IVIR - Universiteit van Amsterdam

Annex Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”)

as part of ILA Committee:, van Eechoud, M.

JIPITEC, 12 (1), pp. 86-93, 2021.

The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?

Quintais, J., Schwemer, S.

Working Paper, 2021.

@article{Quintais2021e,
title = {The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?},
author = {Quintais, J. and Schwemer, S. },
url = {https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3841606},
year = {2021},
date = {2021-05-10},
journal = {Working Paper},
abstract = {On 15 December 2020, the European Commission published its proposal for a Regulation on a Single Market for Digital Services (Digital Services Act). It carries out a regulatory overhaul of the 21-year- old horizontal rules on intermediary liability in the Directive and introduces new due diligence obligations for intermediary services.

Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this paper, we look specifically at the intersection of the Digital Services Act with the regime for online content sharing service providers (OCSSPs) set forth in art. 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the DSA will apply to OCSSPs insofar as it contains rules that regulate matters not covered by art. 17 CDSM Directive, as well as specific rules on matters where art. 17 leaves margin of discretion to Member States. This includes, to varying degrees, rules in the DSA relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where art. 17 CDSM Directive contains specific (but less precise) regulation on the matter.

From a normative perspective, this might be a desirable outcome, to the extent that the DSA aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might be help achieve that goal. },
keywords = {},
pubstate = {published},
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}

Freedom of expression, the Media and Journalists: Case-law of the Euopean Court of Human Rights

McGonagle, T., Voorhoof, D.

2021, ISBN: 9789287184351, (IRIS Themes, vol. III, 6th edition, April 2021).

Persvrijheidsmonitor 2020

McGonagle, T., Volgenant, O.

2021.

Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders

Husovec, M., Quintais, J.

Mylly, Tuomas; Griffiths, Jonathan (Ed.): Oxford University Press, 2021.

@inbook{HusovecQuintais2021-2,
title = {Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders},
author = {Husovec, M. and Quintais, J.},
editor = {Tuomas Mylly and Jonathan Griffiths},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835930},
year = {2021},
date = {2021-04-29},
publisher = {Oxford University Press},
abstract = {Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators.

EU copyright law often uses a technical term of ‘right-holders’ to refer to a wide range of players with legal entitlements in the copyright ecosystem: authors, performers, phonogram producers, film producers, broadcasting organisations and (most recently) press publishers. Obviously, not all right-holders are created equal nor do their legal entitlements flow from identical normative justifications. We argue in this chapter that even the use of this seemingly neutral term can, due to the design of underlying legal solutions, lead to stark inequality between right-holders. Our broader goal is to demonstrate that maximising enforcement by means of Art. 17 of the DSM Directive does not simply maximise the position of every right-holder at the expense of platforms but does so disproportionality for big right-holders. Besides, we show that blind use of ‘right-holder’ and ‘user’ distinction harms the very creators that provision is supposed to protect. },
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}

‘Non, non, rien n’a changé’: Over vergoedingsaanspraken voor makers uit hoofde van exploitatiecontracten

van Gompel, S.

Auteursrecht, 2021 (1), pp. 3-9, 2021.

Annotatie bij Rb Amsterdam 10 september 2020 (Left Lane c.s. / Sony Music)

van Gompel, S.

Auteursrecht, (1), pp. 40-42, 2021.

It’s 23 April 2021, so where is the Advocate General opinion in Case C-401/19 Poland v Parliament and Council?

Keller, P.

Kluwer Copyright Blog, 2021.

The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part II

Bodó, B., Giannopoulou, A., Mezei, P., Quintais, J.

Kluwer Copyright Blog 2021.

The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part I

Bodó, B., Giannopoulou, A., Mezei, P., Quintais, J.

Kluwer Copyright Blog 2021.

A Serpent Eating Its Tail: The Database Directive Meets the Open Data Directive

van Eechoud, M.

IIC - International Review of Intellectual Property and Competition Law , 52 (4), pp. 375-378, 2021, (Editorial).

EU copyright law round up – first trimester of 2021

Quintais, J., Trapova, A.

Kluwer Copyright Blog, 2021.

Toward a Critique of Algorithmic Violence

Bellanova, R., Irion, K., Lindskov Jacobsen, K., Ragazzi, F., Saugmann, R., Suchman, L.

International Political Sociology, 15 (1), pp. 121–150, 2021.

Nieuws in de platformeconomie

van Eechoud, M.

De Hofvijver, 11 (118), 2021.

Formal meeting (oral evidence session): Digital trade and data

Irion, K.

2021.

Annotatie bij Hof van Justitie EU 16 juli 2020 (Data Protection Commissioner / Facebook Ireland & Schrems)(Schrems II)

Nederlandse Jurisprudentie, 2021 (5/6), pp. 455-458, 2021.

Annotatie bij Hoge Raad 1 oktober 2019 (nr. 17/01305)

Nederlandse Jurisprudentie, 2021 (5/6), pp. 550-551, 2021.

Annotatie bij EHRM 8 oktober 2019 (Szurovecz / Hongarije)

Nederlandse Jurisprudentie, 2021 (4), pp. 230-231, 2021.

Evaluatie 2020: Wet op de Inlichtingen- en veiligheidsdiensten 2017

Bot, Th. P.L., Dommering, E., van den Herik, L.J., Jacobs, B.P.F., Jones-Bos, R.V.M., Nagtegaal, W., Zijlstra, S.E. (Evaluatiecommissie Wiv 2017)

2021, (Den Haag: Ministeries BDZK en Defensie, 2021, 180 pp.).

Annotatie bij EHRM 30 januari 2020 (Breyer/ Duitsland)

Nederlandse Jurisprudentie, (51/52), pp. 7926-7929, 2021.

Poort, J., Zuiderveen Borgesius, F.

Personalised pricing: The demise of the fixed price?

2021, (Forthcoming as chapter 10 in: Kohl, U., & Eisler, J. (eds.), Data-Driven Personalisation in Markets, Politics and Law. Cambridge: Cambridge University Press, 2021.).

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights

Jütte, B.J., Quintais, J.

Journal of Intellectual Property Law & Practice, 2021.

@article{QuintaisJutte2021,
title = {The Pelham Chronicles: Sampling, Copyright and Fundamental Rights},
author = {Quintais, J. and Jutte, B.J.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3775599},
doi = {https://doi.org/10.1093/jiplp/jpab040},
year = {2021},
date = {2021-02-18},
journal = {Journal of Intellectual Property Law & Practice},
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 = {},
pubstate = {published},
tppubtype = {article}
}

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).

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms under the Copyright in the Digital Single Market Directive

Husovec, M., Quintais, J.

GRUR International - Journal of European and International IP Law, 4/2021 , 2021.

Trends And Developments In Artificial Intelligence: Challenges To Patent Law

Gervais, D.J., P.B. Hugenholtz, Quintais, J.

Kluwer Patent Blog 2021.

AI Regulation in the European Union and Trade Law: How can accountability of AI and a high level of consumer protection prevail over a trade law discipline on source code?, study commissioned by the Vzbv, Amsterdam: Institute for Information Law, 2021

Irion, K.

2021.

Artikel 18-23 DSM-richtlijn: Exploitatiecontracten

Hugenholtz, P.

AMI, 2020 (6), pp. 187-192, 2020.

Gervais, D.J., Hugenholtz, P., Quintais, J.

Trends and Developments in Artificial Intelligence: Challenges to Copyright

Kluwer Copyright Blog, 2020.

Can scholarly pirate libraries bridge the knowledge access gap? An empirical study on the structural conditions of book piracy in global and European academia

Antal, D., Bodó, B., Puha, Z.

PLoS ONE, 15 (12), 2020.

Panta rhei: A European Perspective on Ensuring a High-Level of Protection of Digital Human Rights in a World in Which Everything Flows

Irion, K.

Amsterdam Law School Research Paper No. 2020, (38), 2020.

Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework: Final Report

Allan, J., Gervais, D.J., Hartmann, C., Hugenholtz, P., Quintais, J.

2020, (Report written for the European Commission by P.B. Hugenholtz, D. Gervais, J.P. Quintais, C. Hartmann & J. Allan, completed September 2020. ISBN: 97892762244488).

@techreport{Hugenholtz2020f,
title = {Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework: Final Report},
author = {Hugenholtz, P. and Quintais, J. and Gervais, D.J. and Hartmann, C. and Allan, J.},
url = {https://op.europa.eu/en/publication-detail/-/publication/394345a1-2ecf-11eb-b27b-01aa75ed71a1/language-en
https://www.ivir.nl/publicaties/download/Trends_and_Developments_in_Artificial_Intelligence-1.pdf},
year = {2020},
date = {2020-11-27},
abstract = {This report examines copyright and patent protection in Europe for AI-assisted outputs in general and in three priority domains: science (in particular, meteorology), media (journalism), and pharmaceutical research. It comprises an assessment of the state of the art of uses of AI in the three focus areas, and a legal analysis of how IP laws currently apply to AI-assisted creative and innovative outputs. The report concludes that the current state of the art in AI does not require or justify immediate substantive changes in copyright and patent law in Europe. The existing concepts of copyright and patent law are sufficiently abstract and flexible to meet the current challenges from AI. In addition, related rights regimes potentially extend to ‘authorless’ AI productions in a variety of sectors, and the sui generis database right may offer protection to AI-produced databases resulting from substantial investment. However, taking into account the practical implications of AI technologies, the report identifies specific avenues for future legal reform (if justified by empirical evidence), offers recommendations for improvements in the application of existing rules (e.g. via guidelines), and highlights the need to study the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition and contract law.},
note = {Report written for the European Commission by P.B. Hugenholtz, D. Gervais, J.P. Quintais, C. Hartmann & J. Allan, completed September 2020. ISBN: 97892762244488},
keywords = {},
pubstate = {published},
tppubtype = {techreport}
}

Signs Eligible for Trademark Protection - Dysfunctional Incentives and a Functionality Dilemma in the EU

Senftleben, M.

pp. 209-225, 2020, (Chapter in: Cambridge Handbook on International and Comparative Trademark Law, I. Calboli & J.C. Ginsburg (eds.), Cambridge: Cambridge University Press 2020.).

@inbook{Senftleben2020f,
title = {Signs Eligible for Trademark Protection - Dysfunctional Incentives and a Functionality Dilemma in the EU},
author = {Senftleben, M.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3717753
https://www.ivir.nl/publicaties/download/Signs_Eligible_for_Trademark_Protection.pdf
https://doi.org/10.1017/9781108399456.014},
year = {2020},
date = {2020-11-26},
pages = {209-225},
abstract = {In the European Union (EU), the criteria for determining a sign’s eligibility for trademark protection are harmonized to a large extent. On the one hand, the trademark legislation and office practices in EU Member States have to keep within the harmonized legal framework set forth in the EU Trade Mark Directive (TMD). On the other hand, the European Union Trade Mark Regulation (EUTMR) provides for a set of eligibility criteria that apply to European Union Trade Marks (EUTM) with equal effect throughout the EU territory. As the rules in the Regulation are in line with those in the Directive, the two legislative instruments constitute a robust body of harmonized norms informing the decision on the registration of a sign as a trademark. The harmonizing effect is enhanced by the fact that national courts have to refer questions relating to the application and interpretation of eligibility criteria to the Court of Justice of the European Union (CJEU).
As in other regions of the world, the criteria applied to determine eligibility for trademark protection are quite flexible in the EU. The open-ended definition of protectable subject matter leaves room for the extension of trademark protection to non-traditional types of marks, such as shape, sound and colour marks. Trademark offices applying EU trademark law have also accepted, for instance, abstract colours and colour combinations, motion and multimedia marks, melodies and sounds, taste marks, hologram marks and position marks.
The analysis of the trend to register non-traditional marks in the EU outlines the legal framework which the CJEU developed to assess the eligibility of non-traditional types of source identifiers for trademark protection. On this basis, it discusses the objective to safeguard freedom of competition and the legal instruments which the CJEU employs for this purpose: the requirement of providing evidence of the acquisition of distinctive character through use in trade and the categorical exclusion of functional signs from trademark protection. Drawing conclusions, it will become apparent that the basic requirement of distinctive character plays an ambiguous role in the regulation of access to trademark protection for non-traditional marks. It is both an obstacle to trademark protection and an incentive for enhanced investment in non-traditional types of marks.},
note = {Chapter in: Cambridge Handbook on International and Comparative Trademark Law, I. Calboli & J.C. Ginsburg (eds.), Cambridge: Cambridge University Press 2020.},
keywords = {},
pubstate = {published},
tppubtype = {inbook}
}

In the European Union (EU), the criteria for determining a sign’s eligibility for trademark protection are harmonized to a large extent. On the one hand, the trademark legislation and office practices in EU Member States have to keep within the harmonized legal framework set forth in the EU Trade Mark Directive (TMD). On the other hand, the European Union Trade Mark Regulation (EUTMR) provides for a set of eligibility criteria that apply to European Union Trade Marks (EUTM) with equal effect throughout the EU territory. As the rules in the Regulation are in line with those in the Directive, the two legislative instruments constitute a robust body of harmonized norms informing the decision on the registration of a sign as a trademark. The harmonizing effect is enhanced by the fact that national courts have to refer questions relating to the application and interpretation of eligibility criteria to the Court of Justice of the European Union (CJEU).
As in other regions of the world, the criteria applied to determine eligibility for trademark protection are quite flexible in the EU. The open-ended definition of protectable subject matter leaves room for the extension of trademark protection to non-traditional types of marks, such as shape, sound and colour marks. Trademark offices applying EU trademark law have also accepted, for instance, abstract colours and colour combinations, motion and multimedia marks, melodies and sounds, taste marks, hologram marks and position marks.
The analysis of the trend to register non-traditional marks in the EU outlines the legal framework which the CJEU developed to assess the eligibility of non-traditional types of source identifiers for trademark protection. On this basis, it discusses the objective to safeguard freedom of competition and the legal instruments which the CJEU employs for this purpose: the requirement of providing evidence of the acquisition of distinctive character through use in trade and the categorical exclusion of functional signs from trademark protection. Drawing conclusions, it will become apparent that the basic requirement of distinctive character plays an ambiguous role in the regulation of access to trademark protection for non-traditional marks. It is both an obstacle to trademark protection and an incentive for enhanced investment in non-traditional types of marks.

Intermediary Liability and Trade Mark Infringement - Proliferation of Filter Obligations in Civil Law Jurisdictions?

Senftleben, M.

pp. 381-403, 2020, (Chapter in: Oxford Handbook of Online Intermediary Liability, G.F. Frosio (ed.), Oxford: Oxford University Press.).

@inbook{Senftleben2020g,
title = {Intermediary Liability and Trade Mark Infringement - Proliferation of Filter Obligations in Civil Law Jurisdictions?},
author = {Senftleben, M.},
url = {https://www.ivir.nl/publicaties/download/Intermediary_Liability_and_Trade_Mark_Infringement.pdf
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3736919
https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198837138.001.0001/oxfordhb-9780198837138},
year = {2020},
date = {2020-11-26},
pages = {381-403},
abstract = {The erosion of the safe harbour for hosting in the EU Directive on Copyright in the Digital Single Market (CDSM Directive) leads to a remarkable climate change in the field of EU copyright law and the civil law jurisdictions of continental EU Member States. Inevitably, it raises the question of potential repercussions on the safe harbour for hosting and filtering standards in trademark cases. Even though online marketplaces are explicitly exempted from the new copyright rules and the CDSM Directive is not intended to neutralize the safe harbour for hosting in trademark cases, the adoption of a more restrictive approach in copyright law may quicken the appetite of trademark proprietors for similar measures in trademark law.
The extension of the new copyright approach to trademark cases, however, is unlikely to yield satisfactory results.Due to the different conceptual contours of trademark rights, a system mimicking the filtering obligations following from the CDSM Directive would give trademark proprietors excessive control over the use of their trademarks in the digital environment. Such an overbroad system of automated, algorithmic filtering would encroach upon the fundamental guarantee of freedom of expression and freedom of competition. It is likely to have a chilling effect on legitimate descriptive use of trademarks, comparative advertising, advertising by resellers, information about alternative offers in the marketplace, and use criticizing or commenting upon trademarked products.
As a result, consumers would receive less diverse information on goods and services and the free movement of goods and services in the internal market would be curtailed. The reliability of the internet as an independent source of trademark-related information would be put at risk. The analysis, thus, leads to the insight that a proliferation of the new filtering obligations in copyright law is undesirable and should be avoided.},
note = {Chapter in: Oxford Handbook of Online Intermediary Liability, G.F. Frosio (ed.), Oxford: Oxford University Press.},
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CIPIL Evening Webinar: 'Article 17 and the New EU Rules on Content-Sharing Platforms'

Quintais, J.

2020.

@online{Quintais2020d,
title = {CIPIL Evening Webinar: 'Article 17 and the New EU Rules on Content-Sharing Platforms' },
author = {Quintais, J.},
url = {https://youtu.be/f1tGV_IdueQ },
year = {2020},
date = {2020-11-17},
abstract = {This presentation addresses the hottest topic in EU copyright law and policy: Article 17 of the new Copyright in the Digital Single Market (CDSM) Directive (2019/790). The CDSM Directive is the culmination of a controversial political and legislative process at EU level. None of its provisions has caused greater debate than Article 17, which introduces a new liability regime for "online content-sharing service providers". These include most user-generated content platforms hosting copyright-protected content accessed daily by millions of individuals in the EU and across the globe. Even before the CDSM Directive is implemented into national law, the issues surrounding Article 17 have already spilled out to the policy and judicial arenas. At the policy level, the debates taking place in a number of Commission-led Stakeholder Dialogues have laid bare many of the unresolved challenges ahead for national legislators and courts. At the judicial level, the Polish government has filed an action for annulment with the CJEU under Article 263 TFEU, focusing on the most problematic aspects of Article 17. This presentation will first place Article 17 into its broader EU policy context of the discussion on the responsibilities of online platforms \textendash from the agenda on "Tackling Illegal Content Online" to the Digital Services Act \textendash and the narrow copyright context regarding the liability of intermediary platforms for third-party content they host. This will be followed by an explanation of the complex mechanics of Article 17 and an identification of some of its fundamental problems. Finally, some tentative proposals will be advanced for how to begin to address such problems, focusing on the core issues of licensing mechanisms and fundamental rights safeguards.},
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pubstate = {published},
tppubtype = {online}
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WODC-onderzoek: Voorziening voor verzoeken tot snelle verwijdering van onrechtmatige online content

Appelman, N., Blom, T., van Duin, A., Fahy, R., Helberger, N., Steel, M., Stringhi, E., van Hoboken, J., Zarouali, B.

2020.

CJEU hearing in the Polish challenge to Article 17: Not even the supporters of the provision agree on how it should work

Keller, P.

Annotatie bij Rb. Den Haag 5 februari 2020 (NJCM c.s. / Staat der Nederlanden - SyRI-wetgeving)

Nederlandse Jurisprudentie, (45), pp. 6792-6795, 2020.

News Recommenders and Cooperative Explainability: Confronting the contextual complexity in AI explanations

Appelman, N., Ausloos, J., Drunen, M. van, Helberger, N.

2020.

Angelopoulos, C., Senftleben, M.

The Odyssey of the Prohibition on General Monitoring Obligations on the Way to the Digital Services Act: Between Article 15 of the E-Commerce Directive and Article 17 of the Directive on Copyright in the Digital Single Market

2020, (Amsterdam: Institute for Information Law & Cambridge: Centre for Intellectual Property and Information Law).

@techreport{Senftleben2020e,
title = {The Odyssey of the Prohibition on General Monitoring Obligations on the Way to the Digital Services Act: Between Article 15 of the E-Commerce Directive and Article 17 of the Directive on Copyright in the Digital Single Market},
author = {Senftleben, M. and Angelopoulos, C.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3717022},
year = {2020},
date = {2020-10-29},
abstract = {EU law provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content \textendash no matter how specifically it is defined \textendash must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature. Against this background, a content moderation duty can only be deemed permissible if it is specific in respect of both the protected subject matter and potential infringers.

This requirement of 'double specificity' is of particular importance because it prevents encroachments upon fundamental rights. The jurisprudence of the Court of Justice of the European Union has shed light on the anchorage of the general monitoring ban in primary EU law, in particular the right to the protection of personal data, the freedom of expression and information, the freedom to conduct a business, and the free movement of goods and services in the internal market. Due to their higher rank in the norm hierarchy, these legal guarantees constitute common ground for the application of the general monitoring prohibition in secondary EU legislation, namely Article 15(1) of the E-Commerce Directive ('ECD') and Article 17(8) of the Directive on Copyright in the Digital Single Market ('CDSMD').

With regard to the Digital Services Act (‘DSA’), this result of the analysis implies that any further manifestation of the general monitoring ban in the DSA would have to be construed and applied \textendash in the light of applicable CJEU case law \textendash as a safeguard against encroachments upon the aforementioned fundamental rights and freedoms. If the final text of the DSA does not contain a reiteration of the prohibition of general monitoring obligations known from Article 15(1) ECD and Article 17(8) CDSMD, the regulation of internet service provider liability, duties of care and injunctions would still have to avoid inroads into the aforementioned fundamental rights and freedoms and observe the principle of proportionality. The double specificity requirement plays a central role in this respect.},
note = {Amsterdam: Institute for Information Law & Cambridge: Centre for Intellectual Property and Information Law},
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pubstate = {published},
tppubtype = {techreport}
}

EU law provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content – no matter how specifically it is defined – must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature. Against this background, a content moderation duty can only be deemed permissible if it is specific in respect of both the protected subject matter and potential infringers.

This requirement of 'double specificity' is of particular importance because it prevents encroachments upon fundamental rights. The jurisprudence of the Court of Justice of the European Union has shed light on the anchorage of the general monitoring ban in primary EU law, in particular the right to the protection of personal data, the freedom of expression and information, the freedom to conduct a business, and the free movement of goods and services in the internal market. Due to their higher rank in the norm hierarchy, these legal guarantees constitute common ground for the application of the general monitoring prohibition in secondary EU legislation, namely Article 15(1) of the E-Commerce Directive ('ECD') and Article 17(8) of the Directive on Copyright in the Digital Single Market ('CDSMD').

With regard to the Digital Services Act (‘DSA’), this result of the analysis implies that any further manifestation of the general monitoring ban in the DSA would have to be construed and applied – in the light of applicable CJEU case law – as a safeguard against encroachments upon the aforementioned fundamental rights and freedoms. If the final text of the DSA does not contain a reiteration of the prohibition of general monitoring obligations known from Article 15(1) ECD and Article 17(8) CDSMD, the regulation of internet service provider liability, duties of care and injunctions would still have to avoid inroads into the aforementioned fundamental rights and freedoms and observe the principle of proportionality. The double specificity requirement plays a central role in this respect.

Appelman, N., Fahy, R.

Netherlands/Research

pp. 164-175, 2020, (Chapter in: Report Automating Society 2020, Chiusi, F., Fischer, S., Kayser-Bril, N. & Spielkamp, M. eds., Berlin: AlgorithmWatch, October 2020.).

Evaluatie Wet Auteurscontractenrecht: Eindrapport

Hugenholtz, P., Poort, J., Schumacher, L.D., van Gompel, S., Visser, D.

2020.

Annotatie bij HvJ EU 29 juli 2019, C-469/17 (Funke), C-516/17 (Spiegel) & C-4476/17 (Pelham)

Hugenholtz, P.

Nederlandse Jurisprudentie, (43), pp. 6068-6073, 2020.

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

Senftleben, M.

Florida International University Law Review, 14 (2), pp. 299-328, 2020.

@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
https://ecollections.law.fiu.edu/lawreview/vol14/iss2/11/},
doi = {10.25148/lawrev.14.2.11},
year = {2020},
date = {2020-10-20},
journal = {Florida International University Law Review},
volume = {14},
number = {2},
pages = {299-328},
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 = {published},
tppubtype = {article}
}

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.

Robot Creativity: An Incentive-Based Neighbouring Rights Approach

Buijtelaar, L.D., Senftleben, M.

European Intellectual Property Review, 42 (12), Forthcoming.

Transparency Rules in Online Political Advertising: Mapping Global Law and Policy

Ausloos, J., Leerssen, P., Menezes Cwajg, C.

2020, (This report has been prepared by Carolina Menezes Cwajg. It was written under the academic guidance of Dr. Jef Ausloos and Paddy Leerssen, at IViR and the Information, Communication & the Data Society (ICDS) Initiative at the University of Amsterdam.).