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Reconciling EU Copyright Protection With the Right to Research: Why We Need a General Research Exemption (Now!) external link
Waiting for the DSA’s Big Enforcement Moment external link
Abstract
This blog post explores the issue of DSA enforcement by the European Commission, focusing on the law’s systemic risk management provisions. It first briefly sketches the Commission’s role in regulatory oversight of the systemic risk framework and then sums up enforcement efforts to date, considering also the role of geopolitics in the Commission’s enforcement calculus.
Digital Services Act (DSA)
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The Obligations of Providers of General-Purpose AI Models external link
Abstract
During the legislative process, the EU Artificial Intelligence (AI) Act was amended to include provisions related to general-purpose AI (GPAI) models. These broadly relate to transparency towards downstream users and relevant regulators, in addition to obligations connected to intellectual property. In this paper, we provide detailed analysis of these new provisions in the context of current technological applications and emerging trajectories, connecting them to computing literature and practice, and the broader context of connected and adjacent legal regimes, in particular copyright and relevant emerging case law. We find that there are a significant number of inclarities, tensions and contradictions both within the text, between the text and other legal regimes, and between the text and guideline documents, such as the Code of Practice on General-Purpose AI and recent guidelines by the European Commission. We identify a range of issues with the scoping of the provisions which may undermine its policy goals and create loopholes for regulatory avoidance, such as those relating to non-commercial models, open-source models, and model finetuning along the value chain. We find that the Code of Practice contains significant omissions and misstatements, some of which may present a compliance risk for an entity choosing to rely on the Code. We do not consider the provisions on GPAI models which present a systemic risk, which are dealt with elsewhere in the volume which this work will form a part of.
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AI Act, code of practice, Copyright, Transparency
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National Security and New Forms of Surveillance: From the Data Retention Saga to a Data Subject Centred Approach
Abstract
National security is a regulatory complex area that brings together public and private actors performing a variety of functions for the safeguarding of the EU Member States’ national interests. The article critically reflects on the applicability of EU law in this area by examining the complexities and controversies surrounding the respective judiciary and legislative approaches as well as the emerging surveillance practices deployed under the veil of national security. It argues that, while it is laudable that some aspects of national security were brought within the scope of application of EU law by the CJEU through its data retention jurisprudence, the grounding of the EU law applicability on the activities of private entities (controllers) is problematic. In particular, it creates significant legal uncertainties as private and public bodies are increasingly intertwined in the field of security and Member States push back against such expansion of EU law, while the case law does not take into account new forms of intrusive surveillance such as Pegasus. To counter these issues, the article proposes a new data subject-focused approach for the grounding of the scope of application of EU law -including to national security measures- which shifts the focus from the entity carrying out the national security operation (controller) to the individuals being affected (data subject). As such, it aligns better with fundamental rights and the constitutional foundations of EU data protection law and is urgently needed in the rapidly privatised and algorithmised area of national security.
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Voorbereid external link
Abstract
Wetenschappers zijn het erover eens: wereldwijde catastrofe is nog nooit zo dichtbij geweest; de dreiging is nu groter dan tijdens de Koude Oorlog. Rechter-plaatsvervanger, advocaat, burgerrechtenactivist en journalist Ot van Daalen zag en voelde het overal om zich heen, en besloot het beest in de bek te kijken. Hij spitte overheidsdocumenten door, sprak unieke experts die normaal achter de schermen blijven, reisde het hele land door, bezocht bunkers en volgde survivaltraining. Zo kreeg hij een helder beeld van de rampscenario's voor Nederland - wat er kan gebeuren, hoe de overheid dan zal reageren en wat jij zelf kan doen om je beter voor te bereiden.
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Tokenistic Decentralisation or Non-Tokenistic Distributism: Capitalist Blockchain Narratives and Varoufakis’s Alternative external link
Abstract
Yanis Varoufakis wrote a science fiction novel, Another Now: Dispatches from an Alternative Present, to encourage post-capitalist political projects in our so-called real world. Costa, a protagonist from the novel, invents a portal that enables communication between his universe and a parallel universe. The two universes diverged after the global financial crisis in 2008. Private money networks like Bitcoin emerged in Costa’s capitalist universe, while in the alternative universe, a post-capitalist society uses blockchain technology for “a plain vanilla public payments system”. Our essay draws a sophistic comparison between liberal-cum-libertarian blockchain narratives from our universe and the science-fictional blockchain narrative from Another Now. We distinguish tokenistic decentralisation (a liberal-cum-libertarian notion) and non-tokenistic distributism (a post-capitalist concept). Liberal-cum-libertarian narratives treat blockchain as a cause of decentralisation and self-sovereignty (individual empowerment). Varoufakis’s science-fictional narrative, by contrast, describes the use of blockchain for a distributist political cause.