IVIR - Universiteit van Amsterdam

@techreport{vanHoboken2020b,
title = {Het juridisch kader voor de verspreiding van desinformatie via internetdiensten en de regulering van politieke advertenties},
author = {van Hoboken, J. and Appelman, N. and Fahy, R. and Leerssen, P. and McGonagle, T. and van Eijk, N. and Helberger, N.},
url = {https://www.ivir.nl/publicaties/download/Rapport_desinformatie_december2019.pdf
https://www.ivir.nl/publicaties/download/Kamerbrief_desinformatie.pdf},
year = {2020},
date = {2020-05-14},
abstract = {Het onderzoek, uitgevoerd in opdracht van het Ministerie van Binnenlandse Zaken en Koninkrijksrelaties, analyseert het juridisch kader van toepassing op de verspreiding van desinformatie via online diensten. Het rapport biedt een uitgebreid overzicht van de relevante Europese en Nederlandse normen en doet aanbevelingen voor de verbetering van dit juridisch kader. Het onderzoek bevat daarnaast ook een analyse van het relevant wettelijke kader in de V.S., het V.K, Frankrijk, Duitsland, Canada en Zweden.
Het rapport maakt duidelijk hoe de vrijheid van meningsuiting als rode draad door het wettelijke kader loopt. Dit fundamentele recht vormt zowel de buitenste grens voor regulering als een basis voor nieuwe maatregelen, bijvoorbeeld voor de bescherming van pluralisme. Het wettelijk kader van toepassing op desinformatie blijkt zeer breed, bevat verschillende reguleringsniveaus, verschuift afhankelijk van de specifieke context en omvat vele al bestaande normen voor de regulering van specifieke typen desinformatie. Verder blijkt het toezicht op dit wettelijk kader vrij gefragmenteerd te zijn. Op basis van deze analyse komt het rapport tot aan aantal aanbevelingen. De aanbevelingen hebben onder andere betrekking op het gebruik van de term desinformatie als beleidsterm, het omgaan met de spanningen op de verschillende beleidsniveaus, de regulering van internettussenpersonen door middel van transparantie verplichtingen en de samenwerking tussen de verschillende toezichthouders.
Voorafgaand aan deze eindrapportage is in eind 2019 het interim-rapport gepubliceerd. Dit rapport focuste op de relatie tussen desinformatie en online politieke advertenties. Beide studies zijn onderdeel van het onderzoeksproject ‘Digital Transition of Decision-Making at the Faculty of Law of the University of Amsterdam’ dat zich buigt over vraagstukken gerelateerd aan kunstmatige intelligentie en publieke waarden, data governance, en online platforms. },
note = {Rapport voor het ministerie van Binnenlandse Zaken en Koninkrijksrelaties, Amsterdam, december 2019},
keywords = {},
pubstate = {published},
tppubtype = {techreport}
}

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Appelman, N., Fahy, R., Helberger, N., Leerssen, P., McGonagle, T., van Eijk, N., van Hoboken, J.

The legal framework on the dissemination of disinformation through Internet services and the regulation of political advertising

2020, (A report for the Ministry of the Interior and Kingdom Relations, Amsterdam, December 2019).

Abstract | Links | BibTeX

@techreport{vanHoboken2020c,
title = {The legal framework on the dissemination of disinformation through Internet services and the regulation of political advertising},
author = {van Hoboken, J. and Appelman, N. and Fahy, R. and Leerssen, P. and McGonagle, T. and van Eijk, N. and Helberger, N.},
url = {https://www.ivir.nl/publicaties/download/Report_Disinformation_Dec2019-1.pdf},
year = {2020},
date = {2020-05-14},
abstract = {The study, commissioned by the Dutch government, focusses on the legal framework governing the dissemination of disinformation, in particular through Internet services. The study provides an extensive overview of relevant European and Dutch legal norms relating to the spread of online disinformation, and recommendations are given on how to improve this framework. Additionally, the study includes an analysis of the relevant legal framework in 6 different countries (U.K., U.S., France, Germany, Sweden and Canada).
The report makes clear how the freedom of expression runs as a central theme through the legal framework, both forming the outer limit for possible regulation and a legal basis to create new regulation (e.g. protecting pluralism). The legal framework governing disinformation online is shown to be very broad, encompassing different levels of regulation, shifting depending on the context and already regulating many different types of disinformation. Further, oversight seems to be fragmented with many different supervisory authorities involved but limited cooperation. Based on this analysis, the report offers several recommendations, such as on the use of disinformation not as a legal term but a policy term, on negotiating the tensions on the different policy levels, on the regulation of internet intermediaries including transparency obligations and on increased cooperation between the relevant supervisory authorities.
Previously, the interim report focussing on political advertising was published in late 2019. Both these studies have been carried out in the context of the research initiative on the Digital Transition of Decision-Making at the Faculty of Law of the University of Amsterdam, focussing on questions related to AI and public values, data governance and online platforms.},
note = {A report for the Ministry of the Interior and Kingdom Relations, Amsterdam, December 2019},
keywords = {},
pubstate = {published},
tppubtype = {techreport}
}

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Senftleben, M.

Flexibility Grave – Partial Reproduction Focus and Closed System Fetishism in CJEU, Pelham

IIC, 2020.

Abstract | Links | BibTeX

McGonagle, T., Voorhoof, D.

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

2020, (IRIS Themes - Volume III (5th edition), European Audiovisual Observatory, Strasbourg).

Abstract | Links | BibTeX

Appelman, N., Bodó, B., Schwichow, H. von

Money talks? The impact of corporate funding on information law research

2020, (Amsterdam: IViR, Berlin: European Hub of the NoC).

Abstract | Links | BibTeX

@techreport{Bod\'{o}2020,
title = {Money talks? The impact of corporate funding on information law research},
author = {Bod\'{o}, B. and Schwichow, H. von and Appelman, N.},
url = {https://www.ivir.nl/publicaties/download/money-talks-summary-report-final.pdf},
year = {2020},
date = {2020-05-07},
abstract = {Corporate funding is a contentious issue in information law and policy research. In the fall of 2019, the Institute of Information Law at the University of Amsterdam, and the European Hub of the Network of Centers invited academic research institutions, as well as junior and senior scholars to reflect on the issues around corporate influence on research through money, data, infrastructure, access. The discussion arrived at a number of important conclusions:
- The discussion on funding must include data, infrastructure deals, and other forms of indirect funding
- Sometimes corporate funding is the only way to get access to critical resources
- Transparency is a must, but not a silver bullet to deal with funding
- It is difficult to set up universal a priori norms of which type of funding is acceptable in which situations,
- Academia may need new institutional solutions to review funding, and manage the potential risks of funders taking over the agenda, research bias, and reputational harms
- Public funding bodies are part of the problem as much of the solution.
The rapid, but consequential shifts in the digital landscape in terms of technological innovation, dominant economic actors, power relations, social, political structures, transform the environment of academic research which aims to address the legal and policy issues around those changes. More and more issues, such as content moderation, intermediary liability, digital advertising, algorithmic discrimination, the accountability of AI systems are framed as regulatory dilemmas. As a result, legal research is both in growing demand, and has gained visibility, and significance. As the future rules of the information society are shaping up in the discussions led, or at least prominently shaped by information law research, the temptation to influence it also increases. Research institutions must acknowledge the shifting landscape and the growing stakes. Challenges at that scale require more than individual integrity: there is a need for institutional solutions that on the one hand can actively assess, and mitigate the potential harms in each individual case, and on the other hand, is able to actively shape the funding landscape, and the norms around funding.},
note = {Amsterdam: IViR, Berlin: European Hub of the NoC},
keywords = {},
pubstate = {published},
tppubtype = {techreport}
}

Close

Corporate funding is a contentious issue in information law and policy research. In the fall of 2019, the Institute of Information Law at the University of Amsterdam, and the European Hub of the Network of Centers invited academic research institutions, as well as junior and senior scholars to reflect on the issues around corporate influence on research through money, data, infrastructure, access. The discussion arrived at a number of important conclusions:
- The discussion on funding must include data, infrastructure deals, and other forms of indirect funding
- Sometimes corporate funding is the only way to get access to critical resources
- Transparency is a must, but not a silver bullet to deal with funding
- It is difficult to set up universal a priori norms of which type of funding is acceptable in which situations,
- Academia may need new institutional solutions to review funding, and manage the potential risks of funders taking over the agenda, research bias, and reputational harms
- Public funding bodies are part of the problem as much of the solution.
The rapid, but consequential shifts in the digital landscape in terms of technological innovation, dominant economic actors, power relations, social, political structures, transform the environment of academic research which aims to address the legal and policy issues around those changes. More and more issues, such as content moderation, intermediary liability, digital advertising, algorithmic discrimination, the accountability of AI systems are framed as regulatory dilemmas. As a result, legal research is both in growing demand, and has gained visibility, and significance. As the future rules of the information society are shaping up in the discussions led, or at least prominently shaped by information law research, the temptation to influence it also increases. Research institutions must acknowledge the shifting landscape and the growing stakes. Challenges at that scale require more than individual integrity: there is a need for institutional solutions that on the one hand can actively assess, and mitigate the potential harms in each individual case, and on the other hand, is able to actively shape the funding landscape, and the norms around funding.

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Helberger, N.

Statement Prof. Dr. Natali Helberger bij Rondetafelgesprek over de Corona-app in de Tweede Kamer op 22 April 2020

2020.

Links | BibTeX

Carroll, M., Flynn, S., Geiger, C., Guibault, L., Margoni, T., Quintais, J., Sag, M.

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for International Action

European Intellectual Property Review, 2020 (7), Forthcoming.

Abstract | Links | BibTeX

Flynn, S., Geiger, C., Quintais, J.

Implementing User Rights for Research in the Field of Artificial Intelligence: A Call for Action at International Level

Kluwer Copyright Blog, 2020.

Abstract | Links | BibTeX

Senftleben, M.

From Flexible Balancing Tool to Quasi-Constitutional Straitjacket - How the EU Cultivates the Constraining Function of the Three-Step Test

2020, (Chapter in T. Mylly/J. Griffiths (eds.), The Transformation of Global Intellectual Property Protection, Oxford: Oxford University Press 2020, forthcoming.).

Abstract | Links | BibTeX

@inbook{Senftleben2020b,
title = {From Flexible Balancing Tool to Quasi-Constitutional Straitjacket - How the EU Cultivates the Constraining Function of the Three-Step Test},
author = {Senftleben, M.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3576019},
year = {2020},
date = {2020-04-16},
abstract = {In the international intellectual property (IP) arena, the so-called “three-step test” regulates the room for the adoption of limitations and exceptions (L&Es) to exclusive rights across different fields of IP. Given the openness of the individual test criteria, it is tempting for proponents of strong IP protection to strive for the fixation of the meaning of the three-step test at the constraining end of the spectrum of possible interpretations. As the three-step test lies at the core of legislative initiatives to balance exclusive rights and user freedoms, the cultivation of the test’s constraining function and the suppression of the test’s enabling function has the potential to transform the three-step test into a bulwark against limitations of IP protection.

The EU is at the forefront of a constraining use and interpretation of the three-step test in the field of copyright law. The configuration of the legal framework in the EU is worrisome because it obliges judges to apply the three-step test as an additional control instrument. It is not sufficient that an individual use falls within the scope of a statutory copyright limitation that explicitly permits this type of use without prior authorization. In addition, judges applying the three-step test also examine whether the specific form of use at issue complies with each individual criterion of the three-step test. Hence, the test serves as an instrument to further restrict L&Es that have already been defined precisely in statutory law. Not surprisingly, decisions from courts in the EU have a tendency of shedding light on the constraining aspect of the three-step test and, therefore, reinforcing the hegemony of copyright holders in the IP arena.

The hypothesis underlying the following examination, therefore, is that the EU approach to the three-step test is one-sided in the sense that it only demonstrates the potential of the test to set additional limits to L&Es. The analysis focuses on this transformation of a flexible international balancing tool into a powerful confirmation and fortification of IP protection. For this purpose, the two facets of the international three-step test \textendash its enabling and constraining function \textendash are explored before embarking on a discussion of case law that evolved under the one-sided EU approach. Analyzing repercussions on international lawmaking, it will become apparent that the EU approach already impacted the further development of international L&Es. Certain features of the Marrakesh Treaty clearly reflect the restrictive EU approach.},
note = {Chapter in T. Mylly/J. Griffiths (eds.), The Transformation of Global Intellectual Property Protection, Oxford: Oxford University Press 2020, forthcoming.},
keywords = {},
pubstate = {published},
tppubtype = {inbook}
}

Close

In the international intellectual property (IP) arena, the so-called “three-step test” regulates the room for the adoption of limitations and exceptions (L&Es) to exclusive rights across different fields of IP. Given the openness of the individual test criteria, it is tempting for proponents of strong IP protection to strive for the fixation of the meaning of the three-step test at the constraining end of the spectrum of possible interpretations. As the three-step test lies at the core of legislative initiatives to balance exclusive rights and user freedoms, the cultivation of the test’s constraining function and the suppression of the test’s enabling function has the potential to transform the three-step test into a bulwark against limitations of IP protection.

The EU is at the forefront of a constraining use and interpretation of the three-step test in the field of copyright law. The configuration of the legal framework in the EU is worrisome because it obliges judges to apply the three-step test as an additional control instrument. It is not sufficient that an individual use falls within the scope of a statutory copyright limitation that explicitly permits this type of use without prior authorization. In addition, judges applying the three-step test also examine whether the specific form of use at issue complies with each individual criterion of the three-step test. Hence, the test serves as an instrument to further restrict L&Es that have already been defined precisely in statutory law. Not surprisingly, decisions from courts in the EU have a tendency of shedding light on the constraining aspect of the three-step test and, therefore, reinforcing the hegemony of copyright holders in the IP arena.

The hypothesis underlying the following examination, therefore, is that the EU approach to the three-step test is one-sided in the sense that it only demonstrates the potential of the test to set additional limits to L&Es. The analysis focuses on this transformation of a flexible international balancing tool into a powerful confirmation and fortification of IP protection. For this purpose, the two facets of the international three-step test – its enabling and constraining function – are explored before embarking on a discussion of case law that evolved under the one-sided EU approach. Analyzing repercussions on international lawmaking, it will become apparent that the EU approach already impacted the further development of international L&Es. Certain features of the Marrakesh Treaty clearly reflect the restrictive EU approach.

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Senftleben, M.

Institutionalized Algorithmic Enforcement - The Pros and Cons of the EU Approach to UGC Platform Liability

Florida International University Law Review, 14 , Forthcoming.

Abstract | Links | BibTeX

@article{Senftleben2020,
title = {Institutionalized Algorithmic Enforcement - The Pros and Cons of the EU Approach to UGC Platform Liability},
author = {Senftleben, M.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3565175},
year = {2020},
date = {2020-04-09},
journal = {Florida International University Law Review},
volume = {14},
abstract = {Algorithmic copyright enforcement \textendash the use of automated filtering tools to detect infringing content before it appears on the internet \textendash has a deep impact on the freedom of users to upload and share information. Instead of presuming that user-generated content ("UGC") does not amount to infringement unless copyright owners take action and provide proof, the default position of automated filtering systems is that every upload is suspicious and that copyright owners are entitled to ex ante control over the sharing of information online. If platform providers voluntarily introduce algorithmic enforcement measures, this may be seen as a private decision following from the freedom of companies to run their business as they wish. If, however, copyright legislation institutionalizes algorithmic enforcement and imposes a legal obligation on platform providers to employ automated filtering tools, the law itself transforms copyright into a censorship and filtering instrument. Nonetheless, the new EU Directive on Copyright in the Digital Single Market (“DSM Directive”) follows this path and requires the employment of automated filtering tools to ensure that unauthorized protected content does not populate UGC platforms. The new EU rules on UGC licensing and screening will inevitably lead to the adoption of algorithmic enforcement measures in practice. Without automated content control, UGC platforms will be unable to escape liability for infringing user uploads.
To provide a complete picture, however, it is important to also shed light on counterbalances which may distinguish this new, institutionalized form of algorithmic enforcement from known content filtering tools that have evolved as voluntary measures in the private sector. The DSM Directive underlines the necessity to safeguard user freedoms that support transformative, creative remixes and mash-ups of pre-existing content. This feature of the new legislation may offer important incentives to develop algorithmic tools that go beyond the mere identification of unauthorized takings from protected works. It has the potential to encourage content assessment mechanisms that factor the degree of transformative effort and user creativity into the equation. As a result, more balanced content filtering tools may emerge in the EU. Against this background, the analysis shows that the new EU legislation not only escalates the use of algorithmic enforcement measures that already commenced in the private sector years ago. If rightly implemented, it may also add an important nuance to existing content identification tools and alleviate the problems arising from reliance on automated filtering mechanisms.},
keywords = {},
pubstate = {forthcoming},
tppubtype = {article}
}

Close

Algorithmic copyright enforcement – the use of automated filtering tools to detect infringing content before it appears on the internet – has a deep impact on the freedom of users to upload and share information. Instead of presuming that user-generated content ("UGC") does not amount to infringement unless copyright owners take action and provide proof, the default position of automated filtering systems is that every upload is suspicious and that copyright owners are entitled to ex ante control over the sharing of information online. If platform providers voluntarily introduce algorithmic enforcement measures, this may be seen as a private decision following from the freedom of companies to run their business as they wish. If, however, copyright legislation institutionalizes algorithmic enforcement and imposes a legal obligation on platform providers to employ automated filtering tools, the law itself transforms copyright into a censorship and filtering instrument. Nonetheless, the new EU Directive on Copyright in the Digital Single Market (“DSM Directive”) follows this path and requires the employment of automated filtering tools to ensure that unauthorized protected content does not populate UGC platforms. The new EU rules on UGC licensing and screening will inevitably lead to the adoption of algorithmic enforcement measures in practice. Without automated content control, UGC platforms will be unable to escape liability for infringing user uploads.
To provide a complete picture, however, it is important to also shed light on counterbalances which may distinguish this new, institutionalized form of algorithmic enforcement from known content filtering tools that have evolved as voluntary measures in the private sector. The DSM Directive underlines the necessity to safeguard user freedoms that support transformative, creative remixes and mash-ups of pre-existing content. This feature of the new legislation may offer important incentives to develop algorithmic tools that go beyond the mere identification of unauthorized takings from protected works. It has the potential to encourage content assessment mechanisms that factor the degree of transformative effort and user creativity into the equation. As a result, more balanced content filtering tools may emerge in the EU. Against this background, the analysis shows that the new EU legislation not only escalates the use of algorithmic enforcement measures that already commenced in the private sector years ago. If rightly implemented, it may also add an important nuance to existing content identification tools and alleviate the problems arising from reliance on automated filtering mechanisms.

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Dommering, E.

Annotatie bij HvJ EU 1 oktober 2019 (Planet 49)

Nederlandse Jurisprudentie, (13/14), pp. 1671-1673, 2020, (nr. 98).

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Dommering, E.

Annotatie bij HvJ EU 29 juli 2019 (Fashion ID)

Nederlandse Jurisprudentie, (13/14), pp. 1659-1661, 2020, (nr. 97).

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Bernstein, A., Helberger, N., Schulz, W., Vreese, C.H. de, Zweig, K.A.

Diversity, Fairness, and Data-Driven Personalization in (News) Recommender System

Dagstuhl Reports, 9 (11), pp. 117-124, 2020, (Report from Dagstuhl Perspectives Workshop 19482).

Abstract | Links | BibTeX

@article{Bernstein2020,
title = {Diversity, Fairness, and Data-Driven Personalization in (News) Recommender System},
author = {Bernstein, A. and Vreese, C.H. de and Helberger, N. and Schulz, W. and Zweig, K.A.},
url = {https://www.ivir.nl/publicaties/download/dagrep_v009_i011_p117_19482.pdf},
doi = {10.4230/DagRep.9.11.117},
year = {2020},
date = {2020-04-02},
journal = {Dagstuhl Reports},
volume = {9},
number = {11},
pages = {117-124},
abstract = {As people increasingly rely on online media and recommender systems to consume information,
engage in debates and form their political opinions, the design goals of online media and news
recommenders have wide implications for the political and social processes that take place online
and offline. Current recommender systems have been observed to promote personalization and
more effective forms of informing, but also to narrow the user’s exposure to diverse content.
Concerns about echo-chambers and filter bubbles highlight the importance of design metrics that
can successfully strike a balance between accurate recommendations that respond to individual
information needs and preferences, while at the same time addressing concerns about missing out
important information, context and the broader cultural and political diversity in the news, as
well as fairness. A broader, more sophisticated vision of the future of personalized recommenders
needs to be formed\textendasha vision that can only be developed as the result of a collaborative effort by
different areas of academic research (media studies, computer science, law and legal philosophy,
communication science, political philosophy, and democratic theory). The proposed workshop
will set first steps to develop such a much needed vision on the role of recommender systems
on the democratic role of the media and define the guidelines as well as a manifesto for future
research and long-term goals for the emerging topic of fairness, diversity, and personalization in
recommender systems.},
note = {Report from Dagstuhl Perspectives Workshop 19482},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

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Irion, K., Yakovleva, S.

Pitching trade against privacy: reconciling EU governance of personal data flows with external trade

International Data Privacy Law, 2020.

Abstract | Links | BibTeX

Poort, J., Power, L., Zimin, A., Zuiderveen Borgesius, F.

Rien ne va plus: Reclame en onlinekansspelen

SEW, (3), pp. 116-126, 2020.

Abstract | Links | BibTeX

Helberger, N., Makhortykh, M., Poort, J.

Four tales of sci-fi and information law

Internet Policy Review, 9 (1), 2020, (Editorial).

Abstract | Links | BibTeX

Bouchè, G.

Belgian court asks CJEU whether seeding is communicating to the public

Kluwer Copyright Blog, 2020.

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Zuiderveen Borgesius, F.

Strengthening legal protection against discrimination by algorithms and artificial intelligence

The International Journal of Human Rights, 2020.

Abstract | Links | BibTeX

Stapel, S.

Stichting Brein versus Safe Harbour: The Ongoing Battle Between Intermediaries and Right Holders

Kluwer Copyright Blog, 2020.

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Giannopoulou, A.

Algorithmic systems: the consent is in the detail?

Internet Policy Review, 9 (1), 2020.

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Stapel, S.

Preliminary ruling to the CJEU on geographical boundaries of UCD novelty assessment

Journal of Intellectual Property Law & Practice, 15 (4), pp. 240-241, 2020, (Current Intelligence).

Abstract | Links | BibTeX

Eskens, S.

The personal information sphere: An integral approach to privacy and related information and communication rights

JASIST, 2020.

Abstract | Links | BibTeX

McGonagle, T.

Much ado about judges: perspectieven van het EHRM

Mediaforum, (1), pp. 2-6, 2020.

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Korthals Altes, W.

Rechter en uitingsvrijheid – een actueel thema

Mediaforum, (1), pp. 1, 2020, (Opinie).

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Bastian, M., Drunen, M. van, Eskens, S., Helberger, N., Möller, J.

Implications of AI-driven tools in the media for freedom of expression

2020, (Council of Europe, September 2019).

Abstract | Links | BibTeX

Dommering, E.

Annotatie bij Hoge Raad 5 november 2019 en Hoge Raad 3 december 2019

Nederlandse Jurisprudentie, (10), pp. 1368-1369, 2020.

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Yakovleva, S.

Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy

University of Miami Law Review, 74 (2), pp. 416-519, 2020.

Abstract | Links | BibTeX

@article{Yakovleva2020,
title = {Privacy Protection(ism): The Latest Wave of Trade Constraints on Regulatory Autonomy},
author = {Yakovleva, S.},
url = {https://repository.law.miami.edu/umlr/vol74/iss2/5/},
year = {2020},
date = {2020-02-27},
journal = {University of Miami Law Review},
volume = {74},
number = {2},
pages = {416-519},
abstract = {Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning but is socially constructed by the power of discourse used in international negotiations, and in the interpretation and application of international trade policy and rules. In other words, there are as many definitions of “(digital) protectionism” as there are discourses. The U.S. and E.U. “digital trade” discourses illustrate this point. Using the same term, those trading partners advance utterly different discourses and agendas: an economic discourse with economic efficiency as the main benchmark (United States), and a more multidisciplinary discourse where both economic efficiency and protection of fundamental rights are equally important (European Union). Second, based on a detailed evaluation of the economic “digital trade” discourse, the Article contends that the coining of the term “digital protectionism” to refer to domestic information governance policies not yet fully covered by trade law disciplines is not a logical step to respond to objectively changing circumstances, but rather a product of that discourse, which is coming to dominate U.S.-led international trade negotiations. The Article demonstrates how this redefinition of “protectionism” has already resulted in the adoption of international trade rules in recent trade agreements further restricting domestic autonomy to protect the rights to privacy and the protection of personal data. The Article suggests that the distinction between privacy and personal data protection and protectionism is a moral question, not a question of economic efficiency. Therefore, when a policy conversation, such as the one on cross-border data flows, involves noneconomic spill-over effects to individual rights, such conversation should not be confined within the straightjacket of trade economics, but rather placed in a broader normative perspective. Finally, the Article argues that, in conducting recently restarted multilateral negotiations on electronic commerce at the World Trade Organization, countries should rethink the goals of international trade for the twenty-first century. Such goals should determine and define the discourse, not the other way around. The discussion should not be about what “protectionism” means but about how far domestic regimes are willing to let trade rules interfere in their autonomy to protect their societal, cultural, and political values.},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

Close

Countries spend billions of dollars each year to strengthen their discursive power to shape international policy debates. They do so because in public policy conversations labels and narratives matter enormously. The “digital protectionism” label has been used in the last decade as a tool to gain the policy upper hand in digital trade policy debates about cross-border flows of personal and other data. Using the Foucauldian framework of discourse analysis, this Article brings a unique perspective on this topic. The Article makes two central arguments. First, the Article argues that the term “protectionism” is not endowed with an inherent meaning but is socially constructed by the power of discourse used in international negotiations, and in the interpretation and application of international trade policy and rules. In other words, there are as many definitions of “(digital) protectionism” as there are discourses. The U.S. and E.U. “digital trade” discourses illustrate this point. Using the same term, those trading partners advance utterly different discourses and agendas: an economic discourse with economic efficiency as the main benchmark (United States), and a more multidisciplinary discourse where both economic efficiency and protection of fundamental rights are equally important (European Union). Second, based on a detailed evaluation of the economic “digital trade” discourse, the Article contends that the coining of the term “digital protectionism” to refer to domestic information governance policies not yet fully covered by trade law disciplines is not a logical step to respond to objectively changing circumstances, but rather a product of that discourse, which is coming to dominate U.S.-led international trade negotiations. The Article demonstrates how this redefinition of “protectionism” has already resulted in the adoption of international trade rules in recent trade agreements further restricting domestic autonomy to protect the rights to privacy and the protection of personal data. The Article suggests that the distinction between privacy and personal data protection and protectionism is a moral question, not a question of economic efficiency. Therefore, when a policy conversation, such as the one on cross-border data flows, involves noneconomic spill-over effects to individual rights, such conversation should not be confined within the straightjacket of trade economics, but rather placed in a broader normative perspective. Finally, the Article argues that, in conducting recently restarted multilateral negotiations on electronic commerce at the World Trade Organization, countries should rethink the goals of international trade for the twenty-first century. Such goals should determine and define the discourse, not the other way around. The discussion should not be about what “protectionism” means but about how far domestic regimes are willing to let trade rules interfere in their autonomy to protect their societal, cultural, and political values.

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Bogataj Jancic, M., Botero, C., Butler, B., Carroll, M., Craig, C., Flynn, S., Geiger, C., Guibault, L., Jaszi, P., Margoni, T., Ncube, C., Quintais, J., Rocha de Souza, A., Sag, M., Scaria, A.G., White, B.

Joint Comment to WIPO on Copyright and Artificial Intelligence

2020.

Abstract | Links | BibTeX

Hugenholtz, P.

In Memoriam Jan Kabel

AMI, (1), pp. 1-2, 2020.

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van Gompel, S.

Artikelen 8 tot en met 11 DSM-richtlijn: Niet of niet meer in de handel zijnde werken en andere materialen

AMI, (1), pp. 3-10, 2020.

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Ducato, R., Hegladóttir, A., Mazgal, A., Quintais, J., Zuiderveen Borgesius, F.

Panel discussion at CPDP 2020: We need to talk about filters: algorithmic copyright enforcement vs data protection.

06.02.2020.

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@misc{Quintais2020,
title = {Panel discussion at CPDP 2020: We need to talk about filters: algorithmic copyright enforcement vs data protection. },
author = {Quintais, J. and Zuiderveen Borgesius, F. and Mazgal, A. and Ducato, R. and Heglad\'{o}ttir, A. },
url = {https://www.youtube.com/watch?v=SstHA1ALZoI},
year = {2020},
date = {2020-02-06},
abstract = {The new Copyright in the Digital Single Market (DSM) Directive was published in May 2019. Its most controversial provision is Article 17 (ex 13), which creates a new liability regime for user-generated content platforms, like YouTube and Facebook. The new regime makes these platforms directly liable for their users’ uploads, without the possibility of benefiting from the hosting safe-harbour. This forces platforms to either license all or most of the content uploaded by users (which is near impossible) or to adopt preventive measures like filters. The likely outcome is that covered platforms will engage in general monitoring of the content uploaded by their users. This panel will discuss the issues raised by Article 17 DSM Directive and the model of algorithmic enforcement it incentivizes, with a focus on the freedom of expression and data protection risks it entails.

• Article 17 of the Copyright in the Digital Single Market Directive creates a new liability regime for user-generated content platforms.
• Does this provision introduce de facto the controversial upload filtering systems and, as a result, general monitoring of information in content-sharing platforms?
• Is Article 17 essentially in conflict with the GDPR and, in particular, the principle of minimisation and the right not to be subject to automated decision-making processes? What are the potential consequences of this provision on users’ freedom of expression?
• If Article 17 can negatively affect data protection and freedom of expression what are the possible legal and extra-legal responses to neutralise the risk?
},
keywords = {},
pubstate = {published},
tppubtype = {presentation}
}

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McGonagle, T.

Szurovecz t. Hongarije (EHRM, nr. 15428/16) - Court underscores importance of direct news-gathering by journalists

European Human Rights Cases, 2020.

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Hugenholtz, P., Poort, J.

Film Financing in the Digital Single Market: Challenges to Territoriality

IIC, 51 (2), pp. 167-186, 2020.

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@article{Hugenholtz2020,
title = {Film Financing in the Digital Single Market: Challenges to Territoriality},
author = {Hugenholtz, P. and Poort, J.},
url = {https://link.springer.com/content/pdf/10.1007%2Fs40319-019-00900-2.pdf},
doi = {10.1007/s40319-019-00900-2},
year = {2020},
date = {2020-01-30},
journal = {IIC},
volume = {51},
number = {2},
pages = {167-186},
abstract = {This article discusses the role of territorial licences for feature films against the background of judicial and market developments in the EU. Currently, territorial licences are deemed a cornerstone of the exploitation and financing of films in Europe. However, current models of film financing are under increasing pressure both from market developments such as the turbulent growth of global online video platforms, and from developments in EU law aimed at removing national territorial barriers to the Single Market. Examples are the rule of Union-wide exhaustion of the distribution right, the EU Portability Regulation and the country of origin rules for satellite broadcasting and online simulcasting. EU competition law sets additional limits to grants of territorial exclusivity, and prohibits clauses in broadcasting and pay television licences that prevent or restrict “passive” sales to consumers/viewers in non-licensed territories. The freedom of right holders to preserve territorial exclusivity by way of contract is likely to become increasingly vulnerable to EU competition law, as underlying territorial rights no longer support territorial grants. For the film sector where territorial exclusivity remains indispensable, the European Commission could create specific competition law rules in the form of “block exemptions”. Language exclusivity \textendash i.e. exclusive grants of rights for distinct language versions of a film \textendash could provide a practical and legally more robust alternative to territorial licensing.},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

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Fahy, R., Voorhoof, D.

Journalist and editor’s conviction for incitement to religious hatred violated Article 10

2020.

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