Publications - Pagina 45 van 266

In its Proposal for a Digital Services Act (“DSA”), the European Commission highlighted the need for new transparency obligations to arrive at accountable digital services, ensure a fair environment for economic operators and empower consumers. However, the proposed new rules seem to focus on transparency measures for consumers. According to the DSA Proposal, platforms, such as online marketplaces, must ensure that platform users receive information enabling them to understand when and on whose behalf an advertisement is displayed, and which parameters are used to direct advertising to them, including explanations of the logic underlying systems for targeted advertising. Statements addressing the interests of trademark owners and trademark policy are sought in vain. Against this background, the analysis sheds light on AI-driven behavioural advertising practices and the policy considerations underlying the proposed new transparency obligations. In the light of the debate on trademark protection in keyword advertising cases, it will show that not only consumers but also trademark owners have a legitimate interest in receiving information on the parameters that are used to target consumers. The discussion will lead to the insight that lessons from the keyword advertising debate can play an important role in the transparency discourse because they broaden the spectrum of policy rationales and guidelines for new transparency rules. In addition to the current focus on consumer empowerment, the enhancement of information on alternative offers in the marketplace and the strengthening of trust in AI-driven, personalized advertising enter the picture. On balance, there are good reasons to broaden the scope of the DSA initiative and ensure access to transparency information for consumers and trademark owners alike.

Links

DOI: https://doi.org/10.4337/9781800881907.00023

Artificial intelligence, Trademark law

RIS

TY  - CHAP
AU  - Senftleben, M.
PY  - 2022
DA  - 2022-02-01
T1  - Trademark Law, AI-driven Behavioral Advertising, and the Digital Services Act: Toward Source and Parameter Transparency for Consumers, Brand Owners and Competitors
SP  - 309-324
UR  - https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3947739
DO  - https://doi.org/10.4337/9781800881907.00023
AB  - In its Proposal for a Digital Services Act (“DSA”), the European Commission highlighted the need for new transparency obligations to arrive at accountable digital services, ensure a fair environment for economic operators and empower consumers. However, the proposed new rules seem to focus on transparency measures for consumers. According to the DSA Proposal, platforms, such as online marketplaces, must ensure that platform users receive information enabling them to understand when and on whose behalf an advertisement is displayed, and which parameters are used to direct advertising to them, including explanations of the logic underlying systems for targeted advertising. Statements addressing the interests of trademark owners and trademark policy are sought in vain. Against this background, the analysis sheds light on AI-driven behavioural advertising practices and the policy considerations underlying the proposed new transparency obligations. In the light of the debate on trademark protection in keyword advertising cases, it will show that not only consumers but also trademark owners have a legitimate interest in receiving information on the parameters that are used to target consumers. The discussion will lead to the insight that lessons from the keyword advertising debate can play an important role in the transparency discourse because they broaden the spectrum of policy rationales and guidelines for new transparency rules. In addition to the current focus on consumer empowerment, the enhancement of information on alternative offers in the marketplace and the strengthening of trust in AI-driven, personalized advertising enter the picture. On balance, there are good reasons to broaden the scope of the DSA initiative and ensure access to transparency information for consumers and trademark owners alike.
K1  - Artificial intelligence
K1  - Trademark law
ER  -

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Bibtex

Chapter{nokey,
	title = {Trademark Law, AI-driven Behavioral Advertising, and the Digital Services Act: Toward Source and Parameter Transparency for Consumers, Brand Owners and Competitors},
	author = {Senftleben, M.},
	doi = {https://doi.org/10.4337/9781800881907.00023},
	year = {2022},
	date = {2022-02-01},
	pages = {309-324},
	abstract = {In its Proposal for a Digital Services Act (“DSA”), the European Commission highlighted the need for new transparency obligations to arrive at accountable digital services, ensure a fair environment for economic operators and empower consumers. However, the proposed new rules seem to focus on transparency measures for consumers. According to the DSA Proposal, platforms, such as online marketplaces, must ensure that platform users receive information enabling them to understand when and on whose behalf an advertisement is displayed, and which parameters are used to direct advertising to them, including explanations of the logic underlying systems for targeted advertising. Statements addressing the interests of trademark owners and trademark policy are sought in vain. Against this background, the analysis sheds light on AI-driven behavioural advertising practices and the policy considerations underlying the proposed new transparency obligations. In the light of the debate on trademark protection in keyword advertising cases, it will show that not only consumers but also trademark owners have a legitimate interest in receiving information on the parameters that are used to target consumers. The discussion will lead to the insight that lessons from the keyword advertising debate can play an important role in the transparency discourse because they broaden the spectrum of policy rationales and guidelines for new transparency rules. In addition to the current focus on consumer empowerment, the enhancement of information on alternative offers in the marketplace and the strengthening of trust in AI-driven, personalized advertising enter the picture. On balance, there are good reasons to broaden the scope of the DSA initiative and ensure access to transparency information for consumers and trademark owners alike.},
	keywords = {Artificial intelligence, Trademark law},
}

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No Trademark Protection for Artworks in the Public Domain – A Practical Guide to the Application of Public Order and Morality as Grounds for Refusal external link

Senftleben, M.

GRUR International, vol. 71, num: 1, pp: 3-17, 2022

Abstract

With its 2017 landmark decision in Vigeland, the Court of Justice of the European Free Trade Association States (EFTA Court) has paved the way for the invocation of public order and morality as grounds for refusal when trademark protection is sought for cultural expressions in the public domain. Dealing with an attempt to register artworks of the famous Norwegian sculptor Gustav Vigeland as trademarks, the EFTA Court took this step to safeguard the public domain status of literary and artistic works after the expiry of copyright, shield cultural creations against ‘commercial greed’ and ensure the freedom of the arts.1 Trademark examiners and judges seeking to follow in the footsteps of the EFTA Court, however, may find it difficult to operationalize the Vigeland criteria and put corresponding arguments for refusal into practice. Against this background, the following analysis provides guidelines for the practical application of public order and morality arguments in cultural heritage cases. It describes problems arising from the grant of trademark rights in cultural public domain material (Section I) and the traditional reluctance of trademark offices and courts to rely on public order and morality considerations in this context (Section II). After this statement of the problem, the criteria following from the Vigeland decision will be introduced (Section III) before we explore the practical implementation of the EFTA Court’s morality (Section IV) and public order (Section V) arguments in more detail. The final Section VI summarizes the results of the analysis.

Links

DOI: https://doi.org/https://doi.org/10.1093/grurint/ikab107

frontpage, kunst, Merkenrecht, publiek domein

RIS

TY  - JOUR
AU  - Senftleben, M.
PY  - 0111
DA  - 2022-01-11
T1  - No Trademark Protection for Artworks in the Public Domain – A Practical Guide to the Application of Public Order and Morality as Grounds for Refusal
JO  - GRUR International
VL  - 71
NV  - 1
SP  - 3-17
UR  - https://academic.oup.com/grurint/article/71/1/3/6349172
https://www.ivir.nl/publicaties/download/grurint_2022_1.pdf
DO  - https://doi.org/https://doi.org/10.1093/grurint/ikab107
AB  - With its 2017 landmark decision in Vigeland, the Court of Justice of the European Free Trade Association States (EFTA Court) has paved the way for the invocation of public order and morality as grounds for refusal when trademark protection is sought for cultural expressions in the public domain. Dealing with an attempt to register artworks of the famous Norwegian sculptor Gustav Vigeland as trademarks, the EFTA Court took this step to safeguard the public domain status of literary and artistic works after the expiry of copyright, shield cultural creations against ‘commercial greed’ and ensure the freedom of the arts.1 Trademark examiners and judges seeking to follow in the footsteps of the EFTA Court, however, may find it difficult to operationalize the Vigeland criteria and put corresponding arguments for refusal into practice. Against this background, the following analysis provides guidelines for the practical application of public order and morality arguments in cultural heritage cases. It describes problems arising from the grant of trademark rights in cultural public domain material (Section I) and the traditional reluctance of trademark offices and courts to rely on public order and morality considerations in this context (Section II). After this statement of the problem, the criteria following from the Vigeland decision will be introduced (Section III) before we explore the practical implementation of the EFTA Court’s morality (Section IV) and public order (Section V) arguments in more detail. The final Section VI summarizes the results of the analysis.
K1  - frontpage
K1  - kunst
K1  - Merkenrecht
K1  - publiek domein
ER  -

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Bibtex

Article{nokey,
	title = {No Trademark Protection for Artworks in the Public Domain – A Practical Guide to the Application of Public Order and Morality as Grounds for Refusal},
	author = {Senftleben, M.},
	doi = {https://doi.org/https://doi.org/10.1093/grurint/ikab107},
	year = {0111},
	date = {2022-01-11},
	journal = {GRUR International},
	volume = {71},
	number = {1},
	pages = {3-17},
	abstract = {With its 2017 landmark decision in Vigeland, the Court of Justice of the European Free Trade Association States (EFTA Court) has paved the way for the invocation of public order and morality as grounds for refusal when trademark protection is sought for cultural expressions in the public domain. Dealing with an attempt to register artworks of the famous Norwegian sculptor Gustav Vigeland as trademarks, the EFTA Court took this step to safeguard the public domain status of literary and artistic works after the expiry of copyright, shield cultural creations against ‘commercial greed’ and ensure the freedom of the arts.1 Trademark examiners and judges seeking to follow in the footsteps of the EFTA Court, however, may find it difficult to operationalize the Vigeland criteria and put corresponding arguments for refusal into practice. Against this background, the following analysis provides guidelines for the practical application of public order and morality arguments in cultural heritage cases. It describes problems arising from the grant of trademark rights in cultural public domain material (Section I) and the traditional reluctance of trademark offices and courts to rely on public order and morality considerations in this context (Section II). After this statement of the problem, the criteria following from the Vigeland decision will be introduced (Section III) before we explore the practical implementation of the EFTA Court’s morality (Section IV) and public order (Section V) arguments in more detail. The final Section VI summarizes the results of the analysis.},
	keywords = {frontpage, kunst, Merkenrecht, publiek domein},
}

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Choice Architectures in the Digital Economy: Towards a New Understanding of Digital Vulnerability external link

Helberger, N., Sax, M., Strycharz, J. & Micklitz, H.-W.

Journal of Consumer Policy, vol. 45, iss. : 2, pp: 175-200, 2022

Abstract

In the digital economy, consumer vulnerability is not simply a vantage point from which to assess some consumers’ lack of ability to activate their awareness of persuasion. Instead, digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of the increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces. Digital vulnerability, we argue, is architectural, relational, and data-driven. Based on our concept of digital vulnerability, we demonstrate how and why using digital technology to render consumers vulnerable is the epitome of an unfair digital commercial practice.

Links

DOI: https://doi.org/10.1007/s10603-021-09500-5

dark patterns, data-driven marketing strategies, digital marketplaces, manipulation, Platforms, unfair commercial practices, vulnerability

RIS

TY  - JOUR
AU  - Helberger, N.
AU  - Sax, M.
AU  - Strycharz, J.
AU  - Micklitz, H.-W.
PY  - 0524
DA  - 2022-05-24
T1  - Choice Architectures in the Digital Economy: Towards a New Understanding of Digital Vulnerability
JO  - Journal of Consumer Policy
VL  - 45
IS  - 2
SP  - 175-200
UR  - https://link.springer.com/article/10.1007/s10603-021-09500-5
DO  - https://doi.org/10.1007/s10603-021-09500-5
AB  - In the digital economy, consumer vulnerability is not simply a vantage point from which to assess some consumers’ lack of ability to activate their awareness of persuasion. Instead, digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of the increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces. Digital vulnerability, we argue, is architectural, relational, and data-driven. Based on our concept of digital vulnerability, we demonstrate how and why using digital technology to render consumers vulnerable is the epitome of an unfair digital commercial practice.
K1  - dark patterns
K1  - data-driven marketing strategies
K1  - digital marketplaces
K1  - manipulation
K1  - Platforms
K1  - unfair commercial practices
K1  - vulnerability
ER  -

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Bibtex

Article{nokey,
	title = {Choice Architectures in the Digital Economy: Towards a New Understanding of Digital Vulnerability},
	author = {Helberger, N. and Sax, M. and Strycharz, J. and Micklitz, H.-W.},
	doi = {https://doi.org/10.1007/s10603-021-09500-5},
	year = {0524},
	date = {2022-05-24},
	journal = {Journal of Consumer Policy},
	volume = {45},
	issue = {2},
	pages = {175-200},
	abstract = {In the digital economy, consumer vulnerability is not simply a vantage point from which to assess some consumers’ lack of ability to activate their awareness of persuasion. Instead, digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of the increasing automation of commerce, datafied consumer–seller relations, and the very architecture of digital marketplaces. Digital vulnerability, we argue, is architectural, relational, and data-driven. Based on our concept of digital vulnerability, we demonstrate how and why using digital technology to render consumers vulnerable is the epitome of an unfair digital commercial practice.},
	keywords = {dark patterns, data-driven marketing strategies, digital marketplaces, manipulation, Platforms, unfair commercial practices, vulnerability},
}

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The rise of NFTs: These aren’t the droids you’re looking for external link

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

European Intellectual Property Review, 2022

Abstract

Non-fungible tokens (NFTs) are hailed as revolutionary tools that will empower artists and revolutionize copyright management and remuneration. This article explores their copyright relevance, and it describes how copyright might apply in relation to NFT creation and trading. In doing so, it provides an overview of the ecosystem of actors built around NFTs, and it analyzes the role of these actors according to the European copyright normative framework.

blockchain, Copyright, digital art, frontpage, non-fungible tokens

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EU copyright law round up – fourth trimester of 2021 external link

Trapova, A. & Quintais, J.

Kluwer Copyright Blog, 2021

Auteursrecht, EU, frontpage

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Social Welfare, Risk Profiling and Fundamental Rights: The Case of SyRI in the Netherlands external link

Appelman, N., Fahy, R. & van Hoboken, J.

JIPITEC, vol. 12, num: 4, pp: 257-271, 2021

Abstract

This article discusses the use of automated decisioning-making (ADM) systems by public administrative bodies, particularly systems designed to combat social-welfare fraud, from a European fundamental rights law perspective. The article begins by outlining the emerging fundamental rights issues in relation to ADM systems used by public administrative bodies. Building upon this, the article critically analyses a recent landmark judgment from the Netherlands and uses this as a case study for discussion of the application of fundamental rights law to ADM systems by public authorities more generally. In the so-called SyRI judgment, the District Court of The Hague held that a controversial automated welfare-fraud detection system (SyRI), which allows the linking and analysing of data from an array of government agencies to generate fraud-risk reports on people, violated the right to private life, guaranteed under Article 8 of the European Convention on Human Rights (ECHR). The Court held that SyRI was insufficiently transparent, and contained insufficient safeguards, to protect the right to privacy, in violation of Article 8 ECHR. This was one of the first times an ADM system being used by welfare authorities has been halted on the basis of Article 8 ECHR. The article critically analyses the SyRI judgment from a fundamental rights perspective, including by examining how the Court brought principles contained in the General Data Protection Regulation within the rubric of Article 8 ECHR as well as the importance the Court attaches to the principle of transparency under Article 8 ECHR. Finally, the article discusses how the Dutch government responded to the judgment. and discusses proposed new legislation, which is arguably more invasive, with the article concluding with some lessons that can be drawn for the broader policy and legal debate on ADM systems used by public authorities. implications.

automated decision making, frontpage, fundamentele rechten, Grondrechten, Mensenrechten, nederland, SyRI-wetgeving

RIS

TY  - JOUR
AU  - Appelman, N.
AU  - Fahy, R.
AU  - van Hoboken, J.
PY  - 1216
DA  - 2021-12-16
T1  - Social Welfare, Risk Profiling and Fundamental Rights: The Case of SyRI in the Netherlands
JO  - JIPITEC
VL  - 12
NV  - 4
SP  - 257-271
UR  - https://www.ivir.nl/publicaties/download/jipitec_2021_4.pdf
https://www.jipitec.eu/issues/jipitec-12-4-2021/5407
AB  - This article discusses the use of automated decisioning-making (ADM) systems by public administrative bodies, particularly systems designed to combat social-welfare fraud, from a European fundamental rights law perspective. The article begins by outlining the emerging fundamental rights issues in relation to ADM systems used by public administrative bodies. Building upon this, the article critically analyses a recent landmark judgment from the Netherlands and uses this as a case study for discussion of the application of fundamental rights law to ADM systems by public authorities more generally. In the so-called SyRI judgment, the District Court of The Hague held that a controversial automated welfare-fraud detection system (SyRI), which allows the linking and analysing of data from an array of government agencies to generate fraud-risk reports on people, violated the right to private life, guaranteed under Article 8 of the European Convention on Human Rights (ECHR). The Court held that SyRI was insufficiently transparent, and contained insufficient safeguards, to protect the right to privacy, in violation of Article 8 ECHR. This was one of the first times an ADM system being used by welfare authorities has been halted on the basis of Article 8 ECHR. The article critically analyses the SyRI judgment from a fundamental rights perspective, including by examining how the Court brought principles contained in the General Data Protection Regulation within the rubric of Article 8 ECHR as well as the importance the Court attaches to the principle of transparency under Article 8 ECHR. Finally, the article discusses how the Dutch government responded to the judgment. and discusses proposed new legislation, which is arguably more invasive, with the article concluding with some lessons that can be drawn for the broader policy and legal debate on ADM systems used by public authorities. implications.
K1  - automated decision making
K1  - frontpage
K1  - fundamentele rechten
K1  - Grondrechten
K1  - Mensenrechten
K1  - nederland
K1  - SyRI-wetgeving
ER  -

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Bibtex

Article{nokey,
	title = {Social Welfare, Risk Profiling and Fundamental Rights: The Case of SyRI in the Netherlands},
	author = {Appelman, N. and Fahy, R. and van Hoboken, J.},
	year = {1216},
	date = {2021-12-16},
	journal = {JIPITEC},
	volume = {12},
	number = {4},
	pages = {257-271},
	abstract = {This article discusses the use of automated decisioning-making (ADM) systems by public administrative bodies, particularly systems designed to combat social-welfare fraud, from a European fundamental rights law perspective. The article begins by outlining the emerging fundamental rights issues in relation to ADM systems used by public administrative bodies. Building upon this, the article critically analyses a recent landmark judgment from the Netherlands and uses this as a case study for discussion of the application of fundamental rights law to ADM systems by public authorities more generally. In the so-called SyRI judgment, the District Court of The Hague held that a controversial automated welfare-fraud detection system (SyRI), which allows the linking and analysing of data from an array of government agencies to generate fraud-risk reports on people, violated the right to private life, guaranteed under Article 8 of the European Convention on Human Rights (ECHR). The Court held that SyRI was insufficiently transparent, and contained insufficient safeguards, to protect the right to privacy, in violation of Article 8 ECHR. This was one of the first times an ADM system being used by welfare authorities has been halted on the basis of Article 8 ECHR. The article critically analyses the SyRI judgment from a fundamental rights perspective, including by examining how the Court brought principles contained in the General Data Protection Regulation within the rubric of Article 8 ECHR as well as the importance the Court attaches to the principle of transparency under Article 8 ECHR. Finally, the article discusses how the Dutch government responded to the judgment. and discusses proposed new legislation, which is arguably more invasive, with the article concluding with some lessons that can be drawn for the broader policy and legal debate on ADM systems used by public authorities. implications.},
	keywords = {automated decision making, frontpage, fundamentele rechten, Grondrechten, Mensenrechten, nederland, SyRI-wetgeving},
}

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YouTube Copyright Transparency Report: Overblocking is real external link

Keller, P.

Auteursrecht, frontpage, YouTube

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Annotatie bij EHRM 25 mei 2021 (Big Brother Watch e.a. / Verenigd Koninkrijk) en Hof van Justitie EU 6 oktober 2020 (La Quadrature du Net e.a. / Premier ministre e.a.) external link

Dommering, E.

Nederlandse Jurisprudentie, num: 49, pp: 6225-6237, 2021

Annotaties, frontpage, inlichtingendiensten, Personal data, Privacy

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