Ongoing advances in artificial intelligence (AI) are increasingly part of scientific efforts as well as the public debate and the media agenda, raising hopes and concerns about the impact of automated decision making across different sectors of our society. This topic is receiving increasing attention at both national and cross- national levels. The present report contributes to informing this public debate, providing the results of a survey with 958 participants recruited from high-quality sample of the Dutch population. It provides an overview of public knowledge, perceptions, hopes and concerns about the adoption of AI and ADM across different societal sectors in the Netherlands. This report is part of a research collaboration between the Universities of Amsterdam, Tilburg, Radboud, Utrecht and Eindhoven (TU/e) on automated decision making, and forms input to the groups’ research on fairness in automated decision making.
Chapter in: Digital Dominance: The Power of Google, Amazon, Facebook, and Apple, ed. M. Moore & D. Tambini, New York: Oxford University Press, 2018.
In recent years, we have been witnessing a fundamental shift in the form how news and current affairs are disseminated and mediated. Due to the exponential increase in available content online and technological development in the field of recommendation systems, more and more citizens are informing themselves through customized and curated sources, while turning away from mass-mediated information sources like TV news and newspapers. Algorithmic recommendation systems provide news users with tools to navigate the information overload and identify important and relevant information. They do so by performing a task that was once a key part of the journalistic profession: keeping the gates. In a way, news recommendation algorithm can create highly individualized gates, through which only information and news fit that serves the user best. In theory, this is a great achievement that can make news exposure more efficient and interesting. In practice, there are many pitfalls when the power to select what we hear from the news shifts from professional editorial boards that select the news according to professional standards to opaque algorithms who are reigned by their own logic, the logic of advertisers or consumes personal preferences.
In this article, we discuss mHealth apps and their potential to influence the user’s behaviour in increasingly persuasive ways. More specifically, we call attention to the fact that mHealth apps often seek to not only influence the health behaviour of users but also their economic behaviour by merging health and commercial content in ways that are hard to detect. We argue that (1) such merging of health and commercial content raises specific questions concerning the autonomy of mHealth app users, and (2) consumer law offers a promising legal lens to address questions concerning user protection in this context. Based on an empirically informed ethical analysis of autonomy, we develop a fine-grained framework that incorporates three different requirements for autonomy that we call “independence,” “authenticity,” and “options.” This framework also differentiates between three different stages of mHealth app use, namely installing, starting to use, and continuing to use an app. As a result, user autonomy can be analysed in a nuanced and precise manner. Since the concept of autonomy plays a prominent, yet poorly understood role in unfair commercial practice law, we utilize the ethical analysis of autonomy to guide our legal analysis of the proper application of unfair commercial practice law in the mHealth app domain.
This article provides a more differentiated understanding of mobile health consumers, and considers whether health app use may contribute to new digital inequalities. It focuses on factors associated with mobile health app use, and identifies which factors explain the use of different types of health apps. Data from a large representative sample of the Dutch population (N = 1,079) show that mobile health app users were generally younger, higher educated, and had higher levels of e-health literacy skills than non-users. Interestingly, different usage patterns were found for specific types of health apps. Theory and policy implications are discussed.
In the debate about filter bubbles caused by algorithmic news recommendation, the conceptualization of the two core concepts in this debate, diversity and algorithms, has received little attention in social scientific research. This paper examines the effect of multiple recommender systems on different diversity dimensions. To this end, it maps different values that diversity can serve, and a respective set of criteria that characterizes a diverse information offer in this particular conception of diversity. We make use of a data set of simulated article recommendations based on actual content of one of the major Dutch broadsheet newspapers and its users (N=21,973 articles, N=500 users). We find that all of the recommendation logics under study proved to lead to a rather diverse set of recommendations that are on par with human editors and that basing recommendations on user histories can substantially increase topic diversity within a recommendation set.
Political micro-targeting (PMT) has become a popular topic both in academia and in the public discussions after the surprise results of the 2016 US presidential election, the UK vote on leaving the European Union, and a number of general elections in Europe in 2017. Yet, we still know little about whether PMT is a tool with such destructive potential that it requires close societal control, or if it’s “just” a new phenomenon with currently unknown capacities, but which can ultimately be incorporated into our political processes. In this article we identify the points where we think we need to further develop our analytical capacities around PMT. We argue that we need to decouple research from the US context, and through more non-US and comparative research we need to develop a better understanding of the macro, meso, and micro level factors that affect the adoption and success of PMTs across different countries. One of the most under-researched macro-level factors is law. We argue that PMT research must develop a better understanding of law, especially in Europe, where the regulatory frameworks around platforms, personal data, political and commercial speech do shape the use and effectiveness of PMT. We point out that the incorporation of such new factors calls for the sophistication of research designs, which currently rely too much on qualitative methods, and use too little of the data that exists on PMT. And finally, we call for distancing PMT research from the hype surrounding the new PMT capabilities, and the moral panics that quickly develop around its uses.
Political campaigns increasingly use data to (micro)target voters with tailored messages. In doing so, campaigns raise concerns about privacy and the quality of the public discourse. Extending existing research to a European context, we propose and test a model for understanding how different contextual factors hinder or facilitate data-driven capabilities of campaigns. We applied the model during the 2017 national election campaign in the Netherlands. The results show how data-driven targeting techniques are not only useful in a first-past-the-post system, but also in a proportional representation system, which at first sight seems to be less suitable for such techniques.
Online platforms, from Facebook to Twitter, and from Coursera to Uber, have become deeply involved in a wide range of public activities, including journalism, civic engagement, education, and transport. As such, they have started to play a vital role in the realization of important public values and policy objectives associated with these activities. Based on insights from theories about risk sharing and the problem of many hands, this article develops a conceptual framework for the governance of the public role of platforms, and elaborates on the concept of cooperative responsibility for the realization of critical public policy objectives in Europe. It argues that the realization of public values in platform-based public activities cannot be adequately achieved by allocating responsibility to one central actor (as is currently common practice), but should be the result of dynamic interaction between platforms, users, and public institutions.
More and more news is personalised, based on our personal data and interests. As a result, the focus of media regulation moves from the news producer to the news recipient. This research asks what the fundamental right to receive information means for personalised news consumers and the obligation it imposes on states. However, the right to receive information is under-theorised. Therefore, we develop a framework to understand this right, starting from case law of the European Court of Human Rights. On this basis, we identify five perspectives on the right to receive information: political debate, truth finding, social cohesion, avoidance of censorship and self-development. We evaluate how news personalisation affects the right to receive information, considering these five different perspectives. Our research reveals important policy choices that must be made regarding personalised news considering news consumers’ rights.
On the internet, we encounter take-it-or-leave-it choices regarding our privacy on a daily basis. In Europe, online tracking for targeted advertising generally requires the internet users’ consent to be lawful. Some websites use a tracking wall, a barrier that visitors can only pass if they consent to tracking by third parties. When confronted with such a tracking wall, many people click ‘I agree’ to tracking. A survey that we conducted shows that most people find tracking walls unfair and unacceptable. We analyse under which conditions the ePrivacy Directive and the General Data Protection Regulation allow tracking walls. We provide a list of circumstances to assess when a tracking wall makes consent invalid. We also explore how the EU lawmaker could regulate tracking walls, for instance in the ePrivacy Regulation. It should be seriously considered to ban tracking walls, at least in certain circumstances.
Draft version. Final version published in Common Market Law Review, 2017, nr. 5, p. 1427-1466.
In modern markets, many companies offer so-called “free” services and monetize consumer data they collect through those services. This paper argues that consumer law and data protection law can usefully complement each other. Data protection law can also inform the interpretation of consumer law. Using consumer rights, consumers should be able to challenge excessive collection of their personal data. Consumer organizations have used consumer law to tackle data protection infringements. The interplay of data protection law and consumer protection law provides exciting opportunities for a more integrated vision on “data consumer law”.
Algorithmic agents permeate every instant of our online existence. Based on our digital profiles built from the massive surveillance of our digital existence, algorithmic agents rank search results, filter our emails, hide and show news items on social networks feeds, try to guess what products we might buy next for ourselves and for others, what movies we want to watch, and when we might be pregnant. Algorithmic agents select, filter, and recommend products, information, and people; they increasingly customize our physical environments, including the temperature and the mood. Increasingly, algorithmic agents don’t just select from the range of human created alternatives, but also they create. Burgeoning algorithmic agents are capable of providing us with content made just for us, and engage with us through one-of-a-kind, personalized interactions. Studying these algorithmic agents presents a host of methodological, ethical, and logistical challenges. The objectives of our paper are two-fold. The first aim is to describe one possible approach to researching the individual and societal effects of algorithmic recommenders, and to share our experiences with the academic community. The second is to contribute to a more fundamental discussion about the ethical and legal issues of “tracking the trackers”, as well as the costs and trade-offs involved. Our paper will contribute to the discussion on the relative merits, costs and benefits of different approaches to ethically and legally sound research on algorithmic governance. We will argue that besides shedding light on how users interact with algorithmic agents, we also need to be able to understand how different methods of monitoring our algorithmically controlled digital environments compare to each other in terms of costs and benefits. We conclude our article with a number of concrete suggestions for how to address the practical, ethical and legal challenges of researching algorithms and their effects on users and society.
Blogpost at Internet Policy Review: Journal of internet regulation
Personalized recommendations in search engines, social media and also in more traditional media increasingly raise concerns over potentially negative consequences for diversity and the quality of public discourse. The algorithmic filtering and adaption of online content to personal preferences and interests is often associated with a decrease in the diversity of information to which users are exposed. Notwithstanding the question of whether these claims are correct or not, this article discusses whether and how recommendations can also be designed to stimulate more diverse exposure to information and to break potential ‘filter bubbles’ rather than create them. Combining insights from democratic theory, computer science and law, the article makes suggestions for design principles and explores the potential and possible limits of ‘diversity sensitive design’.
Beleidsmakers, wetenschappers en anderen vrezen dat gepersonaliseerd nieuws kan leiden tot filter bubbles, unieke informatieruimtes voor iedereen. Filter bubbles zouden een gevaar vormen voor onze democratie. Op basis van de politieke voorkeuren van een gebruiker kan een gepersonaliseerde nieuwssite bepaalde onderwerpen of meningen bijvoorbeeld een meer of minder prominente plek geven. Er wordt gedacht dat personalisatie tot een nieuwe vorm van verzuiling kan leiden, waarbij gebruikers van online gepersonaliseerd nieuws weinig verschillende politieke ideeën tegenkomen. In deze bijdrage bespreken we empirisch onderzoek naar de omvang en effecten van personalisatie. Hierbij onderscheiden we zelfgeselecteerde personalisatie, waarbij mensen expliciet aangeven over welke onderwerpen zij informatie willen ontvangen, en vooraf geselecteerde personalisatie, waarbij algoritmes bepalen over welke onderwerpen gebruikers informatie ontvangen. We concluderen dat er tot nu toe weinig empirisch bewijs is dat de zorgen over filter bubbles rechtvaardigt.
LSE blog, 26 May 2016.
Facebook's use of human editors may bring comfort to some, but there are wider issues to do with editorial responsibility that need to be addressed.
Some fear that personalised communication can lead to information cocoons or filter bubbles. For instance, a personalised news website could give more prominence to conservative or liberal media items, based on the (assumed) political interests of the user. As a result, users may encounter only a limited range of political ideas. We synthesise empirical research on the extent and effects of self-selected personalisation, where people actively choose which content they receive, and pre-selected personalisation, where algorithms personalise content for users without any deliberate user choice. We conclude that at present there is little empirical evidence that warrants any worries about filter bubbles.
In: <em>Digital Revolution: Challenges for Contract Law in Practice</em>, R. Schulze & D. Staudenmayer (eds.), Baden Baden: Nomos, p. 135-161.
Personalized recommendations provide new opportunities to engage with audiences and influence media choices. Should the public-service media use such algorithmic profiling and targeting to guide audiences and stimulate more diverse choices? And if they do, is this a brave new world we would like to live in? This article outlines new opportunities for the public-service media to fulfill their commitment to media diversity and highlights some of the ethical and normative considerations that will play a role. The article concludes with a call for a new body of “algorithmic media ethics.”
Interview in Het Parool van 2 januari 2015 over veranderende positie van de social media gebruiker.
Interview verschenen in het Financieel Dagblad van 29 november 2014.
Rede uitgesproken bij de aanvaarding van het ambt van hoogleraar Informatierecht, in het bijzonder met betrekking tot het gebruik van informatie, aan de Faculteit der Rechtsgeleerdheid van de Universiteit van Amsterdam op vrijdag 19 september 2014.
In the digital media environment user attention is scarce and competition for ‘eyeballs’ is fierce. Profiling and targeting users with customized news and advertisements is widely seen as a solution, and part of a larger trend to invest in what the New York Times has called ‘smart new strategies for growing our audience’. The shift from public information intermediary to personal information service creates new dynamics but also new imbalances in the relationship between the media and their users. In my inaugural speech I will state that to restore the balance, the media and regulators in Brussels and The Hague need to develop a vision of how to deal with issues such as media user privacy, editorial integrity and more generally ‘fair algorithmic media practices’."
20 January 2014.
Study commissioned by BEUC, the European Consumer Organisation, September 2013.
This study examines what lessons can be learned from behavioural research for the form in which consumer information is being presented. The argument that this study makes is that the form in which information is presented and the effective communication of such information is at least as important as its content, and that this is an aspect that is still generally neglected in information and consumer law. The study is particularly interested in the potential of digital technologies in making consumer information more effective, and new approaches to form requirements in areas in which the importance of effective communication has already been acknowledged, such as in communications law. The study concludes with concrete suggestions for the future design of transparency requirements in information law and policy.
Conference paper accepted at MIT 8 Public Media Private Media Conference, Boston, 3-5 May 2013.
Annotatie bij Hof van Justitie 3 juli 2012.
This book provides a critical analysis of how digitisation affects established concepts and policies in consumer law. Based on evidence of the actual experience and problems encountered by consumers in digital markets, the book offers a ground-breaking study of the main issues arising in relation to the application of general consumer and sector-specific law. An interdisciplinary team of researchers from the Centre for the Study of European Contract Law (CSECL) and the Institute for Information Law (IViR), both University of Amsterdam, combine their expertise in general consumer and contract law, telecommunications law, media law, copyright law and privacy law in a joint effort to point the way to a truly cohesive European Framework for Digital Consumers and the Law. Topics in this book include the characteristics of digital content markets and how they relate to traditional consumer law; consumer concerns, reasonable expectations and how they are protected by law; the difficult question of the classification of digital content; legal questions triggered by prosumers and underage consumers; the feasibility and future of the information approach to consumer protection; the role of fundamental rights considerations, and the legal implications of an economy that uses personal data as the new currency. Digital Consumers and the Law is an important analysis for all those interested or involved in the regulation of digital content markets. With its comprehensive discussion of a wide range of fundamental as well as praxis-oriented questions, it is an essential read for academics, policy makers, members of the content industry as well as consumer representatives.
TNO-rapport, 2012 R11277.
In digital content markets, access to and use of digital content products are largely subject to contractual agreements and licensing conditions between suppliers and consumers. The fact that consumers acquire digital content by way of contractual arrangements implies that their relationship with the suppliers of these products is governed by two sets of rules: consumer law and copyright law. Attempts to integrate copyright and consumer law and policy and to accommodate the interests of the consumer of copyright protected content soon encounter conceptual and political challenges. The question that this article examines is what the main conceptual differences between consumer and copyright law, and the resulting ‘‘clash of cultures’’ are that need to be overcome before dealing successfully with copyright law related matters in consumer law.
The application of consumer law to digital content contracts encounters a number of obstacles. Some of these are rather typical for digital content markets, e.g., the legal consequences of the classification of digital content as “goods” or “services” and, more importantly, the absence of general benchmarks to evaluate the conformity of digital content. Other problems, such as the limited usefulness of consumer information and the position of underage consumers, are not as such reserved to digital consumers, but they are amplified in the digital content markets. Moreover, particular attention is paid to the complex relationship between copyright law and consumer law. This paper explores the extent to which consumer (contract) law is fit to address the problems faced by digital consumers wishing to enjoy the benefits of digital content and examines whether the on-going initiatives at national and European level are likely to provide relief. Finally, recommendations for improvement are put forward in cases where the analysis shows that the problems identified are not or are insufficiently solved by these initiatives.
Met Scarlet/Sabam heeft het Hof van Justitie een belangrijke uitspraak gedaan over de juiste balans in de handhaving van intellectuele eigendomsrechten op internet en zorgplichten van ISPs. Meer concreet gaat het over het controversiële gebruik van internet monitoring en filters door ISPs voor het verkeer van hun klanten in de 'strijd tegen piraterij'. De discussie rond de handhaving van auteursrechtschendingen op het internet en de betrokkenheid van ISPs is buitengewoon actueel, ook met het oog op een aantal recente ontwikkelingen in Europa, waaronder de aanvulling van delen uit de E-Commerce Richtlijn. Dit artikel plaatst de uitspraak in zijn grotere politieke context en biedt een aantal kritische reflecties.
In December 2010 a roundtable expert workshop was held at the Institute for Information Law under the title "Media Diversity from the User Perspective". The goal of the workshop was to develop a user-centric understanding of media diversity, and to reflect upon the adequate regulatory responses. It brought together selected experts from different disciplines (law, communications, social sciences, philosophy) who all share an interest in the audience perspective on diversity, and whose research has approached the subject from different angles. This article attempts to summarize some of the main arguments that were made during the discussions, the different views that were expressed by the experts, and the questions for which the experts felt that additional research was needed.
Report 1: Country reports, Centre for the Study of European Contract Law (CSECL) & Institute for Information Law (IViR), 2012.
The Centre for the Study of European Contract Law (CSECL) and the Institute for Information Law (IViR) were commissioned by the European Commission to conduct a study on digital content services for consumers. This report contains the country reports of 9 Member States - Finland, France, Germany, Hungary, Italy, The Netherlands, Poland, Spain and the United Kingdom - and two legal systems from outside the EU, i.e. Norway and the United States. The country reports contain the responses of national experts to a questionnaire developed by the CSECL and the IViR.
How do you get citizens/media consumers to voluntarily choose to expose themselves to diverse content? Is there a role for government in helping people make diverse choices? Professor Helberger addresses these questions by suggesting "diversity by design" as an antidote to the ironic fact that broadband media abundance actually makes it more difficult for users to choose diversely. She presents four conceptualizations of diversity policy: marketplace of ideas ("external diversity"); public sphere ("internal diversity"); personal autonomy ("individual choice"); and random exposure ("serendipity"), and suggets concrete design principles to guide regulators in implementing them. However, she notes, in the end it remains for the user to decide.
The past decade has shown a rapid development of the markets for digital content. The further development of these markets, however, may be hindered because of the lack of a functioning legal framework to deal with digital content contracts. In this article, it is argued that the future Optional Instrument should contain rules governing digital content contracts. Moreover, suggestions are made as to the content of such rules.
Final report, comparative analysis, law & economics analysis, assessment and development of recommendations for possible future rules on digital content contracts.
Zie voor meer informatie ook de<a href="http://ec.europa.eu/justice/newsroom/consumer-marketing/events/digital_conf_en.htm"><span style="color:#b22222;"> website</span></a> van de Europese Commissie.
The paper aims to report the main findings of a study for the Dutch Regulatory Authority for the Telecommunications sector OPTA to explore how the new European "cookie rules" in the ePrivacy Directive impact on behavioral advertising practices via the storing and reading of cookies. The paper identifies the main dilemmas with the implementation of the new European rules. The Dutch case provides a valuable reality check also outside The Netherlands. Even before the amendment of the directive, The Netherlands already had an opt-in system in place. From the Dutch experience important lessons can be learned also for other European countries.
TNO-rapport nr. 35473, in opdracht van OPTA, 28 februari 2011. Zie ook het persbericht en de Management Summary (in het Engels). Zie ook de reactie van TNO/IViR aan de leden van de Commissie Economische Zaken, Landbouw en Innovatie, op de branchereactie van 18 maart 2011.
Door een aanscherping van de Europese e-Privacyrichtlijn is bij het plaatsen van cookies, die bijvoorbeeld worden gebruikt om het surfgedrag van internetgebruikers te volgen, vooraf toestemming van de gebruiker nodig (en die dient gebaseerd te zijn op een geïnformeerde keuze). Deze aanscherping op Europees niveau (Nederland kent al een bepaling op grond waarvan cookies kunnen worden geweigerd) heeft geleid tot een brede discussie over de uitvoerbaarheid en de wijze van toezicht op de regelgeving omtrent cookies. Eind mei moet de richtlijn in nationale wetgeving zijn geïmplementeerd. Een wetsvoorstel daartoe ligt nu bij de Tweede Kamer. Ter voorbereiding heeft OPTA aan TNO en IViR gevraagd te onderzoeken wat de nieuwe juridische situatie in de praktijk betekent.
This article argues that the instances in which amateur users will fall under the ambit of data protection law are not the exception, but rather the rule. Based on an analysis of the provisions of the European Data Protection Directive, the article demonstrates that existing data protection law burdens amateur users with provisions that exceed the personal, technical and financial capacities of most Social Network Sites (SNS) users, that do no fit the SNS context or that users are simply not able to comply with without assistance from the SNS provider. While it is unacceptable to burden amateurs with a number of obligations that exceed their capacities, it is also not feasible to place all the burdens on SNS providers, since many of the privacy problems of SNSs are in fact user-made. All this points to a concept of joint-responsibility of SNS users and providers. The article concludes with a number of concrete suggestions on how such a concept of joint responsibility could be given form.
The potential of user created content to make a meaningful contribution to media diversity is subject to debates. Central to these debates is the argument of the quality of amateur productions. This article will take a close look at this argument, and make some suggestions on how to improve the quality and utility of amateur productions with regard to the democratic functions of media.
Studie in opdracht van de Europese Commissie, uitgevoerd door IDATE, TNO en IViR.
Hoofdstuk 1: The European Concern with Copyright and Related Rights;
Hoofdstuk 9:The Last Frontier: Territoriality;
Nobody likes today’s copyright law. Widespread unauthorized use of copyright material proliferates with impunity, while citizens and users protest that intrusive copyright and related rights law stifle cultural expression. Equipment manufacturers and intermediaries complain about yet more ’security’ features that complicate their products and services and encumber marketing, while content owners desperately want enforcement to work. And of course it is crucial that whatever regulatory instruments come into play must not age prematurely in Internet time. The European Union faces the daunting challenge of articulating coherent copyright policies that satisfy these contradictory multiple demands. Yet the legal framework must conform to the European Union’s remit of fostering economic growth in a common market, while respecting the national traditions of its still growing family of Member States. Clearly, an extraordinary balancing act is called for if justice is to be done to all of the private and public interests affected. So how has the European acquis communautaire scored on these issues so far? In this groundbreaking study the Institute for Information Law of the University of Amsterdam brings its extensive academic expertise to bear on this question. The authors scrutinize the present law as laid down in the seven copyright and related rights directives, against the background of the relevant international standards of the Berne Convention, the TRIPs agreement, and the WIPO Internet Treaties. They map out in detail the degree to which certain areas of copyright have been harmonized as they expose the gaps and inconsistencies in the acquis and the urgent unresolved issues that persist. They identify the EU’s ambitions in relation to its present and future competences (following the Lisbon Reform) to regulate copyright, and to its Better Regulation agenda. Following a comprehensive analysis of almost two decades of regulatory intervention, they move on to the salient current trends that point toward a more coherent and balanced European copyright law.
Onderzoek door een consortium van TNO Informatie- en Communicatietechnologie, SEO Economisch Onderzoek en het Instituut Voor Informatierecht, in opdracht van de ministeries van OCW, EZ en Justitie, februari 2009.
Onderzoek door een consortium van TNO Informatie- en Communicatietechnologie, SEO Economisch Onderzoek en het Instituut Voor Informatierecht, in opdracht van de ministeries van OCW, EZ en Justitie, januari 2009.
This article critically examines the arguments put forward in favour of a term extension of related rights of phonogram producers. The authors conclude that there are no convincing reasons to extend the existing term of protection. The article also explains why the popular argument that a term extension would improve the situation of performers is probably a fallacy.
This article examines the intersection between copyright law and consumer law relating to private copying in Europe. In doing so, we will query the effectiveness of copyright law and consumer law as legal instruments to protect consumers in their dealings with information suppliers. Our goal is to demonstrate that while copyright law in Europe does offer a measure of comfort to consumers, the legal instruments of European consumer law are potentially more effective in achieving the freedom to make private copies that European consumers generally expect.
Legal Aspects of Video on Demand: 3http://www.obs.coe.int/oea_publ/iris_special/2007_02_details.html
The changing role of users of audiovisual services might eventually shake the very base of traditional media policy. It is early days yet. It is certainly not too early, however, to become aware of changes and muse about possible implications for media law and policy. The objective of this article is to scrutinize some aspects of traditional government involvement with audiovisual media from the perspective of the changing role of the users. Aspects that will be discussed include the justification for government intervention in the first place, the image of the user, the character of intervention and the new issues that are likely to play a role in future media law and policy. The point of reference will be the revised proposal for a Directive on the Regulation of Audiovisual Media Services.
European communications and competition policy has a tradition on access obligations as primary tool to discipline exclusive control over so called bottleneck facilities. In the 2007 Communication on the Review of the European Communications Framework, the European Commission stressed once more the importance of access rules as a tool to realize consumer welfare, competition and user rights, notably the right for users to access and distribute lawful content. This article will place some critical reflections on access obligations. Using the example of bottlenecks in digital broadcasting, it will show that access obligations that were successfully applied to traditional bottleneck situations are not necessarily the best or effective way of guaranteeing openness of the digital service market. The example of digital broadcasting is for many reasons interesting.
Rapport aan de Europese Commissie, DG Interne Markt, februari 2007. Zie ook Part II: Country Reports on the Implementation of Directive 2001/29/EC in the Member States, G. Westkamp, Queen Mary Intellectual Property Research Institute, februari 2007.
This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is "to assess the role that the Directive has played in fostering the digital market for goods and services in the four years since its adoption". The impact of the Directive on the development of digital (chiefly online) business models, therefore, will be the focal point of our enquiry throughout this study.
Briefing Note, European Parliament's Committee on Internal Market and Consumer Protection, januari 2007.
Technological progress and the internet bring the promise of an Internal Market for electronic services closer than ever into the reach of Europe's citizens. Yet, while European and national policies are committed to removing government-made obstacles to the free movement of services, some e-commerce businesses use technology to actually re-introduce territorial barriers. The goal of this briefing paper is to provide a first overview of the motives of e-commerce businesses to engage in territorial differentiation, to examine whether territorial differentiation can result in a serious distortion of the Internal Market and to make recommendations what measures should be taken to remove barriers that prevent consumers from buying goods and services on-line throughout the Internal Market.
Rapport aan de Europese Commissie, DG Interne Markt, november 2006, 308 p.
Zie ook de executive summary.
Study carried out by the Institute for Information Law for the European Commission (DG Internal Market). Chapters 1 and 2 describe and examine the existing 'acquis communautaire' in the field of copyright and related (neighbouring) rights, with special focus on inconsistencies and unclarities. Chapters 3-6 deal with distinct issues that were identified a priori by the European Commission as meriting special attention: possible extension of the term of protection of phonograms (Chapter 3), possible alignment of the term of protection of co-written musical works (Chapter 4), the problems connected to multiple copyright ownership, including the issue of 'orphan works' (Chapter 5), and copyright awareness among consumers (Chapter 6). Chapter 7 provides an overall assessment of the benefits and drawbacks of the fifteen years of harmonisation of copyright and related rights in the EU and dwells on regulatory alternatives.
France is one of the European countries where a particularly vivid public discussion about DRM and the private copying exception took place. This is thanks to the efforts of French consumer organisations taht initiated a number of court cases dealing with complaints of consumers about CDs and DVDs that could, among others, not be copied and ripped because of technical protection measures in place. This article discusses that latest DRM decision in France, a decision that went one step further than its predecessors when dealing with the difficult question of the relationship between DRM and private copying.
This article reports about the French implementation of the famed Article 6 (4) of the European Copyright Directive, the article that orders member states to guarantee that consumers can benefit from exceptions despite the application of technological protection measures. Considering the fact that France is the origin of a series of groundbreaking decisions in favour of a balance between DRM use and consumer interests, figuring prominently among them the private copyying exception, and all the public discussion those cases triggered, we have all reason to be curious about what the French legislator will come up with.
As a result of modern content management technologies, individualisation, differentiation and conditioned access step into the place of traditional models of broad-casting content. In the light of these developments, the article provides a critical analysis of the proposals that were made to revise the Television Without Frontiers Directive and to protect “the right to information” of the broadcasting audience. The article will show that instead of modernizing the European broadcasting framework the proposals are focused on maintaining the status quo of an analogue past. It will make an argument in favor of a more viewer-oriented approach.
The article will have a closer look at the charges of the EFF and a Californian lawyer against Sony BMG's latest DRM strategy. The Sony BMG case adds a number of new dimensions to the DRM and Consumer debate. The article will highlight some aspects, also against the background of similar recent case law in Europe.
The purpose of this article is to consider the impact of DRM on people's use of digital content and on its availability and accessibility for consumers. It describes the area of conflict between the economic interest of the media industry to use DRM to protect rights to and marketing of digital content, and consumers' desire to use digital content in accordance with their own rights and legitimate interests without suffering any unfavourable consequences as they do so. The article explains why the current approach, where DRM is considered to be exclusively a copyright issue, is too narrow. It lists a series of equally important individual or informational interests which must be respected, linking DRM to the protection of consumers and access to digital content. The article makes some suggestions how this theme might be usefully dealt with in the future.
Apple's tight control over the FairPlay DRM system has caused many iPod users to complain that they cannot play certain files on their iPod, namely the files they bought from other online services, using a different DRM system. The proprietary control over FairPlay is also a thorn in the flesh of iTunes rivals who sought various ways to get around FairPlay's lack of interoperability. The French enterprise VirginMega tried it the legal way and so did it come that Apple's FairPlay was probably also the first case in which a competition authority in Europe had to decide if access to a Digital Rights Management system can be enforced on grounds of competition law.
The decision of the French court in Paris in the so-called Mulholland case has left a sour after-taste since. Could it be true that the privat copying exception, a long standing tradition in many national copyright laws, was in fact not much more than a toothless paper tiger? When we reported about this case we expressed our disbelief that this should have been the end of the private copying exception. And indeed, as the Court of Appeals has recently decided, the tiger may be made of paper, but it still has its teeth.
Zie ook de samenvatting van het proefschrift:
Control of access to content has become a vital aspect of many business models for modern broadcasting and online services. Using the example of digital broadcasting, the author reveals the resulting challenges for competition and public information policy and how they are addressed in European law governing competition, broadcasting, and telecommunications. Controlling Access to Content explores the relationship between electronic access control, freedom of expression and functioning competition. It scrutinizes the interplay between law and technique, and the ways in which broadcasting, telecommunications, and general competition law are inevitably interconnected.
State of the Art Report - First Supplement, mei 2005.
The purpose of this study is to provide an overview of certain key aspects of the relationship between copyright law and consumer protection. More particularly, the paper concentrates on what would appear today as the most problematic issue, from the perspective of the consumer, understood in the narrow sense of the word, namely the implementation of technological protection measures (TPM) and digital rights management (DRM) systems and its implication for the exercise of the private use exemption.
Achtergrondstudie voor het WRR-rapport 'Focus op functies: uitdagingen voor een toekomstbestendig mediabeleid'. Deze publicatie is ook als boek te bestellen bij Amsterdam University Press (AUP).
State-of-the-Art Report, INDICARE, december 2004.
The study offers an analysis of the use of conditional access systems for other reasons than the protection of remuneration interests. The report also examines the need to provide for additional legal protection by means of a Community initiative, such as a possible extension of the Conditional Access Directive. The report will give a legal and economic analysis of the most important non-remuneration reasons to use conditional access (CA), examine whether services based on conditional access for these reasons are endangered by piracy activities, to what extent existing legislation in the Member States provides for sufficient protection, and what the possible impact of the use of conditional access is on the Internal Market. Furthermore, the study analysis the specific legislation outside the European Union, notably in Australia, Canada, Japan and the US, as well as the relevant international rules at the level of the EC, WIPO and the Council of Europe.
Copyright and related rights in the audiovisual sector.
The article gives an overview on the existing international and regional provisions, particular at the level of WIPO and the European Community on the legal protection of copyrights and related rights in the audiovisual sector. Secondly, it introduces the most important pending proposals for an update of those provisions and concludes with some comparative remarks on the expected future state of protection.
This report analyses to what extent the Rome Convention (1961) and relevant instruments of the Council of Europe in the intellectual property field provide for sufficient protection of broadcasters in Europe. Background to the report is the changing technological environment over the last 40 years, particularly as regards convergence of the telecommunications, media and information technologies, piracy and the development of new services such as digital broadcasting services. The situation will be compared to current legal developments at EC and WIPO level. The aim of the report was to examine eventual gaps in protection where existing regulations are applied in modern times and to investigate in further activities which could be undertaken within the framework of the Council of Europe to ensure the satisfactory protection of the rights of broadcasting organisations. The study was commissioned by the Council of Europe. Views expressed in the report are not those of the Organisation.
De bescherming van op voorwaardelijke toegang gebaseerde diensten (zoals betaaltelevisie) in Europa is niet zo volledig als de dienstenaanbieders wellicht hopen. Dit artikel onderzoekt in hoeverre de recent aangenomen Richtlijn Voorwaardelijke Toegang hierin verandering brengt.
De bijdrage aan de 'Legal Guide to the Audiovisual Media in Europe' van het European Audiovisual Observatory, geeft een introductie van de recente wetgeving over de audiovisuele sector van Monaco. In het artikel worden de bestaande wetgeving en recente ontwikkelingen in deze sector behandeld en worden relevante literatuur en adressen gegeven.
The jurisdiction of member states over transnationally operating broadcasters as laid down in the former version of the Television without Frontiers Directive has repeatedly caused legal conflicts. The issue of jurisdiction is of particular importance for the transborder activities of broadcasters, since national laws governing the transmission of broadcasts differ considerably in such important areas as advertisement rules and the protection of minors. In a number of recent decisions, the European Court of Justice clarified the principle of member states’ jurisdiction over broadcasters. This article provides an overview of the relevant judgements of the court, also taking into account the corresponding provisions of the (revised) Television without Frontiers Directive.
In het kader van de 'Legal Guide to Audiovisual Media in Europe' van het European Audiovisual Observatory, beschrijft dit artikel de huidige juridische toestand op het gebied van omroep, film, telecommunicatie en de Global Information Society in Liechtenstein. Naast een compleet overzicht van de relevante wetgeving en de meest recent juridische ontwikkelingen, geeft het rapport relevante literatuur en adressen van de verantwoordelijke instanties.