Editorial: Open Access: we zijn er bijna – maar tegen welke prijs?

In the discussions on copyright and freedom of expression, it is common to focus on copy-right’s economic rights and their potential to restrict the users’ freedom of artistic creativity, freedom to express criticism or freedom to receive and impart information. By contrast, moral rights of the authors (such as the right of divulgation, the right of attribution and the right of integrity) have been much less explored with regard to their potential conflict with creators’ and users’ freedom of expression. Without doubt, moral rights are at the core of copyright protection, in particular in systems following the so-called “civil law” tradition. Their protection represents an important interest that can claim fundamental rights foundations. On a more general level, moral rights can emanate from the need to protect the authors’ dignity and personality - the values underlying a number of fundamental rights in the human rights treaties. More specifically, certain scholars allocate the interest in the protection of the authors’ moral rights in the right to privacy and personal integrity, others - in the so-called “negative” aspect of the right to freedom of expression - the right not to speak and to be free from unwanted associations. Either one way or another, however, the interest of the author in the protection of her personality via moral rights should not be accorded absolute and hence unqualified protection. In particular, competing freedom of expression interests of users (including derivative creators) must not be neglected as a result of such protection. The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.

Links

DOI: https://doi.org/10.4337/9781789904871.00028

Freedom of expression, moral rights

RIS

TY  - CHAP
AU  - Geiger, C.
AU  - Izyumenko, E.
PY  - 2023
DA  - 2023-09-12
T1  - Designing a freedom of expression-compliant framework for moral rights in the EU: challenges and proposals
SP  - 292–314
DO  - https://doi.org/10.4337/9781789904871.00028
AB  - In the discussions on copyright and freedom of expression, it is common to focus on copy-right’s economic rights and their potential to restrict the users’ freedom of artistic creativity, freedom to express criticism or freedom to receive and impart information. By contrast, moral rights of the authors (such as the right of divulgation, the right of attribution and the right of integrity) have been much less explored with regard to their potential conflict with creators’ and users’ freedom of expression. Without doubt, moral rights are at the core of copyright protection, in particular in systems following the so-called “civil law” tradition. Their protection represents an important interest that can claim fundamental rights foundations. On a more general level, moral rights can emanate from the need to protect the authors’ dignity and personality - the values underlying a number of fundamental rights in the human rights treaties. More specifically, certain scholars allocate the interest in the protection of the authors’ moral rights in the right to privacy and personal integrity, others - in the so-called “negative” aspect of the right to freedom of expression - the right not to speak and to be free from unwanted associations. Either one way or another, however, the interest of the author in the protection of her personality via moral rights should not be accorded absolute and hence unqualified protection. In particular, competing freedom of expression interests of users (including derivative creators) must not be neglected as a result of such protection. The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.
K1  - Freedom of expression
K1  - moral rights
ER  -

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Bibtex

Chapter{nokey,
	title = {Designing a freedom of expression-compliant framework for moral rights in the EU: challenges and proposals},
	author = {Geiger, C. and Izyumenko, E.},
	doi = {https://doi.org/10.4337/9781789904871.00028},
	year = {2023},
	date = {2023-09-12},
	pages = {292–314},
	abstract = {In the discussions on copyright and freedom of expression, it is common to focus on copy-right’s economic rights and their potential to restrict the users’ freedom of artistic creativity, freedom to express criticism or freedom to receive and impart information. By contrast, moral rights of the authors (such as the right of divulgation, the right of attribution and the right of integrity) have been much less explored with regard to their potential conflict with creators’ and users’ freedom of expression. Without doubt, moral rights are at the core of copyright protection, in particular in systems following the so-called “civil law” tradition. Their protection represents an important interest that can claim fundamental rights foundations. On a more general level, moral rights can emanate from the need to protect the authors’ dignity and personality - the values underlying a number of fundamental rights in the human rights treaties. More specifically, certain scholars allocate the interest in the protection of the authors’ moral rights in the right to privacy and personal integrity, others - in the so-called “negative” aspect of the right to freedom of expression - the right not to speak and to be free from unwanted associations. Either one way or another, however, the interest of the author in the protection of her personality via moral rights should not be accorded absolute and hence unqualified protection. In particular, competing freedom of expression interests of users (including derivative creators) must not be neglected as a result of such protection. The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.},
	keywords = {Freedom of expression, moral rights},
}

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D1.1 – Economy of Music in Europe: Methods and Indicators download

Antal, D., Barteková, M.K., Remeňová, K., Mikš, T., Poort, J. & Edwards, J.

2023

Links

D1.1_OpenMusE_Economy-of-Music-in-Europe-Methods-and-Indicators

Copyright, music

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Freedom of Expression as a Rationale for IP Protection

Izyumenko, E.

GRUR International, vol. 72, iss. : 9, pp: 840-852, 2023

Abstract

This article revisits the discussion on the rationales for intellectual property (IP) protection by addressing a particular justificatory theory for IP that had come to the forefront of legal discussions in recent years – the theory based on freedom of expression and information. This modern vision of IP focuses on the communicative nature of IP subject-matter and of IP as a legal regime. Firstly, this article reviews the Kantian theory of copyright that lies at the origins of any modern discussions on the communicative nature of IP regulation with the aim of answering whether IP should be more properly conceived as the system for regulating communication. It then looks at the readings of this theory by contemporary copyright scholars and considers applicability of the communicative theory to other areas of IP such as trademarks and patents. The analysis then proceeds towards looking at the freedom of expression dimension of the ‘classic’ IP theories. Reflecting on this matter is important as the rationales for IP protection influence virtually all spheres of IP’s legal regulation, including – first and foremost – the reach of IP holders’ entitlements.

Links

DOI: https://doi.org/10.1093/grurint/ikad071

Freedom of expression, Intellectual property

RIS

TY  - JOUR
AU  - Izyumenko, E.
PY  - 2023
DA  - 2023-07-25
T1  - Freedom of Expression as a Rationale for IP Protection
JO  - GRUR International
VL  - 72
IS  - 9
SP  - 840-852
DO  - https://doi.org/10.1093/grurint/ikad071
AB  - This article revisits the discussion on the rationales for intellectual property (IP) protection by addressing a particular justificatory theory for IP that had come to the forefront of legal discussions in recent years – the theory based on freedom of expression and information. This modern vision of IP focuses on the communicative nature of IP subject-matter and of IP as a legal regime. Firstly, this article reviews the Kantian theory of copyright that lies at the origins of any modern discussions on the communicative nature of IP regulation with the aim of answering whether IP should be more properly conceived as the system for regulating communication. It then looks at the readings of this theory by contemporary copyright scholars and considers applicability of the communicative theory to other areas of IP such as trademarks and patents. The analysis then proceeds towards looking at the freedom of expression dimension of the ‘classic’ IP theories. Reflecting on this matter is important as the rationales for IP protection influence virtually all spheres of IP’s legal regulation, including – first and foremost – the reach of IP holders’ entitlements.
K1  - Freedom of expression
K1  - Intellectual property
ER  -

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Bibtex

Article{nokey,
	title = {Freedom of Expression as a Rationale for IP Protection},
	author = {Izyumenko, E.},
	doi = {https://doi.org/10.1093/grurint/ikad071},
	year = {2023},
	date = {2023-07-25},
	journal = {GRUR International},
	volume = {72},
	issue = {9},
	pages = {840-852},
	abstract = {This article revisits the discussion on the rationales for intellectual property (IP) protection by addressing a particular justificatory theory for IP that had come to the forefront of legal discussions in recent years – the theory based on freedom of expression and information. This modern vision of IP focuses on the communicative nature of IP subject-matter and of IP as a legal regime. Firstly, this article reviews the Kantian theory of copyright that lies at the origins of any modern discussions on the communicative nature of IP regulation with the aim of answering whether IP should be more properly conceived as the system for regulating communication. It then looks at the readings of this theory by contemporary copyright scholars and considers applicability of the communicative theory to other areas of IP such as trademarks and patents. The analysis then proceeds towards looking at the freedom of expression dimension of the ‘classic’ IP theories. Reflecting on this matter is important as the rationales for IP protection influence virtually all spheres of IP’s legal regulation, including – first and foremost – the reach of IP holders’ entitlements.},
	keywords = {Freedom of expression, Intellectual property},
}

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Using Terms and Conditions to apply Fundamental Rights to Content Moderation

Quintais, J., Appelman, N. & Fahy, R.

German Law Journal, 2023

Abstract

Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.

Links

DOI: https://doi.org/10.1017/glj.2023.53

Content moderation, Digital Services Act (DSA), Freedom of expression, Online platforms, platform regulation, terms and conditions

RIS

TY  - JOUR
AU  - Quintais, J.
AU  - Appelman, N.
AU  - Fahy, R.
PY  - 2023
DA  - 2023-07-11
T1  - Using Terms and Conditions to apply Fundamental Rights to Content Moderation
JO  - German Law Journal
DO  - https://doi.org/10.1017/glj.2023.53
AB  - Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.
K1  - Content moderation
K1  - Digital Services Act (DSA)
K1  - Freedom of expression
K1  - Online platforms
K1  - platform regulation
K1  - terms and conditions
ER  -

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Bibtex

Article{nokey,
	title = {Using Terms and Conditions to apply Fundamental Rights to Content Moderation},
	author = {Quintais, J. and Appelman, N. and Fahy, R.},
	doi = {https://doi.org/10.1017/glj.2023.53},
	year = {2023},
	date = {2023-07-11},
	journal = {German Law Journal},
	abstract = {Large online platforms provide an unprecedented means for exercising freedom of expression online and wield enormous power over public participation in the online democratic space. However, it is increasingly clear that their systems, where (automated) content moderation decisions are taken based on a platformʼs terms and conditions (T&Cs), are fundamentally broken. Content moderation systems have been said to undermine freedom of expression, especially where important public interest speech ends up suppressed, such as speech by minority and marginalized groups. Indeed, these content moderation systems have been criticized for their overly vague rules of operation, inconsistent enforcement, and an overdependence on automation. Therefore, in order to better protect freedom of expression online, international human rights bodies and civil society organizations have argued that platforms “should incorporate directly” principles of fundamental rights law into their T&Cs. Under EU law, and apart from a rule in the Terrorist Content Regulation, platforms had until recently no explicit obligation to incorporate fundamental rights into their T&Cs. However, an important provision in the Digital Services Act (DSA) will change this. Crucially, Article 14 DSA lays down new rules on how platforms can enforce their T&Cs, including that platforms must have “due regard” to the “fundamental rights” of users under the EU Charter of Fundamental Rights. In this article, we critically examine the topic of enforceability of fundamental rights via T&Cs through the prism of Article 14 DSA. We ask whether this provision requires platforms to apply EU fundamental rights law and to what extent this may curb the power of Big Tech over online speech. We conclude that Article 14 will make it possible, in principle, to establish the indirect horizontal effect of fundamental rights in the relationship between online platforms and their users. But in order for the application and enforcement of T&Cs to take due regard of fundamental rights, Article 14 must be operationalized within the framework of the international and European fundamental rights standards. If this is possible Article 14 may fulfil its revolutionary potential.},
	keywords = {Content moderation, Digital Services Act (DSA), Freedom of expression, Online platforms, platform regulation, terms and conditions},
}

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Expert perspectives on GDPR compliance in the context of smart homes and vulnerable persons

Piasecki, S.

Information & Communications Technology Law, 2023

Abstract

This article introduces information gathered through 21 semi-structured interviews conducted with UK, EU and international professionals in the field of General Data Protection Regulation (GDPR) compliance and technology design, with a focus on the smart home context and vulnerable people using smart products. Those discussions gave various insights and perspectives into how the two communities (lawyers and technologists) view intricate practical data protection challenges in this specific setting. The variety of interviewees allowed to compare different approaches to data protection compliance topics. Answers to the following questions were provided: when organisations develop and/or deploy smart devices that use personal data, do they take into consideration the needs of vulnerable groups of people to comply with the GDPR? What are the underlying issues linked to the practical data protection law challenges faced by organisations working on smart devices used by vulnerable persons? How do experts perceive data protection law-related problems in this context?

Links

DOI: https://doi.org/10.1080/13600834.2023.2231326

Data protection, GDPR, Internet of Things, smart devices

RIS

TY  - JOUR
AU  - Piasecki, S.
PY  - 2023
DA  - 2023-07-07
T1  - Expert perspectives on GDPR compliance in the context of smart homes and vulnerable persons
JO  - Information & Communications Technology Law
DO  - https://doi.org/10.1080/13600834.2023.2231326
AB  - This article introduces information gathered through 21 semi-structured interviews conducted with UK, EU and international professionals in the field of General Data Protection Regulation (GDPR) compliance and technology design, with a focus on the smart home context and vulnerable people using smart products. Those discussions gave various insights and perspectives into how the two communities (lawyers and technologists) view intricate practical data protection challenges in this specific setting. The variety of interviewees allowed to compare different approaches to data protection compliance topics. Answers to the following questions were provided: when organisations develop and/or deploy smart devices that use personal data, do they take into consideration the needs of vulnerable groups of people to comply with the GDPR? What are the underlying issues linked to the practical data protection law challenges faced by organisations working on smart devices used by vulnerable persons? How do experts perceive data protection law-related problems in this context?
K1  - Data protection
K1  - GDPR
K1  - Internet of Things
K1  - smart devices
ER  -

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Bibtex

Article{nokey,
	title = {Expert perspectives on GDPR compliance in the context of smart homes and vulnerable persons},
	author = {Piasecki, S.},
	doi = {https://doi.org/10.1080/13600834.2023.2231326},
	year = {2023},
	date = {2023-07-07},
	journal = {Information & Communications Technology Law},
	abstract = {This article introduces information gathered through 21 semi-structured interviews conducted with UK, EU and international professionals in the field of General Data Protection Regulation (GDPR) compliance and technology design, with a focus on the smart home context and vulnerable people using smart products. Those discussions gave various insights and perspectives into how the two communities (lawyers and technologists) view intricate practical data protection challenges in this specific setting. The variety of interviewees allowed to compare different approaches to data protection compliance topics. Answers to the following questions were provided: when organisations develop and/or deploy smart devices that use personal data, do they take into consideration the needs of vulnerable groups of people to comply with the GDPR? What are the underlying issues linked to the practical data protection law challenges faced by organisations working on smart devices used by vulnerable persons? How do experts perceive data protection law-related problems in this context?},
	keywords = {Data protection, GDPR, Internet of Things, smart devices},
}

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Annotatie Hof van Justitie van de EU 28 april 2022 (Meta Platforms Ireland / Bundesverband der Verbraucherzentralen und Verbraucherverbände) download

Dommering, E.

Nederlandse Jurisprudentie, iss. : 21, num: 194, pp: 3621-3623, 2023

Links

Annotatie_NJ_2023_194

Facebook, Personal data, Privacy

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Gemeentelijke grip op private sensorgegevens: Juridisch kader voor het gemeentelijke handelingsperspectief bij de verwerking van private sensorgegevens in de openbare ruimte download

Janssen, H., Verboeket, L.W., Meiring, A., van Hoboken, J., van Eechoud, M., van den Brink, J.E., Ortlep, R. & Bodó, B.

2023

Links

Gemeentelijke_grip_op_private_sensorgegevens

handhaving, Privacy, sensoren, Surveillance

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Trapova, A. & Quintais, J.

Links

https://copyrightblog.kluweriplaw.com/2023/06/30/eu-copyright-law-round-up-second-trimester-of-2023/

Copyright

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