Opinie: De ene demonstratie is de andere niet, maar laat overheid niet vooraf grenzen stellen external link

NRC Handelsblad, 2024

Abstract

De demonstraties tegen de Gaza-oorlog en acties van klimaatactivisten in musea zoeken de grenzen van de wet op, ziet Egbert Dommering. Hoe daarmee strafrechtelijk en bestuurlijk om te gaan is niet eenduidig.

Bibtex

Newspaper article{nokey, title = {Opinie: De ene demonstratie is de andere niet, maar laat overheid niet vooraf grenzen stellen}, author = {Dommering, E.}, url = {https://www.nrc.nl/nieuws/2024/03/14/de-ene-demonstratie-is-de-andere-niet-maar-laat-overheid-niet-vooraf-grenzen-stellen-a4193077}, year = {2024}, date = {2024-03-14}, journal = {NRC Handelsblad}, abstract = {De demonstraties tegen de Gaza-oorlog en acties van klimaatactivisten in musea zoeken de grenzen van de wet op, ziet Egbert Dommering. Hoe daarmee strafrechtelijk en bestuurlijk om te gaan is niet eenduidig.}, }

The Right to Root: Constructing a Claim to Control Devices from the Right to Privacy download

JIPITEC, vol. 14, iss. : 4, pp: 580-593, 2023

Abstract

Empowering people with digital tools has been an enduring ideal throughout the history of computing. In some of the earlier visions, this was not only a matter of making life easier, it was also a matter of people gaining control over their digital tools. One solution to this problem which has been suggested is to provide users with a manual override to gain full control over a device, something called gaining 'root' - hence the 'Right to Root'. Yet, there are no policymakers who have seriously treated this as a possibility. For people pushing this right at a policy level, it would therefore be helpful to know whether this Right to Root can be constructed from human rights. In this article, I explore the European human rights-based arguments for a Right to Root, focusing on the right to privacy under the European Convention for Human Rights and the Charter of Fundamental Rights. I first discuss the origins of this ideal of gaining control over your own devices. I then show how users over the years have gained less control and how the RIght to Root could enable them to regain control. I then explore how the Right to Root could be constructed from the right to privacy under the Convention and the Charter, by understanding it as a way to protect the values of autonomy, self-determination and seclusion. I conclude that a Right to Root can be grounded in the human right to privacy, but that further research is necessary to balance it with other interests, such as cybersecurity, traffic safety, health and intellectual property.

Privacy

Bibtex

Article{nokey, title = {The Right to Root: Constructing a Claim to Control Devices from the Right to Privacy}, author = {van Daalen, O.}, url = {https://www.ivir.nl/publications/the-right-to-root-constructing-a-claim-to-control-devices-from-the-right-to-privacy/jipitec_2023_4/}, year = {2023}, date = {2023-12-12}, journal = {JIPITEC}, volume = {14}, issue = {4}, pages = {580-593}, abstract = {Empowering people with digital tools has been an enduring ideal throughout the history of computing. In some of the earlier visions, this was not only a matter of making life easier, it was also a matter of people gaining control over their digital tools. One solution to this problem which has been suggested is to provide users with a manual override to gain full control over a device, something called gaining \'root\' - hence the \'Right to Root\'. Yet, there are no policymakers who have seriously treated this as a possibility. For people pushing this right at a policy level, it would therefore be helpful to know whether this Right to Root can be constructed from human rights. In this article, I explore the European human rights-based arguments for a Right to Root, focusing on the right to privacy under the European Convention for Human Rights and the Charter of Fundamental Rights. I first discuss the origins of this ideal of gaining control over your own devices. I then show how users over the years have gained less control and how the RIght to Root could enable them to regain control. I then explore how the Right to Root could be constructed from the right to privacy under the Convention and the Charter, by understanding it as a way to protect the values of autonomy, self-determination and seclusion. I conclude that a Right to Root can be grounded in the human right to privacy, but that further research is necessary to balance it with other interests, such as cybersecurity, traffic safety, health and intellectual property.}, keywords = {Privacy}, }

UGC Creation and Dissemination – The Role of Platforms, Copyright Holders and the Court of Justice in Safeguarding Freedom of Expression and Information

Kreation Innovation Märkte - Creation Innovation Markets: Festschrift Reto M. Hilty, Springer, 2024, Berlin, ISBN: 978-3-662-68598-3

Abstract

With the erosion of the traditional safe harbour for hosting and the introduction of licensing and filtering obligations in Art. 17 of the CDSM Directive, EU copyright law has substantially enhanced the risk of inroads into freedom of expression and information: users seeking to participate in the online debate may be confronted with filtering systems that block permissible parodies and pastiches even though no copyright infringement can be found. Instead of putting responsibility for detecting and remedying human rights deficits in the hands of the state, the EU legislature prefers to outsource this responsibility to private entities, in particular platforms for user-generated content. Moreover, the CDSM Directive conceals potential human rights violations by leaving countermeasures to users. A closer look at the human rights obligations imposed on platforms, and the reliance on user activism, reveals a worrying tendency to outsource the task of human rights protection and add a gloss of proportionality and diligence safeguards – without ensuring effective control by public authorities that are bound to foster and support freedom of expression and information. The risk of human rights encroachments is exacerbated by the fact that, instead of exposing and discussing the corrosive effect of human rights outsourcing, the CJEU has rubberstamped the regulatory approach in Art. 17 CDSMD. In its Poland decision, the Court has even qualified problematic features of the outsourcing and concealment strategy as valid safeguards against the erosion of freedom of expression and information. Using inspiring joint work with Reto Hilty as a basis, the analysis sheds light on these problematic developments in the area of platform liability and user-generated content.

Copyright

Bibtex

Chapter{nokey, title = {UGC Creation and Dissemination – The Role of Platforms, Copyright Holders and the Court of Justice in Safeguarding Freedom of Expression and Information}, author = {Senftleben, M.}, doi = {https://doi.org/10.1007/978-3-662-68599-0_24}, year = {2024}, date = {2024-03-06}, abstract = {With the erosion of the traditional safe harbour for hosting and the introduction of licensing and filtering obligations in Art. 17 of the CDSM Directive, EU copyright law has substantially enhanced the risk of inroads into freedom of expression and information: users seeking to participate in the online debate may be confronted with filtering systems that block permissible parodies and pastiches even though no copyright infringement can be found. Instead of putting responsibility for detecting and remedying human rights deficits in the hands of the state, the EU legislature prefers to outsource this responsibility to private entities, in particular platforms for user-generated content. Moreover, the CDSM Directive conceals potential human rights violations by leaving countermeasures to users. A closer look at the human rights obligations imposed on platforms, and the reliance on user activism, reveals a worrying tendency to outsource the task of human rights protection and add a gloss of proportionality and diligence safeguards – without ensuring effective control by public authorities that are bound to foster and support freedom of expression and information. The risk of human rights encroachments is exacerbated by the fact that, instead of exposing and discussing the corrosive effect of human rights outsourcing, the CJEU has rubberstamped the regulatory approach in Art. 17 CDSMD. In its Poland decision, the Court has even qualified problematic features of the outsourcing and concealment strategy as valid safeguards against the erosion of freedom of expression and information. Using inspiring joint work with Reto Hilty as a basis, the analysis sheds light on these problematic developments in the area of platform liability and user-generated content.}, keywords = {Copyright}, }

What can a media privilege look like? Unpacking three versions in the EMFA download

Journal of Media Law, 2024

Abstract

The media privilege has been one of the most controversial aspects of the proposed European Media Freedom Act (EMFA). However, it is important not to assess the drawbacks of the media privilege in isolation, but in relation to the other available alternatives. In this comment, we lay out and critique how the European Parliament and Council build on the Commission’s proposal for a media privilege in the EMFA. We focus on three key questions: how is media content treated differently, who qualifies as media, and who decides who qualifies as media?

Content moderation, Media law, Platforms

Bibtex

Article{nokey, title = {What can a media privilege look like? Unpacking three versions in the EMFA}, author = {Drunen, M. van and Papaevangelou, C. and Buijs, D. and Fahy, R.}, url = {https://www.ivir.nl/publications/what-can-a-media-privilege-look-like-unpacking-three-versions-in-the-emfa/journalofmedialaw_2024/}, doi = {https://doi.org/10.1080/17577632.2023.2299097}, year = {2024}, date = {2024-01-31}, journal = {Journal of Media Law}, abstract = {The media privilege has been one of the most controversial aspects of the proposed European Media Freedom Act (EMFA). However, it is important not to assess the drawbacks of the media privilege in isolation, but in relation to the other available alternatives. In this comment, we lay out and critique how the European Parliament and Council build on the Commission’s proposal for a media privilege in the EMFA. We focus on three key questions: how is media content treated differently, who qualifies as media, and who decides who qualifies as media?}, keywords = {Content moderation, Media law, Platforms}, }

How to design data access for researchers: A legal and software development perspective

Drunen, M. van & Noroozian, A.
Computer Law & Security Review, vol. 52, 2024

Abstract

Public scrutiny of platforms has been limited by a lack of transparency. In response, EU law increasingly requires platforms to provide data to researchers. The Digital Services Act and the proposed Regulation on the Transparency and Targeting of Political Advertising in particular require platforms to provide access to data through ad libraries and in response to data access requests. However, these obligations leave platforms considerable discretion to determine how access to data is provided. As the history of platforms’ self-regulated data access projects shows, the technical choices involved in designing data access significantly affect how researchers can use the provided data to scrutinise platforms. Ignoring the way data access is designed therefore creates a danger that platforms’ ability to limit research into their services simply shifts from controlling what data is available to researchers, to how data access is provided. This article explores how the Digital Services Act and proposed Political Advertising Regulation should be used to control the operationalisation of data access obligations that enable researchers to scrutinise platforms. It argues the operationalisation of data access regimes should not only be seen as a legal problem, but also as a software design problem. To that end it explores how software development principles may inform the operationalisation of data access obligations. The article closes by exploring the legal mechanisms available in the Digital Services Act and proposed Political Advertising Regulation to exercise control over the design of data access regimes, and makes five recommendations for ways in which these mechanisms should be used to enable research into platforms.

data access, DSA, Platforms, Transparency

Bibtex

Article{nokey, title = {How to design data access for researchers: A legal and software development perspective}, author = {Drunen, M. van and Noroozian, A.}, doi = {https://doi.org/10.1016/j.clsr.2024.105946}, year = {2024}, date = {2024-04-01}, journal = {Computer Law & Security Review}, volume = {52}, pages = {}, abstract = {Public scrutiny of platforms has been limited by a lack of transparency. In response, EU law increasingly requires platforms to provide data to researchers. The Digital Services Act and the proposed Regulation on the Transparency and Targeting of Political Advertising in particular require platforms to provide access to data through ad libraries and in response to data access requests. However, these obligations leave platforms considerable discretion to determine how access to data is provided. As the history of platforms’ self-regulated data access projects shows, the technical choices involved in designing data access significantly affect how researchers can use the provided data to scrutinise platforms. Ignoring the way data access is designed therefore creates a danger that platforms’ ability to limit research into their services simply shifts from controlling what data is available to researchers, to how data access is provided. This article explores how the Digital Services Act and proposed Political Advertising Regulation should be used to control the operationalisation of data access obligations that enable researchers to scrutinise platforms. It argues the operationalisation of data access regimes should not only be seen as a legal problem, but also as a software design problem. To that end it explores how software development principles may inform the operationalisation of data access obligations. The article closes by exploring the legal mechanisms available in the Digital Services Act and proposed Political Advertising Regulation to exercise control over the design of data access regimes, and makes five recommendations for ways in which these mechanisms should be used to enable research into platforms.}, keywords = {data access, DSA, Platforms, Transparency}, }

TDM: Poland challenges the rule of EU copyright law external link

Kluwer Copyright Blog, 2024

Copyright, EU, Poland, text and data mining

Bibtex

Online publication{nokey, title = {TDM: Poland challenges the rule of EU copyright law}, author = {Keller, P.}, url = {https://copyrightblog.kluweriplaw.com/2024/02/20/tdm-poland-challenges-the-rule-of-eu-copyright-law/}, year = {2024}, date = {2024-02-20}, journal = {Kluwer Copyright Blog}, keywords = {Copyright, EU, Poland, text and data mining}, }

Rechtsbeschermingsmogelijkheden van het stemgeluid onder Nederlands portretrecht in de context van audio-deepfakes download

Ars Aequi, vol. 72, iss. : 9, pp: 627-634,

Abstract

Recente ontwikkelingen van AI-technologie maken het mogelijk de menselijke stem geheel waarheidsgetrouw na te bootsen. Potentiële inbreuk op ieders privacyrechten en de IE-rechten van makers is hiermee een nieuwe realiteit. Dit artikel bespreekt de mogelijkheden om ter bescherming van het stemgeluid aansluiting te vinden bij het portretrecht, op basis van de wet, relevante jurisprudentie en literatuur.

Copyright, portretrecht

Bibtex

Article{nokey, title = {Rechtsbeschermingsmogelijkheden van het stemgeluid onder Nederlands portretrecht in de context van audio-deepfakes}, author = {Valk, E.G.}, url = {https://www.ivir.nl/publications/rechtsbeschermingsmogelijkheden-van-het-stemgeluid-onder-nederlands-portretrecht-in-de-context-van-audio-deepfakes/aa20230627/}, year = {}, date = {DATE ERROR: pub_date = }, journal = {Ars Aequi}, volume = {72}, issue = {9}, pages = {627-634}, abstract = {Recente ontwikkelingen van AI-technologie maken het mogelijk de menselijke stem geheel waarheidsgetrouw na te bootsen. Potentiële inbreuk op ieders privacyrechten en de IE-rechten van makers is hiermee een nieuwe realiteit. Dit artikel bespreekt de mogelijkheden om ter bescherming van het stemgeluid aansluiting te vinden bij het portretrecht, op basis van de wet, relevante jurisprudentie en literatuur.}, keywords = {Copyright, portretrecht}, }

From the DMCA to the DSA: A Transatlantic Dialogue on Online Platform Regulation and Copyright external link

Verfassungs, 2024

Copyright, DMCA, DSA, Online platforms

Bibtex

Online publication{nokey, title = {From the DMCA to the DSA: A Transatlantic Dialogue on Online Platform Regulation and Copyright}, author = {Quintais, J.}, url = {https://verfassungsblog.de/from-the-dmca-to-the-dsa/?s=09}, year = {2024}, date = {2024-02-19}, journal = {Verfassungs}, keywords = {Copyright, DMCA, DSA, Online platforms}, }

Protection against unfair competition in the European Union: from divergent national approaches to harmonized rules on search result rankings, influencers and greenwashing

Journal of Intellectual Property Law & Practice, vol. 19, iss. : 2, pp: 149-161, 2024

Abstract

This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.

Bibtex

Article{nokey, title = {Protection against unfair competition in the European Union: from divergent national approaches to harmonized rules on search result rankings, influencers and greenwashing}, author = {Senftleben, M.}, doi = {https://doi.org/10.1093/jiplp/jpad123}, year = {2024}, date = {2024-01-17}, journal = {Journal of Intellectual Property Law & Practice}, volume = {19}, issue = {2}, pages = {149-161}, abstract = {This article provides an overview of the complex interplay between harmonized rules of unfair competition law at EU level and national approaches in the Member States. It discusses case law, sheds light on the objectives underlying protection against unfair competition and describes intersections with intellectual property rights. The analysis addresses general clauses that allow unfair competition law in the EU to keep pace with constantly changing marketing practices. It discusses the concept of confusion from a comparative trademark and unfair competition law perspective. Moreover, misleading practices, discrediting and denigrating allegations, slavish imitation, unfair free-riding, trade secret rules and transparency obligations will be explored. The analysis includes recent extensions of the canon of unfair competition rules, in particular in the field of product rankings within search results, influencer marketing and greenwashing. Particular attention will also be devoted to the growing body of transparency obligations in online marketing contexts, including obligations in the area of targeted behavioural advertising that follow from the Digital Services Act.}, }

Article 10bis of the Paris Convention as the common denominator for protection against unfair competition in national and regional contexts

Journal of Intellectual Property Law & Practice, vol. 19, iss. : 2, pp: 81-89, 2024

Abstract

This article explains the historical development of Article 10bis of the Paris Convention and discusses core concepts underlying the international provision, in particular, the overarching requirement of honest practices in industrial or commercial matters, the question of a competitive relationship and the examples of unfair practices given in Article 10bis. It also sheds light on guidance following from the Model Provisions on Protection Against Unfair Competition which the World Intellectual Property Organization presented in 1996. The analysis shows that the honest practices test need not be understood in a traditional, empirical sense. More modern, functional approaches can be adopted to align the application of Article 10bis with a broader spectrum of policy goals: not only fair play between competitors but also consumer protection and the general public interest in a well-functioning marketplace. Similarly, the requirement of a competitive relationship need not focus on direct competition in the same market segment. An indirect competitive relationship can be deemed sufficient. While the prohibited acts listed in Article 10bis(3) reflect central categories of unfair behaviour and harm, current developments and challenges—ranging from computational advertising, influencer marketing and product recommender systems to questions surrounding data exclusivity and sustainability issues—raise the question whether an update and enrichment of the catalogue of prohibited acts could be necessary to provide guidance at the international level.

Bibtex

Article{nokey, title = {Article 10bis of the Paris Convention as the common denominator for protection against unfair competition in national and regional contexts}, author = {Senftleben, M.}, doi = {https://doi.org/10.1093/jiplp/jpad122}, year = {2024}, date = {2024-01-18}, journal = {Journal of Intellectual Property Law & Practice}, volume = {19}, issue = {2}, pages = {81-89}, abstract = {This article explains the historical development of Article 10bis of the Paris Convention and discusses core concepts underlying the international provision, in particular, the overarching requirement of honest practices in industrial or commercial matters, the question of a competitive relationship and the examples of unfair practices given in Article 10bis. It also sheds light on guidance following from the Model Provisions on Protection Against Unfair Competition which the World Intellectual Property Organization presented in 1996. The analysis shows that the honest practices test need not be understood in a traditional, empirical sense. More modern, functional approaches can be adopted to align the application of Article 10bis with a broader spectrum of policy goals: not only fair play between competitors but also consumer protection and the general public interest in a well-functioning marketplace. Similarly, the requirement of a competitive relationship need not focus on direct competition in the same market segment. An indirect competitive relationship can be deemed sufficient. While the prohibited acts listed in Article 10bis(3) reflect central categories of unfair behaviour and harm, current developments and challenges—ranging from computational advertising, influencer marketing and product recommender systems to questions surrounding data exclusivity and sustainability issues—raise the question whether an update and enrichment of the catalogue of prohibited acts could be necessary to provide guidance at the international level.}, }