrastructures; c) the construction of digital value transfer infrastructures as public utilities, from the part of public institutions or organizations. Concerned with the relationship between law, discourse and technological development, the thesis explores four transversal issues that strike differences and peculiarities of these three scenarios: i) privacy; ii) the synergy and mutual influence of legal change and technological development in the construction of digital infrastructures; iii) the role of socio-technical imaginaries in policy-making concerned with digital infrastructures; iv) the geography and scale of digital infrastructures. The analyses lead to the argument that, in the co-development of legal systems and digital infrastructures that are core to public life, conflicts are productive. Negotiations, ruptures and exceptions are constitutive of the unending process of mutual reinforcement, and mutual containment, in which a plurality of agencies \textendash expressed through legal institutions, symbolic systems, as well as information and media structures - are entangled.},

keywords = {},

pubstate = {published},

tppubtype = {phdthesis}

}

@phdthesis{nokey,

title = {Seeing what others are seeing: Studies in the regulation of transparency for social media recommender systems},

author = {Leerssen, P.},

url = {https://dare.uva.nl/search?identifier=18c6e9a0-1530-4e70-b9a6-35fb37873d13},

year  = {2023},

date = {2023-04-21},

abstract = {This dissertation asks how the law can shed light on social media recommender systems: the algorithmic tools which platforms use to rank and curate online content. Recommender systems fulfil an important gatekeeping function in social media governance, but their actions are poorly understood. Legal reforms are now underway in EU law to impose transparency rules on social media recommenders, and the goal of this dissertation is to interrogate the accountability relations implied by this regulatory project. What kinds of information is the law demanding about social media recommender systems? Who is included in these new models of accountability, and who is excluded?

This dissertation critiques a dominant paradigm in recent law and policy focused on algorithmic explanations. Building on insights from critical transparency studies and algorithm studies, it argues that disclosure regulation should move from algorithmic transparency toward platform observability: approaching recommenders not as discrete algorithmic artifacts but as complex sociotechnical systems shaped in important ways by their users and operators. Before any attempt to ‘open the black box’ of algorithmic machine learning, therefore, regulating for observability invites us to ask how recommenders find uptake in practice; to demand basic data on recommender inputs, outputs and interventions; to ask what is being recommend, sooner than why.

Several avenues for observability regulation are explored, including platform ad archives; notices for visibility restrictions (or ‘shadow bans’); and researcher APIs. Through solutions such as these, which render visible recommender outcomes, this dissertation outlines a vision for a more democratic media governance\textemdashone which supports informed and inclusive deliberation about, across and within social media’s personalised publics.},

keywords = {},

pubstate = {published},

tppubtype = {phdthesis}

}

@article{nokey,

title = {Annotatie bij Hoge Raad 18 oktober 2022 (Chohan)},

author = {Dommering, E.},

url = {https://www.ivir.nl/annotatie_nj_2023_118/},

year  = {2023},

date = {2023-04-20},

journal = {Nederlandse Jurisprudentie},

number = {118},

issue = {12},

pages = {2088-2090},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {EU copyright law round up \textendash first trimester of 2023},

author = {Trapova, A. and Quintais, J.},

url = {https://copyrightblog.kluweriplaw.com/2023/04/13/eu-copyright-law-round-up-first-trimester-of-2023/},

year  = {2023},

date = {2023-04-13},

journal = {Kluwer Copyright Blog},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@article{nokey,

title = {An end to shadow banning? Transparency rights in the Digital Services Act between content moderation and curation},

author = {Leerssen, P.},

url = {https://www.ivir.nl/endtoshadowbanning/},

doi = {10.1016/j.clsr.2023.105790},

year  = {2023},

date = {2023-04-11},

urldate = {2023-04-11},

journal = {Computer Law \& Security Review},

volume = {48},

abstract = {This paper offers a legal perspective on the phenomenon of shadow banning: content moderation sanctions which are undetectable to those affected. Drawing on recent social science research, it connects current concerns about shadow banning to novel visibility management techniques in content moderation, such as delisting and demotion. Conventional moderation techniques such as outright content removal or account suspension can be observed by those affected, but these new visibility often cannot. This lends newfound significance to the legal question of moderation transparency rights. The EU Digital Services Act (DSA) is analysed in this light, as the first major legislation to regulate transparency of visibility remedies. In effect, its due process framework prohibits shadow banning with only limited exceptions. In doing so, the DSA surfaces tensions between two competing models for content moderation: as rule-bound administration or as adversarial security conflict. I discuss possible interpretations and trade-offs for this regime, and then turn to a more fundamental problem: how to define visibility reduction as a category of content moderation actions. The concept of visibility reduction or ‘demotions’ is central to both the shadow banning imaginary and to the DSA's safeguards, but its meaning is far from straightforward. Responding to claims that demotion is entirely relative, and therefore not actionable as a category of content moderation sanctions, I show how visibility reduction can still be regulated when defined as ex post adjustments to engagement-based relevance scores. Still, regulating demotion in this way will not cover all exercises of ranking power, since it manifests not only in individual cases of moderation but also through structural acts of content curation; not just by reducing visibility, but by producing visibility.},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@techreport{nokey,

title = {Copyright Content Moderation in the EU: Conclusions and Recommendations},

author = {Quintais, J. and Katzenbach, C. and Schwemer, S. and Dergacheva, D. and Riis, T. and Mezei, P. and Harkai, I.},

url = {https://www.ivir.nl/ssrn-id4403423/

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4403423\&s=09},

year  = {2023},

date = {2023-03-30},

abstract = {This report is a deliverable in the reCreating Europe project. The report describes and summarizes the results of our research on the mapping of the EU legal framework and intermediaries’ practices on copyright content moderation and removal. In particular, this report summarizes the results of our previous deliverables and tasks, namely: (1) our Final Report on mapping of EU legal framework and intermediaries’ practices on copyright content moderation and removal; and (2) our Final Evaluation and Measuring Report - impact of moderation practices and technologies on access and diversity.

Our previous reports contain a detailed description of the legal and empirical methodology underpinning our research and findings. This report focuses on bringing together these findings in a concise format and advancing policy recommendations. },

keywords = {},

pubstate = {published},

tppubtype = {techreport}

}

@article{nokey,

title = {Annotatie bij Hoge Raad 7 oktober 2022 (X / ROC-Nijmegen)},

author = {Dommering, E.},

url = {https://www.ivir.nl/annotatie_mediaforum_2023_1/},

year  = {2023},

date = {2023-03-30},

journal = {Mediaforum},

number = {3},

issue = {1},

pages = {43-45},

keywords = {},

pubstate = {published},

tppubtype = {article}

}

@online{Irion2023,

title = {Privacy Peg, Trade Hole: Why We (Still) Shouldn’t Put Data Privacy in Trade Law},

author = {Irion, K. and Kaminski, M. and Yakovleva, S.},

url = {https://lawreviewblog.uchicago.edu/2023/03/27/irion-kaminski-yakovleva/},

year  = {2023},

date = {2023-03-28},

urldate = {2023-03-28},

abstract = {A Response to Profs. Anupam Chander \& Paul Schwartz’s Privacy and/or Trade.



Some principles are not well suited for negotiation through the international trade regime. Or rather, the international trade regime has never been the right forum for negotiating or enforcing human rights. The World Trade Organization’s (WTO’s) current approach to data privacy law both instantiates and illustrates this: it brackets data privacy as something trade law cannot well address, while illustrating the ways in which trade law superimposes its prioritization of trade liberalization atop other public values. Trade’s core framing prioritizes economic over human rights values. Beyond ensuring non-discriminatory treatment, trade law remains, in our view, the wrong place for both defining and enforcing rules on cross-border flows of personal data. Thus, while we welcome with open arms the thoughtful attention Professors Anupam Chander and Paul Schwartz pay to the current transnational struggle over data flows and digital trade, we cannot join in their optimism that trade law is the right forum for arbitrating it. },

howpublished = {University of Chicago Law Review Online, 27 March 2023},

keywords = {},

pubstate = {published},

tppubtype = {online}

}

@inbook{nokey,

title = {Remuneration rights and national treatment},

author = {Hugenholtz, P.},

url = {https://www.ivir.nl/frankel_chapter-33/},

doi = {10.4337/9781035310869.00050},

year  = {2023},

date = {2023-03-28},

urldate = {2023-03-28},

booktitle = {Improving Intellectual Property: A Global Project, S. Frankel, M. Chon, G. Dinwoodie, B. Lauriat, J. Schovsbo (ed.), Edward Elgar Publishing},

pages = {341-352},

chapter = {33},

keywords = {},

pubstate = {published},

tppubtype = {inbook}

}

@inbook{nokey,

title = {FAIR, FRAND and open - The institutionalization of research data sharing under the EU data strategy},

author = {van Eechoud, M.},

doi = {10.4337/9781035310869.00047},

year  = {2023},

date = {2023-03-28},

urldate = {2023-03-28},

booktitle = {Improving Intellectual Property: A Global Project, S. Frankel, M. Chon, G. Dinwoodie, B. Lauriat, J. Schovsbo (ed.), Edward Elgar Publishing},

pages = {319-329},

chapter = {31},

keywords = {},

pubstate = {published},

tppubtype = {inbook}

}

@inbook{nokey,

title = {Expressive genericity revisited: What EU policymakers can learn from Rochelle Dreyfuss},

author = {Senftleben, M.},

url = {https://www.ivir.nl/expressive_genericity_revisited/},

doi = {10.4337/9781035310869.00039},

year  = {2023},

date = {2023-03-28},

urldate = {2023-03-28},

booktitle = {Improving Intellectual Property: A Global Project, S. Frankel, M. Chon, G. Dinwoodie, B. Lauriat, J. Schovsbo (ed.), Edward Elgar Publishing, 2023},

pages = {246-257},

chapter = {24},

keywords = {},

pubstate = {published},

tppubtype = {inbook}

}

@techreport{nokey,

title = {Impact of content moderation practices and technologies on access and diversity},

author = {Schwemer, S. and Katzenbach, C. and Dergacheva, D. and Riis, T. and Quintais, J.},

url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4380345},

year  = {2023},

date = {2023-03-23},

abstract = {This Report presents the results of research carried out as part of Work Package 6 “Intermediaries: Copyright Content Moderation and Removal at Scale in the Digital Single Market: What Impact on Access to Culture?” of the project “ReCreating Europe”, particularly on Tasks 6.3 (Evaluating Legal Frameworks on the Different Levels (EU vs. national, public vs. private) and 6.4 (Measuring the impact of moderation practices and technologies on access and diversity). This work centers on a normative analysis of the existing public and private legal frameworks with regard to intermediaries and cultural diversity, and on the actual impact on intermediaries’ content moderation on diversity.},

note = {D.6.3 Final Evaluation and Measuring Report},

keywords = {},

pubstate = {published},

tppubtype = {techreport}

}