Creative work and communicative norms: Perspectives from legal philosophy

Creative work and communicative norms: Perspectives from legal philosophy external link

Biron, L.

1219, pp: 19-44

Abstract

In consideration of the application of insights from the humanities to the interpretation of core legal concepts in copyright, this chapter examines three questions: first, what is a ‘work of authorship’, and why does copyright law place such a strong emphasis on originality for determining what counts as a work? Second, can and should we modify ‘romantic’ conceptions of authorship, to take into account the various ways in which authorial practices seem to conflict with their highly individualistic and creator-centred focus? Finally, how might copyright law make sense of the various ways in which authorship is collaborative, in light of its somewhat restrictive definitions of co-authorship? This chapter will consider the contribution that existing philosophical literature on the justification of copyright might have to these questions. It begins by outlining three categories that have application to questions about authorship – labour, personality and communication – and explaining a deeper distinction between proprietary and non-proprietary accounts of authorship which underlies these categories. It goes on to illustrate how these differing approaches to authorship can be applied to the three questions under consideration. For reasons of space and practicality, the focus of this chapter will reflect my expertise in Anglo-American copyright theory and doctrine.

Links

http://www.ivir.nl/publicaties/download/1469.pdf

Auteursrecht, Intellectuele eigendom

RIS

TY  - CHAP
AU  - Biron, L.
PY  - 1219
DA  - 2014-12-19
T1  - Creative work and communicative norms: Perspectives from legal philosophy
SP  - 19-44
UR  - http://www.ivir.nl/publicaties/download/1469.pdf
AB  - In consideration of the application of insights from the humanities to the interpretation of core legal concepts in copyright, this chapter examines three questions: first, what is a ‘work of authorship’, and why does copyright law place such a strong emphasis on originality for determining what counts as a work? Second, can and should we modify ‘romantic’ conceptions of authorship, to take into account the various ways in which authorial practices seem to conflict with their highly individualistic and creator-centred focus? Finally, how might copyright law make sense of the various ways in which authorship is collaborative, in light of its somewhat restrictive definitions of co-authorship? This chapter will consider the contribution that existing philosophical literature on the justification of copyright might have to these questions. It begins by outlining three categories that have application to questions about authorship – labour, personality and communication – and explaining a deeper distinction between proprietary and non-proprietary accounts of authorship which underlies these categories. It goes on to illustrate how these differing approaches to authorship can be applied to the three questions under consideration. For reasons of space and practicality, the focus of this chapter will reflect my expertise in Anglo-American copyright theory and doctrine.
K1  - Auteursrecht
K1  - Intellectuele eigendom
ER  -

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Bibtex

Chapter{Biron2014,
	title = {Creative work and communicative norms: Perspectives from legal philosophy},
	author = {Biron, L.},
	year = {1219},
	date = {2014-12-19},
	pages = {19-44},
	abstract = {In consideration of the application of insights from the humanities to the interpretation of core legal concepts in copyright, this chapter examines three questions: first, what is a ‘work of authorship’, and why does copyright law place such a strong emphasis on originality for determining what counts as a work? Second, can and should we modify ‘romantic’ conceptions of authorship, to take into account the various ways in which authorial practices seem to conflict with their highly individualistic and creator-centred focus? Finally, how might copyright law make sense of the various ways in which authorship is collaborative, in light of its somewhat restrictive definitions of co-authorship? This chapter will consider the contribution that existing philosophical literature on the justification of copyright might have to these questions. It begins by outlining three categories that have application to questions about authorship – labour, personality and communication – and explaining a deeper distinction between proprietary and non-proprietary accounts of authorship which underlies these categories. It goes on to illustrate how these differing approaches to authorship can be applied to the three questions under consideration. For reasons of space and practicality, the focus of this chapter will reflect my expertise in Anglo-American copyright theory and doctrine.},
	keywords = {Auteursrecht, Intellectuele eigendom},
}

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Creativity, autonomy and personal touch: A critical appraisal of the CJEU’s originality test for copyright external link

van Gompel, S.

1218, pp: 95-143

Abstract

Copyright law’s originality threshold is not a high-to-attain standard. Recent case law of the Court of Justice of the European Union (CJEU) confirms that copyright extends to subject-matter that is original in the sense that it is the ‘author’s own intellectual creation’ (Infopaq International, 2009, § 37; Bezpečnostní softwarová asociace, 2010, § 46; Football Association Premier League, 2011, § 97; Painer, 2011, § 87; Football Dataco, 2012, § 37; and SAS, 2012, § 45) and that no other criteria may be applied to determine its eligibility for protection. In the Eva-Maria Painer case, the Court clarified that an intellectual creation is the author’s own ‘if it reflects the author’s personality’ and that this is the case ‘if the author was able to express his creative abilities in the production of the work by making free and creative choices’ (2011, §§ 88–89). This was reiterated in the Football Dataco case, where it was once more emphasised that, for an intellectual creation to be original, the author must have stamped it with his ‘personal touch’ by making ‘free and creative choices’ during its production (2012, § 38). The meaning and substance of the CJEU’s originality criterion has not yet attracted much analytical scrutiny. In particular, the limits inherent in the CJEU’s originality standard have received little attention in legal doctrine – let alone in court decisions (although that is probably not where one would expect a critical review of the test be conducted in the first place). This is remarkable, seeing that copyright regulates such a wide variety of cultural production and may restrict the use of even the most low-key, routine creations that surround us in everyday life. A more critical and out-of-the-box reading of the ‘free and creative choices’-language suggests that the CJEU’s originality standard may perhaps impose more limitations than is currently recognised in legal discourse. For one thing, authors are of course not autonomous creators who work in a vacuum. Creative processes are contingent on many external factors. Cultural productions are usually made with audiences in mind and individual creators operate within social, technical and institutional environments with all of the attendant constraints. This implies that, in reality, the autonomy of authors to make free and creative choices is often naturally restricted.

Links

http://www.ivir.nl/publicaties/download/1468.pdf

Auteursrecht, Intellectuele eigendom

RIS

TY  - CHAP
AU  - van Gompel, S.
PY  - 1218
DA  - 2014-12-18
T1  - Creativity, autonomy and personal touch: A critical appraisal of the CJEU’s originality test for copyright
SP  - 95-143
UR  - http://www.ivir.nl/publicaties/download/1468.pdf
AB  - Copyright law’s originality threshold is not a high-to-attain standard. Recent case law of the Court of Justice of the European Union (CJEU) confirms that copyright extends to subject-matter that is original in the sense that it is the ‘author’s own intellectual creation’ (Infopaq International, 2009, § 37; Bezpečnostní softwarová asociace, 2010, § 46; Football Association Premier League, 2011, § 97; Painer, 2011, § 87; Football Dataco, 2012, § 37; and SAS, 2012, § 45) and that no other criteria may be applied to determine its eligibility for protection. In the Eva-Maria Painer case, the Court clarified that an intellectual creation is the author’s own ‘if it reflects the author’s personality’ and that this is the case ‘if the author was able to express his creative abilities in the production of the work by making free and creative choices’ (2011, §§ 88–89). This was reiterated in the Football Dataco case, where it was once more emphasised that, for an intellectual creation to be original, the author must have stamped it with his ‘personal touch’ by making ‘free and creative choices’ during its production (2012, § 38). The meaning and substance of the CJEU’s originality criterion has not yet attracted much analytical scrutiny. In particular, the limits inherent in the CJEU’s originality standard have received little attention in legal doctrine – let alone in court decisions (although that is probably not where one would expect a critical review of the test be conducted in the first place). This is remarkable, seeing that copyright regulates such a wide variety of cultural production and may restrict the use of even the most low-key, routine creations that surround us in everyday life. A more critical and out-of-the-box reading of the ‘free and creative choices’-language suggests that the CJEU’s originality standard may perhaps impose more limitations than is currently recognised in legal discourse. For one thing, authors are of course not autonomous creators who work in a vacuum. Creative processes are contingent on many external factors. Cultural productions are usually made with audiences in mind and individual creators operate within social, technical and institutional environments with all of the attendant constraints. This implies that, in reality, the autonomy of authors to make free and creative choices is often naturally restricted.
K1  - Auteursrecht
K1  - Intellectuele eigendom
ER  -

Save .RIS

Bibtex

Chapter{vanGompel2014,
	title = {Creativity, autonomy and personal touch: A critical appraisal of the CJEU’s originality test for copyright},
	author = {van Gompel, S.},
	year = {1218},
	date = {2014-12-18},
	pages = {95-143},
	abstract = {Copyright law’s originality threshold is not a high-to-attain standard. Recent case law of the Court of Justice of the European Union (CJEU) confirms that copyright extends to subject-matter that is original in the sense that it is the ‘author’s own intellectual creation’ (Infopaq International, 2009, § 37; Bezpečnostní softwarová asociace, 2010, § 46; Football Association Premier League, 2011, § 97; Painer, 2011, § 87; Football Dataco, 2012, § 37; and SAS, 2012, § 45) and that no other criteria may be applied to determine its eligibility for protection. In the Eva-Maria Painer case, the Court clarified that an intellectual creation is the author’s own ‘if it reflects the author’s personality’ and that this is the case ‘if the author was able to express his creative abilities in the production of the work by making free and creative choices’ (2011, §§ 88–89). This was reiterated in the Football Dataco case, where it was once more emphasised that, for an intellectual creation to be original, the author must have stamped it with his ‘personal touch’ by making ‘free and creative choices’ during its production (2012, § 38). The meaning and substance of the CJEU’s originality criterion has not yet attracted much analytical scrutiny. In particular, the limits inherent in the CJEU’s originality standard have received little attention in legal doctrine – let alone in court decisions (although that is probably not where one would expect a critical review of the test be conducted in the first place). This is remarkable, seeing that copyright regulates such a wide variety of cultural production and may restrict the use of even the most low-key, routine creations that surround us in everyday life. A more critical and out-of-the-box reading of the ‘free and creative choices’-language suggests that the CJEU’s originality standard may perhaps impose more limitations than is currently recognised in legal discourse. For one thing, authors are of course not autonomous creators who work in a vacuum. Creative processes are contingent on many external factors. Cultural productions are usually made with audiences in mind and individual creators operate within social, technical and institutional environments with all of the attendant constraints. This implies that, in reality, the autonomy of authors to make free and creative choices is often naturally restricted.},
	keywords = {Auteursrecht, Intellectuele eigendom},
}

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Reassessing the challenge of the digital: An empirical perspective on authorship and copyright external link

Cooper, E.

1217, pp: 175-214

Abstract

This chapter explores these perceived challenges of the digital for copyright, through ideas about authorship that underpin so-called creative practices today. It does so through a qualitative empirical study that involved semistructured interviews with ‘artists’ and ‘poets’ who use digital technology. The interviews sought to uncover the extent to which the participation of many people was characteristic of the interviewees’ work and their views about ‘authorship’. For example, is authorship of any significance to interviewee ‘artists’ and ‘poets’? If so, who do they consider to be the author? In situations where many have contributed, how and why do they attribute authorship to some contributors while denying it to others? Finally, why is authorship important to the interviewees, if at all, and does this bear any relation to copyright’s proprietary author?

Links

http://www.ivir.nl/publicaties/download/1467.pdf

Auteursrecht, Intellectuele eigendom

RIS

TY  - CHAP
AU  - Cooper, E.
PY  - 1217
DA  - 2014-12-17
T1  - Reassessing the challenge of the digital: An empirical perspective on authorship and copyright
SP  - 175-214
UR  - http://www.ivir.nl/publicaties/download/1467.pdf
AB  - This chapter explores these perceived challenges of the digital for copyright, through ideas about authorship that underpin so-called creative practices today. It does so through a qualitative empirical study that involved semistructured interviews with ‘artists’ and ‘poets’ who use digital technology. The interviews sought to uncover the extent to which the participation of many people was characteristic of the interviewees’ work and their views about ‘authorship’. For example, is authorship of any significance to interviewee ‘artists’ and ‘poets’? If so, who do they consider to be the author? In situations where many have contributed, how and why do they attribute authorship to some contributors while denying it to others? Finally, why is authorship important to the interviewees, if at all, and does this bear any relation to copyright’s proprietary author?
K1  - Auteursrecht
K1  - Intellectuele eigendom
ER  -

Save .RIS

Bibtex

Chapter{Cooper2014,
	title = {Reassessing the challenge of the digital: An empirical perspective on authorship and copyright},
	author = {Cooper, E.},
	year = {1217},
	date = {2014-12-17},
	pages = {175-214},
	abstract = {This chapter explores these perceived challenges of the digital for copyright, through ideas about authorship that underpin so-called creative practices today. It does so through a qualitative empirical study that involved semistructured interviews with ‘artists’ and ‘poets’ who use digital technology. The interviews sought to uncover the extent to which the participation of many people was characteristic of the interviewees’ work and their views about ‘authorship’. For example, is authorship of any significance to interviewee ‘artists’ and ‘poets’? If so, who do they consider to be the author? In situations where many have contributed, how and why do they attribute authorship to some contributors while denying it to others? Finally, why is authorship important to the interviewees, if at all, and does this bear any relation to copyright’s proprietary author?},
	keywords = {Auteursrecht, Intellectuele eigendom},
}

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Romantic authorship in copyright law and the uses of aesthetics external link

Lavik, E.

1219, pp: 45-94

Abstract

Scholars of the arts as well as scholars of copyright law – especially in the US – have for decades struggled to kill off the ideology of Romantic authorship, though it is far from clear precisely what it consists of, or why and to whom it poses such danger. The situation brings to mind film historian Tom Gunning’s memorable observation in a different context that the persistent attacks ‘begin to take on something of the obsessive and possibly necrophilic pleasure of beating a dead horse’ (1998, p. xiii). This chapter is divided into two main parts. The first part critically examines the idea that the myth of Romantic authorship is deeply ingrained in copyright law and has propelled its expansion. The second part explores the broader but related issue of how insights from the humanities can usefully inform copyright scholarship. Taking as its starting point Roland Barthes’ famous essay ‘The Death of the Author’ it argues that it is extremely demanding to find common ground, for even though the disciplines overlap conceptually they are fundamentally at cross-purposes epistemologically. I maintain that we must first identify where the aims and practices of aesthetics and law actually converge, and deem it to be in the area of interpretation and evaluation, which is obviously one of the core competences of scholars of the arts, and also something that courts resort to at the infringement stage.

Links

http://www.ivir.nl/publicaties/download/1463.pdf

Auteursrecht, Intellectuele eigendom

RIS

TY  - CHAP
AU  - Lavik, E.
PY  - 1219
DA  - 2014-12-19
T1  - Romantic authorship in copyright law and the uses of aesthetics
SP  - 45-94
UR  - http://www.ivir.nl/publicaties/download/1463.pdf
AB  - Scholars of the arts as well as scholars of copyright law – especially in the US – have for decades struggled to kill off the ideology of Romantic authorship, though it is far from clear precisely what it consists of, or why and to whom it poses such danger. The situation brings to mind film historian Tom Gunning’s memorable observation in a different context that the persistent attacks ‘begin to take on something of the obsessive and possibly necrophilic pleasure of beating a dead horse’ (1998, p. xiii). This chapter is divided into two main parts. The first part critically examines the idea that the myth of Romantic authorship is deeply ingrained in copyright law and has propelled its expansion. The second part explores the broader but related issue of how insights from the humanities can usefully inform copyright scholarship. Taking as its starting point Roland Barthes’ famous essay ‘The Death of the Author’ it argues that it is extremely demanding to find common ground, for even though the disciplines overlap conceptually they are fundamentally at cross-purposes epistemologically. I maintain that we must first identify where the aims and practices of aesthetics and law actually converge, and deem it to be in the area of interpretation and evaluation, which is obviously one of the core competences	of scholars of the arts, and also something that courts resort to at the infringement stage.
K1  - Auteursrecht
K1  - Intellectuele eigendom
ER  -

Save .RIS

Bibtex

Chapter{Lavik2014b,
	title = {Romantic authorship in copyright law and the uses of aesthetics},
	author = {Lavik, E.},
	year = {1219},
	date = {2014-12-19},
	pages = {45-94},
	abstract = {Scholars of the arts as well as scholars of copyright law – especially in the US – have for decades struggled to kill off the ideology of Romantic authorship, though it is far from clear precisely what it consists of, or why and to whom it poses such danger. The situation brings to mind film historian Tom Gunning’s memorable observation in a different context that the persistent attacks ‘begin to take on something of the obsessive and possibly necrophilic pleasure of beating a dead horse’ (1998, p. xiii). This chapter is divided into two main parts. The first part critically examines the idea that the myth of Romantic authorship is deeply ingrained in copyright law and has propelled its expansion. The second part explores the broader but related issue of how insights from the humanities can usefully inform copyright scholarship. Taking as its starting point Roland Barthes’ famous essay ‘The Death of the Author’ it argues that it is extremely demanding to find common ground, for even though the disciplines overlap conceptually they are fundamentally at cross-purposes epistemologically. I maintain that we must first identify where the aims and practices of aesthetics and law actually converge, and deem it to be in the area of interpretation and evaluation, which is obviously one of the core competences	of scholars of the arts, and also something that courts resort to at the infringement stage.},
	keywords = {Auteursrecht, Intellectuele eigendom},
}

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Adapting the work external link

van Eechoud, M.

1218, pp: 145-174

Abstract

My focus in this piece is on the interplay between the legal concepts of work, copy and adaptation in light of the now ubiquitous ‘new’ forms or genres of works that online networks enabled. Can European copyright law accommodate the increased fluidity of some of these work genres? What avenues might be taken to attenuate the gap between legal and social practices? Is a more flexible system of limitations enough? Or do we need a wholesale rethink of the work concept? Might a more relaxed notion of copying and especially of adapting suffice? What would that mean for the kind of copyright infringement analysis courts engage in? My ambition is to explore potential avenues for reform, and in doing so take on board some insights from non-legal disciplines, notably genre and adaptations studies.

Links

http://www.ivir.nl/publicaties/download/1461.pdf

Auteursrecht, Intellectuele eigendom

RIS

TY  - CHAP
AU  - van Eechoud, M.
PY  - 1218
DA  - 2014-12-18
T1  - Adapting the work
SP  - 145-174
UR  - http://www.ivir.nl/publicaties/download/1461.pdf
AB  - My focus in this piece is on the interplay between the legal concepts of work, copy and adaptation in light of the now ubiquitous ‘new’ forms or genres of works that online networks enabled. Can European copyright law accommodate the increased fluidity of some of these work genres? What avenues might be taken to attenuate the gap between legal and social practices? Is a more flexible system of limitations enough? Or do we need a wholesale rethink of the work concept? Might a more relaxed notion of copying and especially of adapting suffice? What would that mean for the kind of copyright infringement analysis courts engage in? My ambition is to explore potential avenues for reform, and in doing so take on board some insights from non-legal disciplines, notably genre and adaptations studies.
K1  - Auteursrecht
K1  - Intellectuele eigendom
ER  -

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Bibtex

Chapter{vanEechoud2014c,
	title = {Adapting the work},
	author = {van Eechoud, M.},
	year = {1218},
	date = {2014-12-18},
	pages = {145-174},
	abstract = {My focus in this piece is on the interplay between the legal concepts of work, copy and adaptation in light of the now ubiquitous ‘new’ forms or genres of works that online networks enabled. Can European copyright law accommodate the increased fluidity of some of these work genres? What avenues might be taken to attenuate the gap between legal and social practices? Is a more flexible system of limitations enough? Or do we need a wholesale rethink of the work concept? Might a more relaxed notion of copying and especially of adapting suffice? What would that mean for the kind of copyright infringement analysis courts engage in? My ambition is to explore potential avenues for reform, and in doing so take on board some insights from non-legal disciplines, notably genre and adaptations studies.},
	keywords = {Auteursrecht, Intellectuele eigendom},
}

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Annotatie bij Hof van Justitie EU 3 september 2014 (Deckmyn / Vandersteen) external link

J.M. Breemen

European Human Rights Cases, num: 12, pp: 657-662., 2014

Abstract

Grote Kamer. Auteursrecht. Uitleg parodie-exceptie. Vrijheid van meningsuiting. Politieke spotprent.

Links

http://www.ivir.nl/publicaties/download/1459.pdf

Auteursrecht, Intellectuele eigendom, Parodie exceptie, Politieke spotprent, Vrijheid van meningsuiting

RIS

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Creativity and the sense of collective ownership in theatre and popular music external link

Gripsrud, J.

1216, pp: 215-236

Abstract

The purpose of the research presented here has been to investigate empirically how practising artists, in art forms where production is predominantly of a collective nature, feel and think about the nature of their contribution to the finished whole. More precisely, the idea is to explore to which extent those involved in the collective production of art have a sense or feeling of ownership vis-a-vis the outcome of the creative process, and what they think this might entail in terms of financial and other rewards. On this basis, I wish to raise some questions regarding the role of current copyright law in relation to actual artistic practices.

Links

http://www.ivir.nl/publicaties/download/1458.pdf

Auteursrecht, Intellectuele eigendom

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Discontinuities between legal conceptions of authorship and social practices: What, if anything, is to be done? external link

L. Bently & L. Biron

1216, pp: 237-276

Abstract

Authorship is central to the operation of copyright as a regulatory tool, but copyright law’s conception of ‘authorship’ appears to be ‘out of sync’ with a wide range of social practices: either copyright makes authors-in-law out of social ‘non-authors’, or vice versa. After offering three examples (scientific credit, conceptual art and literary editing)1 this contribution considers why these differences have emerged and whether these discontinuities should be thought of as a matter of concern. It appraises a number of academic proposals as to what might be done about these discontinuities, and offers its own suggestion, namely, the deployment of a more open-textured concept of authorship, one that is able to respond flexibly to varied contexts, social understandings and practices, but limited in application to matters of attribution.

Links

http://www.ivir.nl/publicaties/download/1457.pdf

Auteursrecht, Intellectuele eigendom

RIS

TY  - CHAP
AU  - L. Bently
AU  - L. Biron
PY  - 1216
DA  - 2014-12-16
T1  - Discontinuities between legal conceptions of authorship and social practices: What, if anything, is to be done?
SP  - 237-276
UR  - http://www.ivir.nl/publicaties/download/1457.pdf
AB  - Authorship is central to the operation of copyright as a regulatory tool, but copyright law’s conception of ‘authorship’ appears to be ‘out of sync’ with a wide range of social practices: either copyright makes authors-in-law out of social ‘non-authors’, or vice versa. After offering three examples (scientific credit, conceptual art and literary editing)1 this contribution considers why these differences have emerged and whether these discontinuities should be thought of as a matter of concern. It appraises a number of academic proposals as to what might be done about these discontinuities, and offers its own suggestion, namely, the deployment of a more open-textured concept of authorship, one that is able to respond flexibly to varied contexts, social understandings and practices, but limited in application to matters of attribution.
K1  - Auteursrecht
K1  - Intellectuele eigendom
ER  -

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Bibtex

Chapter{Bently2014,
	title = {Discontinuities between legal conceptions of authorship and social practices: What, if anything, is to be done?},
	author = {L. Bently and L. Biron},
	year = {1216},
	date = {2014-12-16},
	pages = {237-276},
	abstract = {Authorship is central to the operation of copyright as a regulatory tool, but copyright law’s conception of ‘authorship’ appears to be ‘out of sync’ with a wide range of social practices: either copyright makes authors-in-law out of social ‘non-authors’, or vice versa. After offering three examples (scientific credit, conceptual art and literary editing)1 this contribution considers why these differences have emerged and whether these discontinuities should be thought of as a matter of concern. It appraises a number of academic proposals as to what might be done about these discontinuities, and offers its own suggestion, namely, the deployment of a more open-textured concept of authorship, one that is able to respond flexibly to varied contexts, social understandings and practices, but limited in application to matters of attribution.},
	keywords = {Auteursrecht, Intellectuele eigendom},
}

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The Court of Justice and the Data Retention Directive in Digital Rights Ireland external link

Irion, K.

European Law Review, num: 6, pp: 835-850., 2015

Abstract

In Digital Rights Ireland, the Court of Justice invalidated the 2006 Data Retention Directive, which required private providers to retain for a considerable period electronic communication metadata for law enforcement purposes. In this landmark ruling, the EU judiciary introduced a strict scrutiny test for EU legislative acts that interfere seriously with important rights protected by the Charter of Fundamental Rights and the European Convention on Human Rights—in this case, the rights to privacy and data protection—and applied a rigorous assessment of the proportionality of the measure under the Charter, criticising numerous aspects of the Directive. This article presents and analyses the judgment, discussing its implications for constitutional review and constitutionalism in the European Union, and the substantive and procedural constraints that it imposes on EU and national data retention schemes. It concludes by reflecting on the ruling’s impact on European integration and data related policies.

Links

http://www.ivir.nl/publicaties/download/1456.pdf

Data protection, data retention, electronic communications, EU law, Fundamental rights, Grondrechten, Ireland, Personal data, Privacy, proportionality

RIS

TY  - JOUR
AU  - Irion, K.
PY  - 0115
DA  - 2015-01-15
T1  - The Court of Justice and the Data Retention Directive in Digital Rights Ireland
JO  - European Law Review
NV  - 6
SP  - 835-850.
UR  - http://www.ivir.nl/publicaties/download/1456.pdf
AB  - In Digital Rights Ireland, the Court of Justice invalidated the 2006 Data Retention Directive, which required private providers to retain for a considerable period electronic communication metadata for law enforcement purposes. In this landmark ruling, the EU judiciary introduced a strict scrutiny test for EU legislative acts that interfere seriously with important rights protected by the Charter of Fundamental Rights and the European Convention on Human Rights—in this case, the rights to privacy and data protection—and applied a rigorous assessment of the proportionality of the measure under the Charter, criticising numerous aspects of the Directive. This article presents and analyses the judgment, discussing its implications for constitutional review and constitutionalism in the European Union, and the substantive and procedural constraints that it imposes on EU and national data retention schemes. It concludes by reflecting on the ruling’s impact on European integration and data related policies.
K1  - Data protection
K1  - data retention
K1  - electronic communications
K1  - EU law
K1  - Fundamental rights
K1  - Grondrechten
K1  - Ireland
K1  - Personal data
K1  - Privacy
K1  - proportionality
ER  -

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Bibtex

Article{nokey,
	title = {The Court of Justice and the Data Retention Directive in Digital Rights Ireland},
	author = {Irion, K.},
	year = {0115},
	date = {2015-01-15},
	journal = {European Law Review},
	number = {6},
	pages = {835-850.},
	abstract = {In Digital Rights Ireland, the Court of Justice invalidated the 2006 Data Retention Directive, which required private providers to retain for a considerable period electronic communication metadata for law enforcement purposes. In this landmark ruling, the EU judiciary introduced a strict scrutiny test for EU legislative acts that interfere seriously with important rights protected by the Charter of Fundamental Rights and the European Convention on Human Rights—in this case, the rights to privacy and data protection—and applied a rigorous assessment of the proportionality of the measure under the Charter, criticising numerous aspects of the Directive. This article presents and analyses the judgment, discussing its implications for constitutional review and constitutionalism in the European Union, and the substantive and procedural constraints that it imposes on EU and national data retention schemes. It concludes by reflecting on the ruling’s impact on European integration and data related policies.},
	keywords = {Data protection, data retention, electronic communications, EU law, Fundamental rights, Grondrechten, Ireland, Personal data, Privacy, proportionality},
}

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Improving Privacy Protection in the area of Behavioural Targeting / Betere privacybescherming op het gebied van behavioural targeting external link

Zuiderveen Borgesius, F.

2014

Links

http://www.ivir.nl/publicaties/download/1455.pdf

Grondrechten, Privacy

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