JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Designing Competitive Markets for Industrial Data – Between Propertisation and Access
Get PDFAs part of the project to establish a Digital Single Market, the European Commission has launched a ‘Free Flow of Data’ initiative. This initiative is meant to enhance the growth potential of the emerging data economy, which is characterised by the digitisation of production (smart factories) and the advent of digitised products such as smart—driverless—cars, or smart wearables that will be able to communicate with each other and the environment through the Internet of Things. Furthermore, the enormous amount of data generated and controlled by the industry could serve as a most valuable input for other new data-driven services and for applications in the public interest, such as the operation of smart cities, smart and resource-efficient farming, or measures to prevent the spread of infectious diseases. Obviously, this new data economy has to rely on the commercialisation of data. But what kind of regulation is needed in order to make the data economy work? Do we need new ownership rights in data? Or should regulation focus on access in order to make data as widely available as possible? The European Commission is currently trying to formulate answers to these questions. This article aims to assist the Commission by working on a pro-competitive framework for issues of both ownership and access.** In so doing, this article undertakes two things: first, it analyses to what extent intellectual property laws already provide control over data and then discusses the need and justification for introducing new rules on data ownership. Second, it analyses whether EU competition law already provides remedies to promote access to data, and furthermore explores whether and under which conditions the introduction of new access regimes would be advisable. This article is to be considered as on-going research. It does not yet take into account more recent developments in 2017
Quantifying Key Characteristics of 71 Data Protection Laws
Get PDFThis paper presents a pioneering study that unlocks six characteristics in the literal text of 71 Data Protection Laws (DPLs). The characteristics are: the type of collection requirements; the presence of data protection authorities; data protection officers; data breach notification laws; monetary-; and criminal penalties. The quantification allows comparison of data protection laws with each other, such as a potential federal U.S. DPL with European DPLs. It can also be used for empirical legal research in information security by linking the data to other variables, for instance, deep packet inspection. There are some noteworthy initial results: only 5 out of 71 DPLs have penalties for non-compliance that exceed 1 million euro. Moreover, compared to the United States (US), few countries (21 out of 71) have data breach notification laws. Principal component analysis reveals that the six characteristics can be grouped in two unobserved factors, which explain ‘basic characteristics’ across laws and ‘add-ons’ to these characteristics. By combining these two factors a privacy index is constructed. Moreover, countries that are not known for their stringent privacy control such as Mauritius and Mexico occupy a top position in this index. Member States of the European Union have DPLs with a privacy control score above average but hold no absolute top position. It is hoped that these findings will open avenues for new research, such as adding more characteristics to the database and further quantification of (internet) law
Contracting Around Privacy: The (Behavioral) Law and Economics of Consent and Big Data
Get PDFEuropean privacy law rests on the implicit assumption that consent to the processing of personal data and the analysis of Big Data is a purely individual choice. Accordingly, privacy lawyers mainly focus on how to empower users to make free and informed choices, for instance through debiasing and nudging. However, a game theoretical analysis suggests that strategic considerations may be a driving force of consent under certain conditions. In environments relying on the use of Big Data, consent is likely to impose negative privacy externalities on other users and constrain their freedom of choice. By contrast, a behavioral economic analysis suggests that users are subject to bounded rationality and bounded willpower. While nudges, like default options, can enable users to make protective privacy choices in some cases, correcting cognitive deficits might facilitate market failures and accelerate the erosion of privacy in other cases. This counterintuitive conclusion shows that legal rules on consent and privacy contracts should be grounded on an assumption of ‘mixed rationalities’, i.e. on insights from both standard economics and behavioral economics. Hence, a sharper distinction between ‘paternalistic nudging’ and ‘non-paternalistic soft regulation’ to counter market failures is warranted
Novel EU Legal Requirements in Big Data Security: Big Data – Big Security Headaches?
Get PDFThis paper aims to provide an overview of the new legal requirements related to security and breach notification imposed on businesses in the European Union and to demonstrate their pertinence for big data service providers. In addition, it lays down practical recommendations for the implementation of those requirements into the internal security strategies of big data service providers
Digital Content and Sales or Service contracts under EU Law and Belgian/French Law
Get PDFThe rather novel concept of “digital content” is defined and regulated both in the Consumer Rights Directive and in the Proposal for a Directive on certain aspects concerning contracts for the supply of digital content (dated 9 December 2015). In this paper, the concept is presented, as well as the reasons why the European legislator adopted (or is willing to adopt) protection measures to the benefit of consumers in this context. Relying on this analysis, the paper will further discuss the articulation issues between the notion of “digital content” and other relevant concepts under EU Law and some national laws (of civil Law countries). First, a comparison between the notion of digital content and other concepts used at the EU level (and in the corresponding legal framework adopted in the Member States), in regulations protecting the consumers (the concepts of “goods”, “services”, “sales” or “services contracts”, etc.) will be carried out. The concept will then be compared with the classical notions used in Belgian (and French) Contract Law, especially in the Civil Code (“contract of enterprise”, “sales contract”, etc.)
Interoperability in the Digital Economy
Get PDFInteroperability has become a buzzword in European policy debates on the future of the digital economy. In its Digital Agenda, the EU Commission has identified a lack of interoperability as one of the significant obstacles to a thriving digital economy. The EU Commission and a number of other actors have advocated far-reaching policies for ensuring the interoperability of digital goods, services, platforms and communication networks. In this paper, we present a systematic framework for discussing interoperability problems from an economic and legal perspective and apply it to several interoperability issues such as, e.g., standardization, interoperability regulation in the field of electronic communication, duties of dominant firms (including platforms) to ensure horizontal and vertical interoperability and IP law exceptions in favor of interoperability. The complex trade-offs between benefits and costs of a higher degree of interoperability suggest the need for a careful and separate analysis of each specific interoperability issue, caution regarding a (top down) imposition of mandatory standards and interoperability obligations, and a greater focus on unilateral solutions of interoperability problems, such as adapters or converters. Within the framework of Art. 102 TFEU, EU competition law may be better advised to develop a workable test to address hurdles for unilateral interoperability solutions created by dominant firms, than to continue focusing on the essential facilities doctrine to mandate interoperability
What Rules Should Apply to Smart Consumer Goods? Goods with Embedded Digital Content in the Borderland Between the Digital Content Directive and “Normal” Contract Law
Get PDFThe European Commission’s approach in the “Proposal of Digital Content Directive” to regulate digital content contracts based on the object, rather than the type of contract, has led to a situation where a component of a product (the embedded digital content) can end up being subject to a contractual regime different from that applicable to the rest of the “smart” product. Different solutions have been proposed to solve this situation: firstly, one could apply goods rules to the whole product, including embedded digital content; alternatively, one could use split rules and subject the hardware of the product to goods rules and embedded digital content to digital content rules. One could even imagine subjecting the whole good to the digital content rules – an approach that would mean a major shift for the existing sales and leasing law. The article discusses the legal consequences of these different options, describes their advantages and disadvantages, and concludes that while there is no ideal solution to be found, the split-approach would be preferable
Ten Questions for Future Regulation of Big Data: A Comparative and Empirical Legal Study
Get PDFMuch has been written about Big Data from a technical, economical, juridical and ethical perspective. Still, very little empirical and comparative data is available on how Big Data is approached and regulated in Europe and beyond. This contribution makes a first effort to fill that gap by presenting the reactions to a survey on Big Data from the Data Protection Authorities of fourteen European countries and a comparative legal research of eleven countries. This contribution presents those results, addressing 10 challenges for the regulation of Big Data
Personal Data and Encryption in the European General Data Protection Regulation
Get PDFEncryption of personal data is widely regarded as a privacy preserving technology which could potentially play a key role for the compliance of innovative IT technology within the European data protection law framework. Therefore, in this paper, we examine the new EU General Data Protection Regulation’s relevant provisions regarding encryption – such as those for anonymisation and pseudonymisation – and assess whether encryption can serve as an anonymisation technique, which can lead to the non-applicability of the GDPR. However, the provisions of the GDPR regarding the material scope of the Regulation still leave space for legal uncertainty when determining whether a data subject is identifiable or not. Therefore, we inter alia assess the Opinion of the Advocate General of the European Court of Justice (ECJ) regarding a preliminary ruling on the interpretation of the dispute concerning whether a dynamic IP address can be considered as personal data, which may put an end to the dispute whether an absolute or a relative approach has to be used for the assessment of the identifiability of data subjects. Furthermore, we outline the issue of whether the anonymisation process itself constitutes a further processing of personal data which needs to have a legal basis in the GDPR. Finally, we give an overview of relevant encryption techniques and examine their impact upon the GDPR’s material scope
‘Abuse of Rights’ in Belgian and French Patent Law – A Case Law Analysis
Get PDFThis paper examines what types of actions undertaken by patent holders have been considered as abusive in the framework of French and Belgian patent litigation. Particular attention is given to the principle of the prohibition of “abuse of rights” (AoR). In the jurisdictions under scrutiny, the principle of AoR is essentially a jurisprudential construction in cases where judges faced a particular set of circumstances for which no codified rules were available. To investigate how judges deal with the prohibition of AoR in patent litigation and taking into account the jurisprudential nature of the principle, an in-depth and comparative case law analysis has been conducted. Although the number of cases in which patent holders have been sanctioned for such abuses is not overabundant, they do provide sufficient leads on what is understood by Belgian and French courts to constitute an abuse of patent rights. From this comparative analysis, useful lessons can be learned for the interpretation of the ambiguous notion of ‘abuse’ from a broader perspective