Between Filters and Fundamental Rights: How the Court of Justice saved Article 17 in C-401/19 – Poland v. Parliament and Council external link

Verfassungsblog, 2022

Abstract

On 26 April 2022, the Court of Justice of the EU (CJEU or Court) delivered its much awaited judgement in Case C-401/19 – Poland v Parliament and Council. The case focuses on the validity of Article 17 of the Copyright in the Digital Single Market Directive (CDSMD) in light of fundamental rights. The judgment marks the climax of a turbulent journey in the area of copyright law, with potential implications for the future of platform regulation and content moderation in EU law.

Auteursrecht, filters, frontpage, Fundamental rights

Bibtex

Article{nokey, title = {Between Filters and Fundamental Rights: How the Court of Justice saved Article 17 in C-401/19 – Poland v. Parliament and Council}, author = {Quintais, J.}, url = {https://verfassungsblog.de/filters-poland/?s=09}, year = {0516}, date = {2022-05-16}, journal = {Verfassungsblog}, abstract = {On 26 April 2022, the Court of Justice of the EU (CJEU or Court) delivered its much awaited judgement in Case C-401/19 – Poland v Parliament and Council. The case focuses on the validity of Article 17 of the Copyright in the Digital Single Market Directive (CDSMD) in light of fundamental rights. The judgment marks the climax of a turbulent journey in the area of copyright law, with potential implications for the future of platform regulation and content moderation in EU law.}, keywords = {Auteursrecht, filters, frontpage, Fundamental rights}, }

Using Terms and Conditions to apply Fundamental Rights to Content Moderation: Is Article 12 DSA a Paper Tiger? external link

Digital services act, DSA, frontpage, Fundamental rights, Online platforms, terms and conditions

Bibtex

Online publication{Appelman2021, title = {Using Terms and Conditions to apply Fundamental Rights to Content Moderation: Is Article 12 DSA a Paper Tiger?}, author = {Appelman, N. and Quintais, J. and Fahy, R.}, url = {https://verfassungsblog.de/power-dsa-dma-06/}, doi = {https://doi.org/10.17176/20210901-233103-0.}, year = {0901}, date = {2021-09-01}, keywords = {Digital services act, DSA, frontpage, Fundamental rights, Online platforms, terms and conditions}, }

Article 12 DSA: Will platforms be required to apply EU fundamental rights in content moderation decisions? external link

Content moderation, Digital services act, DSA, frontpage, Fundamental rights

Bibtex

Online publication{Quintais2021f, title = {Article 12 DSA: Will platforms be required to apply EU fundamental rights in content moderation decisions?}, author = {Quintais, J. and Appelman, N. and Fahy, R.}, url = {https://dsa-observatory.eu/2021/05/31/article-12-dsa-will-platforms-be-required-to-apply-eu-fundamental-rights-in-content-moderation-decisions/}, year = {0531}, date = {2021-05-31}, keywords = {Content moderation, Digital services act, DSA, frontpage, Fundamental rights}, }

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights external link

Journal of Intellectual Property Law & Practice, vol. 16, num: 3, pp: 213-225, 2021

Abstract

On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling. This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).

Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, Funke Medien, limitations and exceptions, music sampling, Pelham, Spiegel Online

Bibtex

Article{QuintaisJutte2021, title = {The Pelham Chronicles: Sampling, Copyright and Fundamental Rights}, author = {Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3775599}, doi = {https://doi.org/https://doi.org/10.1093/jiplp/jpab040}, year = {0218}, date = {2021-02-18}, journal = {Journal of Intellectual Property Law & Practice}, volume = {16}, number = {3}, pages = {213-225}, abstract = {On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated. This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling. This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).}, keywords = {Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, Funke Medien, limitations and exceptions, music sampling, Pelham, Spiegel Online}, }

An approach to a fundamental rights impact assessment to automated decision-making external link

International Data Privacy Law, vol. 10, num: 1, pp: 76-106, 2020

Abstract

Companies and other private institutions see great and promising profits in the use of automated decision-making (‘ADM’) for commercial-, financial- or efficiency in work processing purposes. Meanwhile, ADM based on a data subjects’ personal data may (severely) impact its fundamental rights and freedoms. The General Data Protection Regulation (GDPR) provides for a regulatory framework that applies whenever a controller considers and deploys ADM onto individuals on the basis of their personal data. In the design stage of the intended ADM, article 35 (3)(a) obliges a controller to apply a Data Protection Impact Assessment (DPIA), part of which is an assessment of ADM’s impact on individual rights and freedoms. Article 22 GDPR determines under what conditions ADM is allowed and endows data subjects with increased protection. Research among companies of various sizes has shown that there is (legal) insecurity about the interpretation of the GDPR (including the provisions relevant to ADM). The first objective of the author is to detect ways forward by offering practical handles to execute a DPIA that includes a slidable assessment of impacts on data subjects’ fundamental rights. This assessment is based on four benchmarks that should help to assess the gravity of potential impacts, i.e. i) to determine the impact on the fundamental right(s) at stake, ii) to establish the context in which the ADM is used, iii) the establishment of who is beneficiary of the use of personal data in the ADM and iv) the establishment who is in control over the data flows in the ADM. From the benchmarks an overall fundamental rights impact assessment about ADM should arise. A second objective is to indicate potential factors and measures that a controller should consider in its risk management after the assessment. The proposed approach should help fostering fair, compliant and trustworthy ADM and contains directions for future research.

automated decision making, Fundamental rights, horizontal relations, impact assessment

Bibtex

Article{Janssen2020, title = {An approach to a fundamental rights impact assessment to automated decision-making}, author = {Janssen, H.}, doi = {https://doi.org/https://doi.org/10.1093/idpl/ipz028}, year = {0306}, date = {2020-03-06}, journal = {International Data Privacy Law}, volume = {10}, number = {1}, pages = {76-106}, abstract = {Companies and other private institutions see great and promising profits in the use of automated decision-making (‘ADM’) for commercial-, financial- or efficiency in work processing purposes. Meanwhile, ADM based on a data subjects’ personal data may (severely) impact its fundamental rights and freedoms. The General Data Protection Regulation (GDPR) provides for a regulatory framework that applies whenever a controller considers and deploys ADM onto individuals on the basis of their personal data. In the design stage of the intended ADM, article 35 (3)(a) obliges a controller to apply a Data Protection Impact Assessment (DPIA), part of which is an assessment of ADM’s impact on individual rights and freedoms. Article 22 GDPR determines under what conditions ADM is allowed and endows data subjects with increased protection. Research among companies of various sizes has shown that there is (legal) insecurity about the interpretation of the GDPR (including the provisions relevant to ADM). The first objective of the author is to detect ways forward by offering practical handles to execute a DPIA that includes a slidable assessment of impacts on data subjects’ fundamental rights. This assessment is based on four benchmarks that should help to assess the gravity of potential impacts, i.e. i) to determine the impact on the fundamental right(s) at stake, ii) to establish the context in which the ADM is used, iii) the establishment of who is beneficiary of the use of personal data in the ADM and iv) the establishment who is in control over the data flows in the ADM. From the benchmarks an overall fundamental rights impact assessment about ADM should arise. A second objective is to indicate potential factors and measures that a controller should consider in its risk management after the assessment. The proposed approach should help fostering fair, compliant and trustworthy ADM and contains directions for future research.}, keywords = {automated decision making, Fundamental rights, horizontal relations, impact assessment}, }

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

JASIST, vol. 71, num: 9, pp: 1116-1128, 2020

Abstract

Data protection laws, including the European Union General Data Protection Regulation, regulate aspects of online personalization. However, the data protection lens is too narrow to analyze personalization. To define conditions for personalization, we should understand data protection in its larger fundamental rights context, starting with the closely connected right to privacy. If the right to privacy is considered along with other European fundamental rights that protect information and communication flows, namely, communications confidentiality; the right to receive information; and freedom of expression, opinion, and thought, these rights are observed to enable what I call a “personal information sphere” for each person. This notion highlights how privacy interferences affect other fundamental rights. The personal information sphere is grounded in European case law and is thus not just an academic affair. The essence of the personal information sphere is control, yet with a different meaning than mere control as guaranteed by data protection law. The personal information sphere is about people controlling how they situate themselves in information and communication networks. It follows that, to respect privacy and related rights, online personalization providers should actively involve users in the personalization process and enable them to use personalization for personal goals.

Data protection law, frontpage, Fundamental rights, personalization, Privacy

Bibtex

Article{Eskens2020, title = {The personal information sphere: An integral approach to privacy and related information and communication rights}, author = {Eskens, S.}, url = {https://www.ivir.nl/publicaties/download/jasist_2020.pdf}, doi = {https://doi.org/https://doi.org/10.1002/asi.24354}, year = {0320}, date = {2020-03-20}, journal = {JASIST}, volume = {71}, number = {9}, pages = {1116-1128}, abstract = {Data protection laws, including the European Union General Data Protection Regulation, regulate aspects of online personalization. However, the data protection lens is too narrow to analyze personalization. To define conditions for personalization, we should understand data protection in its larger fundamental rights context, starting with the closely connected right to privacy. If the right to privacy is considered along with other European fundamental rights that protect information and communication flows, namely, communications confidentiality; the right to receive information; and freedom of expression, opinion, and thought, these rights are observed to enable what I call a “personal information sphere” for each person. This notion highlights how privacy interferences affect other fundamental rights. The personal information sphere is grounded in European case law and is thus not just an academic affair. The essence of the personal information sphere is control, yet with a different meaning than mere control as guaranteed by data protection law. The personal information sphere is about people controlling how they situate themselves in information and communication networks. It follows that, to respect privacy and related rights, online personalization providers should actively involve users in the personalization process and enable them to use personalization for personal goals.}, keywords = {Data protection law, frontpage, Fundamental rights, personalization, Privacy}, }

Fundamental rights review of EU data collection instruments and programmes external link

Fondazione Giacomo Brodolini & Irion, K.
2019

Abstract

This report is the result of a Pilot Project requested by the European Parliament, managed by the Commission and carried out by a group of independent experts. The scope of the project was to establish and support an independent experts’ group to carry out a fundamental rights review of existing EU legislation and instruments in the Area of Freedom, Security and Justice (AFSJ) that involve the collection, retention, storage or transfer of personal data. One outcome of the project is a database of AFSJ legislation and instruments with individual fundamental rights assessments (at http://brodolini.mbs.it/). The final report concludes that that fundamental rights safeguards need to be more consistently considered and applied in the AFSJ. The conclusions highlight five broad issues for further consideration: ambiguous definitions and open terms; law enforcement access to migration databases; the expansion of centralised databases; data retention periods; and information rights and duties.

Area of Freedom, EU databases, EU law, frontpage, Fundamental rights, Personal data, Privacy, Security and Justice

Bibtex

Online publication{Brodolini2019, title = {Fundamental rights review of EU data collection instruments and programmes}, author = {Fondazione Giacomo Brodolini and Irion, K.}, url = {http://www.fondazionebrodolini.it/sites/default/files/final_report_0.pdf}, year = {1204}, date = {2019-12-04}, abstract = {This report is the result of a Pilot Project requested by the European Parliament, managed by the Commission and carried out by a group of independent experts. The scope of the project was to establish and support an independent experts’ group to carry out a fundamental rights review of existing EU legislation and instruments in the Area of Freedom, Security and Justice (AFSJ) that involve the collection, retention, storage or transfer of personal data. One outcome of the project is a database of AFSJ legislation and instruments with individual fundamental rights assessments (at http://brodolini.mbs.it/). The final report concludes that that fundamental rights safeguards need to be more consistently considered and applied in the AFSJ. The conclusions highlight five broad issues for further consideration: ambiguous definitions and open terms; law enforcement access to migration databases; the expansion of centralised databases; data retention periods; and information rights and duties.}, keywords = {Area of Freedom, EU databases, EU law, frontpage, Fundamental rights, Personal data, Privacy, Security and Justice}, }

Advocate General Turns down the Music – Sampling Is Not a Fundamental Right under EU Copyright Law external link

Jütte, B. & Quintais, J.
European Intellectual Property Review , vol. 41, num: 10, pp: 654-657, 2019

Abstract

In his Opinion in Pelham (C-467/17) Advocate General Szpunar suggests that the use of samples from sound recordings is not permitted under the European copyright rules. While applying an extensive interpretation of the scope of the rights of phonogram producers, he rejects an extensive interpretation of the quotation exception and limits the role of fundamental rights as external checks to copyright law. Despite its merits, there are key aspects of the Opinion that raise concerns: a too broad interpretation of the reproduction right; and an unduly strict view of copyright exceptions – especially quotation – and the role of fundamental rights in shaping the scope of copyright protection. On those points, we suggest that the Court does not follow the Opinion.

Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, limitations and exceptions, music sampling

Bibtex

Article{Jütte2019, title = {Advocate General Turns down the Music – Sampling Is Not a Fundamental Right under EU Copyright Law}, author = {Jütte, B. and Quintais, J.}, url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3377205}, year = {2019}, date = {2019-05-09}, journal = {European Intellectual Property Review }, volume = {41}, number = {10}, pages = {654-657}, abstract = {In his Opinion in Pelham (C-467/17) Advocate General Szpunar suggests that the use of samples from sound recordings is not permitted under the European copyright rules. While applying an extensive interpretation of the scope of the rights of phonogram producers, he rejects an extensive interpretation of the quotation exception and limits the role of fundamental rights as external checks to copyright law. Despite its merits, there are key aspects of the Opinion that raise concerns: a too broad interpretation of the reproduction right; and an unduly strict view of copyright exceptions – especially quotation – and the role of fundamental rights in shaping the scope of copyright protection. On those points, we suggest that the Court does not follow the Opinion.}, keywords = {Copyright, EU law, Freedom of expression, frontpage, Fundamental rights, limitations and exceptions, music sampling}, }

Should Fundamental Rights to Privacy and Data Protection be a Part of the EU’s International Trade "Deals"? external link

World Trade Review, vol. 2018, pp: 477-508, 2017

Abstract

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.

Data protection, European Union, frontpage, Fundamental rights, international trade, Privacy

Bibtex

Article{Yakovleva2017b, title = {Should Fundamental Rights to Privacy and Data Protection be a Part of the EU’s International Trade "Deals"?}, author = {Yakovleva, S.}, url = {https://www.ivir.nl/publicaties/download/WTR_2018.pdf}, doi = {https://doi.org/https://doi.org/10.1017/S1474745617000453}, year = {1109}, date = {2017-11-09}, journal = {World Trade Review}, volume = {2018}, pages = {477-508}, abstract = {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.}, keywords = {Data protection, European Union, frontpage, Fundamental rights, international trade, Privacy}, }

Unfair Commercial Practices: A Complementary Approach to Privacy Protection external link

van Eijk, N., Hoofnagle, C.J. & Kannekens, E.
European Data Protection Law Review, vol. 2017, num: 3, pp: 325-337, 2017

Abstract

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.

frontpage, Fundamental rights, Online platforms, Personal data, Privacy, unfair commercial practices

Bibtex

Article{vanEijk2017b, title = {Unfair Commercial Practices: A Complementary Approach to Privacy Protection}, author = {van Eijk, N. and Hoofnagle, C.J. and Kannekens, E.}, url = {https://www.ivir.nl/publicaties/download/edpl_2017_03.pdf}, doi = {https://doi.org/https://doi.org/10.21552/edpl/2017/3/7}, year = {1019}, date = {2017-10-19}, journal = {European Data Protection Law Review}, volume = {2017}, number = {3}, pages = {325-337}, abstract = {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.}, keywords = {frontpage, Fundamental rights, Online platforms, Personal data, Privacy, unfair commercial practices}, }