- VMC Studiemiddag: Een referendum over de sleepwet? ‘Stemt u “ja” of “nee” vóór veiligheid?’
- The Recommendation on Measures to Safeguard Fundamental Rights and the Open Internet in the Framework of the EU Copyright Reform
- ‘Het referendum verstoort de toetsing van de sleepwet’: Opinie van Eijk & Dommering
Archives across the Netherlands are tasked to make their archives accessible online. However, progress has been slow, not least because it is difficult to determine who owns the rights to make works available online. Focusing on the Dutch public service radio and TV broadcasting sectors, this book addresses this challenge. First, it disentangles the nature of broadcasts by providing guidance on which aspects of a TV or radio broadcast can attract protection and who owns these. Secondly, it empirically establishes that the default ownership rules can only provide an incomplete picture of the rights ownership in the public service broadcasting sector: the ownership is more concentrated than copyright and neighbouring rights law suggests. Who owns the broadcasting archives? shows how different legal scenarios can explain this rights concentration and establishes their likely practical influence on industry practice in the public service broadcasting sector across time.
In: Verandering van Koers, H.A. Groen c.s. red., Uitgeverij Datawyse 2017, ISBN 9789462957404, p. 13-20.
Is een 'dynamisch' IP adres een persoonsgegeven? Verzoek om een prejudiciële beslissing ingediend door het Bundesgerichtshof (hoogste federale rechter in burgerlijke en strafzaken, Duitsland) bij beslissing van 28 oktober 2014. Verwerking van persoonsgegevens. Begrip, persoonsgegevens’. Internetprotocoladressen. Bewaring door een aanbieder van onlinemediadiensten. Nationale regeling volgens welke geen rekening kan worden gehouden met het gerechtvaardigde belang van de voor de verwerking verantwoordelijke persoon.
This article discusses ways in which the General Agreement on Trade in Services (GATS) and post-GATS free trade agreements may limit the EU's ability to regulate privacy and personal data protection as fundamental rights. After discussing this issue in two dimensions – the vertical relationship between trade and national and European Union (EU) law, and the horizontal relationship between trade and human rights law – the author concludes that these limits are real and pose serious risks. Inspired by recent developments in safeguarding labour, and environmental standards and sustainable development, the article argues that privacy and personal data protection should be part of, and protected by, international trade deals made by the EU. The EU should negotiate future international trade agreements with the objective of allowing them to reflect the normative foundations of privacy and personal data protection. This article suggests a specific way to achieve this objective.
More and more news is personalised, based on our personal data and interests. As a result, the focus of media regulation moves from the news producer to the news recipient. This research asks what the fundamental right to receive information means for personalised news consumers and the obligation it imposes on states. However, the right to receive information is under-theorised. Therefore, we develop a framework to understand this right, starting from case law of the European Court of Human Rights. On this basis, we identify five perspectives on the right to receive information: political debate, truth finding, social cohesion, avoidance of censorship and self-development. We evaluate how news personalisation affects the right to receive information, considering these five different perspectives. Our research reveals important policy choices that must be made regarding personalised news considering news consumers’ rights.
Millions of European internet users access online platforms where their personal data is being collected, processed, analysed or sold. The existence of some of the largest online platforms is entirely based on data driven business models. In the European Union, the protection of personal data is considered a fundamental right. Under Article 8(3) of the EU Charter of Fundamental Rights, compliance with data protection rules should be subject to control by an independent authority. In the EU, enforcement of privacy rules almost solely takes place by the national data protection authorities. They typically apply sector-specific rules, based on the EU Data Protection Directive. In the United States, the Federal Trade Commission is the primary enforcer of consumers’ (online) privacy interests. The agency’s competence is not based on the protection of fundamental rights, but on the basis that maintenance of a competitive, fair marketplace will provide the right choices for consumers to take. In this Article the US legal framework will be discussed and compared to the EU legal framework, which forms our finding that in the EU rules on unfair commercial practices could be enforced in a similar manner to protect people’s privacy. In the EU, the many frictions concerning the market/consumer-oriented use of personal data form a good reason to actually deal with these frictions in a market/consumer legal framework.
On the internet, we encounter take-it-or-leave-it choices regarding our privacy on a daily basis. In Europe, online tracking for targeted advertising generally requires the internet users’ consent to be lawful. Some websites use a tracking wall, a barrier that visitors can only pass if they consent to tracking by third parties. When confronted with such a tracking wall, many people click ‘I agree’ to tracking. A survey that we conducted shows that most people find tracking walls unfair and unacceptable. We analyse under which conditions the ePrivacy Directive and the General Data Protection Regulation allow tracking walls. We provide a list of circumstances to assess when a tracking wall makes consent invalid. We also explore how the EU lawmaker could regulate tracking walls, for instance in the ePrivacy Regulation. It should be seriously considered to ban tracking walls, at least in certain circumstances.
Proceedings of the conference 'Better regulation for copyright: academics meet policy makers', Brussels: University of Southampton & The Greems/EFA in the European Parliament, 6 September 2017, p. 11-16.
ALAI Congress 2017 in Copenhagen, Copyright, to be or not to be
Het is alweer zes jaar geleden dat de laatste kroniek over het Nederlands auteursrecht in Auteurs & Media is gepubliceerd(1). Hoog tijd dus om de draad op te pakken en de stok van mijn illustere voorganger over te nemen. Deze kroniek bespreekt de belangrijkste ontwikkelingen op het gebied van auteursrechtwetgeving en -beleid in Nederland in de afgelopen zes jaren, waaronder de introductie van het auteurscontractenrecht, de afschaffing van geschriftenbescherming, de versterking van het toezicht op collectieve beheersorganisaties en de implementatie van de Richtlijnen 2012/28/EU (verweesde werken) en 2011/77/EU (verlenging beschermingsduur naburige rechten). Door deze nieuwe wetgeving is de Nederlandse Auteurswet (Aw) en Wet op de naburige rechten (Wnr) op diverse plaatsen aangepast.
Kluwer Copyright Blog
On 7 September 2017, AG Szpunar delivered his opinion on Case C-265/16, VCAST. The case concerns the question of whether the private copying exception covers the services of an online platform that allows users to store copies of free-to-air TV programmes in private cloud storage spaces. AG Szpunar’s proposed answer was a mixed one: while cloud copying, in general, should be considered covered by the exception, the specific service offered by VCAST should not.
The dual purpose of this literature review is, first, to identify and summarise limitations that result from the use of copyright licences in a library context, and, second, to illustrate these limitations with specific examples available in both the academic and grey literature. The licences discussed in the reviewed literature deal essentially with access to, and use of, digital content.
Draft version. Final version published in Common Market Law Review, 2017, nr. 5, p. 1427-1466.
In modern markets, many companies offer so-called “free” services and monetize consumer data they collect through those services. This paper argues that consumer law and data protection law can usefully complement each other. Data protection law can also inform the interpretation of consumer law. Using consumer rights, consumers should be able to challenge excessive collection of their personal data. Consumer organizations have used consumer law to tackle data protection infringements. The interplay of data protection law and consumer protection law provides exciting opportunities for a more integrated vision on “data consumer law”.
Amsterdam / Hong Kong: IViR, 2017.
This report presents and draws on multidisciplinary insights into what characterises effective user control over the collection and use of personal data. User controls arise from the interplay of a number of conditions. These are partly technical but also connected to different aspects of user behaviour, the intricacies of design, as well as the internal and external incentives in privacy governance that exist today. Our review of the state of research underscores that devising effective user controls require close collaboration between different disciplines, clear regulatory guidance and scientifically-backed assessments.
The extent to which digital consumption of pirated materials displaces legitimate purchases is of fundamental importance for EU copyright policy design. The European Commission has commissioned Ecorys to carry out a study on the relation between online copyright infringement (digital piracy) and sales of copyrighted content. This study adds to the existing literature in at least three ways. Firstly, it compares piracy rates in multiple EU Member States calculated according to the same methodology. This makes it possible to compare results between countries. Secondly, displacement rates are estimated in the presence of an important recent phenomenon, i.e. the widespread availability of a wide variety of services for downloading or streaming content. Thirdly, the study includes minors to assess the extent of piracy among this group.
Under European data protection law, consent of the data subject is one of the six grounds for lawful processing of personal data. It is such an important ground that lawmakers considered it necessary to provide a legal definition of consent. One of the conditions under this definition is that it needs to be “freely given.” The General Data Protection Regulation (GDPR) 3 has further expanded on this concept in Article 7(4). It refers to a situation under which consent might not be considered “freely given.” If consent is invalid because it is not freely given, the processing is usually unlawful. Consequently, a legal basis for processing is missing. Therefore, this is an important provision. Yet the wording of this new provision is vague and its scope is unclear. Thus, the question arises as to how Article 7(4) should be applied. In this paper, the authors tease out the assessment criteria for the application of this provision on the basis of its text, structure and history. These criteria will then be applied to hypothetical cases in the final section.
In: Bulk Collection: Systematic Government Access to Private-Sector Data, ed. F.H. Cate & J.X. Dempsey, Oxford University Press, 2017, ISBN: 9780190685515.
There are many ways to approach the question of government access to private-sector data. Much of the recent public debate has focused on access in the context of national security and traditional law enforcement, with respect to both targeted and untargeted access to data collected and processed by third parties. As more and more data is collected and stored by the private sector (“big data”), the amount of data that can be retrieved by governments is steadily increasing. A new “third domain” has emerged, where data is used for social security and tax surveillance and other types of non- traditional law enforcement. The Digital Rights Ireland case is the point of departure of this chapter. Next, two recent judgments by national courts are described, in which national data retention rules were tested against the ruling in the Digital Rights Ireland case and the necessity of independent oversight was discussed in further detail. This chapter draws from a recent study by the Institute for Information Law (IViR) to formulate standards for independent oversight. These standards are based on a broader analysis of the relevant jurisprudence of the European Court of Justice— including the Digital Rights Ireland case— and of the European Court of Human Rights (ECtHR). The analysis is also based on selected studies, reports, resolutions, and recommendations.