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Copyright and Data Protection
Abstract
This paper introduces the legal framework for the use of computer programmers, software developers, system analysts, program analysts, systems software designers, software application designers, source code editors and end-users who are taking over many of the tasks previously performed by programmers. They are required to share a strong understanding of ‘privacy by design’ and the legal rules before handling ‘Big Data’ and ‘Online content’, taking into consideration that the way the legislation shapes access to data may overlap or even conflict with IP rights (mainly copyright) and contract laws.
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In today’s algorithmic society, access to large-scale datasets is the sine qua non for any economic actor to reap the benefits of data-driven innovation (DDI). This article explores alternative mechanisms of data management in large-scale processing environments which can bolster access in view of the shortcomings of the existing data ownership-centric system. The scope of the analysis is limited to non-personal data. First, this contribution elaborates on the features and shortcomings of the data ownership-centric system and the existing legislation on data access. In fact, despite its ground-breaking potential, data access is not a widely available resource. It is subject, meanwhile, to the ability of several actors to control it, originating from data holders’ position of de facto control over data (“data ownership”), which is mostly anchored in technological, behavioural, and legal access barriers. This ownership-oriented setting thus stifles data sharing and opportunities for novel reuses of data. Despite these concerns, EU secondary legislation and case law (including the “essential facilities doctrine” of competition law) have not yet offered appropriate means to enable data access across society. Second, this article investigates whether alternative systems of data management based on the commons is a viable solution to open up access to raw non-personal data (RNPD). The commons as a conceptual notion and institutional mechanism values access and freedom to operate, instead of power to appropriate. The article homes in on two main reasons which substantiate why commons management of RNPD can be desirable. On the one hand, RNPD can be deemed a cooperative infrastructural resource that calls for being pulled out of its factual enclosure (“structuralist approach” of the commons). On the other hand, grasping RNPD as a commons means valuing its functional nature, making data available to a wide number of actors for the fulfilment of fundamental rights and enhancing human flourishing (“functionalist approach”). The article concludes with some thoughts on the lines of research which are still to be explored to put the commons-based vision of data management into practice.
Columbia Business Law Review, 2019(2).
Big Data analytics and artificial intelligence (AI) draw non-intuitive and unverifiable inferences and predictions about the behaviors, preferences, and private lives of individuals. These inferences draw on highly diverse and feature-rich data of unpredictable value, and create new opportunities for discriminatory, biased, and invasive decision-making. Data protection law is meant to protect people’s privacy, identity, reputation, and autonomy, but is currently failing to protect data subjects from the novel risks of inferential analytics. The legal status of inferences is heavily disputed in legal scholarship, and marked by inconsistencies and contradictions within and between the views of the Article 29 Working Party and the European Court of Justice (ECJ).
This Article shows that individuals are granted little control and oversight over how their personal data is used to draw inferences about them. Compared to other types of personal data, inferences are effectively ‘economy class’ personal data in the General Data Protection Regulation (GDPR). Data subjects’ rights to know about (Art 13-15), rectify (Art 16), delete (Art 17), object to (Art 21), or port (Art 20) personal data are significantly curtailed for inferences. The GDPR also provides insufficient protection against sensitive inferences (Art 9) or remedies to challenge inferences or important decisions based on them (Art 22(3)).
This situation is not accidental. In standing jurisprudence the ECJ has consistently restricted the remit of data protection law to assessing the legitimacy of input personal data undergoing processing, and to rectify, block, or erase it. Critically, the ECJ has likewise made clear that data protection law is not intended to ensure the accuracy of decisions and decision-making processes involving personal data, or to make these processes fully transparent. Current policy proposals addressing privacy protection (the ePrivacy Regulation and the EU Digital Content Directive) and Europe’s new Copyright Directive and Trade Secrets Directive also fail to close the GDPR’s accountability gaps concerning inferences.
This Article argues that a new data protection right, the ‘right to reasonable inferences’, is needed to help close the accountability gap currently posed by ‘high risk inferences’ , meaning inferences drawn from Big Data analytics that damage privacy or reputation, or have low verifiability in the sense of being predictive or opinion-based while being used in important decisions. This right would require ex-ante justification to be given by the data controller to establish whether an inference is reasonable. This disclosure would address (1) why certain data form a normatively acceptable basis from which to draw inferences; (2) why these inferences are relevant and normatively acceptable for the chosen processing purpose or type of automated decision; and (3) whether the data and methods used to draw the inferences are accurate and statistically reliable. The ex-ante justification is bolstered by an additional ex-post mechanism enabling unreasonable inferences to be challenged.
The paper discusses the right to obtain a copy of personal data based on the access right guaranteed in Articles 15 (3) and limited in 15 (4) of the GDPR. Main question is to what extent, the access right provided to data subject under the data protection rules is compatible with copyright. We argue that the subject matter of Article 15 (3) of the GDPR - copy of personal data – may infringe copyright protection of third parties but not a copyright protection attributed to the data controllers.Firstly, because the right of access and copyright may be in certain circumstances incompatible. Secondly, the data controllers are primarily responsible for balancing conflicting rights and neutral balancing exercise could only be applied by the Data Protection Authorities. Thirdly, the case law of the CJEU regarding this issue will need to be developed because the copy as a result of access right may be considered as a new element in data protection law.
Wesley Newcomb Hohfeld’s 1913 article, Fundamental Legal Conceptions as Applied in Judicial Reasoning, is widely viewed as brilliant. A thrilling read, it is not. More like chewing on sawdust. The arguments are dense, the examples unfriendly, and the prose turgid.“How to Do Things With Hohfeld” is an effort to provide an accessible and sawdust-free account of Hohfeld’s article, as well as to show how and why his analysis of “legal relations” (e.g., right/duty, etc.) matters. Perhaps the principal reason is that the analysis furnishes a discriminating platform to discern the economic and political import of legal rules and legal regimes.My project here is to offer a forward-leaning interpretation of Hohfeld — to show how and why his insights remain highly relevant today. The article engages with the jural relations, decomposition and recomposition, the bundle of relations, the critique of reification, and recent discussions in property theory as well as the “New Private Law.” I am keen on protecting Hohfeld’s platform from some (legal realist) over-extensions as well as showing how the views of the “Hohfeld critics” are in many ways consonant with Hohfeld’s own thinking. The article closes with some questions about the limitations of Hofheld’s approach.
In this paper, Ms. Wilkinson covers the relationship between the copyright and the data protection regimes in Canada. In her study of the question, Ms. Wilkinson explains how the control over information created under copyright regime contrasted with the control created under data protection legislation and how the control over information created by the common law action for breach of confidence contrasted with the control created under data protection regimes. She also presents the rules stated by the Copyright Act that governed the access and data protection administration, the copyright administration and the collective societies. In the second section of her paper, Ms. Wilkinson explores some specific concerns related to the Copyright Board, sch as the question of the Board and the access and personal data protection, the Board and its management of the information received from third parties and the information about identifiable individuals. She then identifies the activities of the Copyright Board which may be exempt from access and data protection as she tries to predict if the activities of the Copyright Board which are exempt from the access and data protection regimes are open to challenge on any other grounds.
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