TILTing Perspectives 2019 Report 1

How time flies! This Kat can hardly believe it has been two years since attending her last TILTing Perspectives Conference! Again in a lovely vernal day, the Tilburg Institute for Law, Technology, and Society (TILT), for the 6th time, has brought together researchers, practitioners, policy makers, and civil society at the intersection of law and regulation, technology, and society to share insights, exchange ideas and formulate answers to contemporary challenges related to technological innovation, at the TILTing Perspectives 2019 Conference.

Opening speech 

The conference was very well-attended. Prof. Emile Aarts (rector TU), Prof. Geert Vervaeke (dean TU) and Prof. Ronald Leenes warmly welcame the participants. With regard to “Regulating a world in transition”, namely the theme of TILTing Perspectives Conference 2019, they pointed out that currently we are all at a stage in which we need to clean up the 'mess' created during the process of innovation. They encouraged the audience from different disciplines to work together, to achieve something that would bring all of us further ahead, in an age where behaviour and normative science are more and more important to answering the question as to what kind of world we would like to live in. 

Karen Yeung (Birmingham Law School) delivered the first keynote speech on “Law, Regulation & Technology: Prospects and pitfalls for a fledgling field”. Given that much of the materials she discussed are unpublished, an in-depth summary of her talk is not possible. The main message, however, was that normative researchers should really make efforts to understand how the technology works. Further, we should be aware of what we do not know, and avoid using problematic interchangeable terms. 

Besides the plenary sessions, the conference features six parallel sessions, respectively on data protection, IP, digital clearinghouse, AI, justice and data market, and on health and environment. Below is the report of the IP Track which this Kat attended on the first day. 

Morning Session 

IP Track 1: Data sharing, ownership and governance 

1. 

The first to present was Prof. Michal Gal (University of Haifa) on the Chilling effects of governance-by-data on innovation. 

Big data has become an important resource, not only for commerce, but also for governance (i.e. the ‘dual use of data’). Governance-by-data seeks to take advantage of the bulk of data collected by private firms to make law enforcement more efficient. So far, literature has generally overlooked the implications of such dual use of data for data markets and data-driven innovation. 

In Michal’s view, governance-by-data may create chilling effects that could distort data collection and data-driven innovation. She mostly challenged two assumptions, namely that (1) data would be shared with the government at low, competitive prices; and (2) incentives to collect data are given, and that firms would continue to collect data, notwithstanding governmental access to such data. 

It has been shown that in some instances an inverse relationship exists between incentives for collecting data, and sharing it for the purpose of governance. Moreover, the incentives of data subjects to allow the collection of data by private entities might also change, thereby potentially affecting the efficiency of data-driven markets and subsequently, data-driven-innovation. As a result, data markets might not provide sufficient and adequate data to support digital-governance. This, in turn, might significantly affect welfare. “The bottom line is”, she concluded, that “governance-by-data creates inherent tension with data markets”. 

* This presentation was mainly based on the paper co-authored by Prof. Michal Gal and Prof. Niva Elkin-Koren which is forthcoming of University of Chicago Law Review (2018). The SSRN source is accessible here.

2. 

Natasha Tusikov (Assistant Professor, Criminology Program, Department of Social Science, York University) presented on You don’t own your tractor: redefining ownership in the Internet of things. 

“A vehicle owner does not acquire copyrights for software in the vehicle.” “And therefore the consumer cannot properly be considered as an ‘owner’ of the vehicle software” – Natasha started her presentation on precarious ownership by referring to the claims of John Deere submitted in a government policy review to the U.S. government in 2014, in which the company’s argument rested on the claim that tractor buyers do not own the networked software systems that are integral to the operation of modern tractors. 

Tractors, like many other vehicles, household appliances, and common electronic devices are increasingly no longer just mechanical devices: many depend on software for their functionality. Today, the fast growing Internet of Things (IoT)—internet-connected software embedded within physical products—has the potential to shift fundamentally traditional conceptions of ownership and the ways people can access, use, and control information. 

Drawing upon a knowledge regulation framework influenced by Susan Strange, Natasha opines that the IoT industry exemplifies the central role that knowledge governance now plays in the global political economy. She explains how companies that own the knowledge integral to the IoT’s functionality (the software) control that knowledge through IP laws, especially copyright, and the ubiquitous surveillance of their customers. These companies retain control over the software even after its purchase, meaning that they have a newly expanded regulatory capacity to monitor and control how their products are used. The private post-purchase control that IoT companies exert over smart goods represents a significant change in private actors’ regulatory capacity to set rules governing knowledge. 

Natasha contributed to a chapter to a forthcoming book on this topic: see more information from here. 

3. 

Begoña Gonzalez Otero shared her thoughts on Evaluating the EC private data sharing principles: setting a mantra for artificial intelligence nirvana? 

On April 25, 2018, the European Commission published a series of communications related to data trading and AI, including one called “Towards a Common European Data Space” that came with a working document: “Guidance on Sharing Private Sector Data in the European Data Economy”. Both documents introduced two different sets of general principles addressing data sharing, contractual best practices for B2B and B2G environments. On the same day, the EC also published a legislative proposal to review the Public Sector Directive. These two simultaneous actions are part of a major package of measures, aiming to facilitate the creation of a common data space in the EU and foster European AI development. 

Begoña focused on the first action, namely the “Guidance on Sharing Private Sector Data in the European Economy”, because (1) it is one of its kind; (2) although these principles do not qualify as soft law, the Commission’s communications set action plans for future legislation; (3) the ultimate goal of these principles is to boost European AI development. 

However, do these principles set a viable legal framework for data sharing, or is this public policy tool merely a naïve expectation? Would these principles set a successful path toward a thriving European AI advancement? To which, Begoña concluded in an earlier article (here) that, “We need a normative approach with strong regulators, in order to protect both parties’ freedom of contract. But at least for now, similar to Buddhism, these principles set the right mantra for a potential AI nirvana.” In the presentation, she discussed the new developments at both B2B (national legislation in Belgium on unfair terms for B2B) and B2G levels (the mandates to the new expert group on B2G) and conclude with some open questions:

How do we balance the public interest in developing a data economy (and foster AI) and the fundamental freedom to conduct a business in the context of data sharing? Is self-regulation the best approach for the data sharing problem in B2B and B2G? 
Should Europe move away from discussing a regulatory approach to data ownership and rather focus on elaborating on the problem of how to foster data sharing and data collaboration to find better solutions (access to data)?
Do we need to consider new instruments within the context of freedom of contract in B2B aiming at protecting the weaker party from unfair exploitation? But are guides, models, and recommendations enough to foster a competitive data sharing economy?

Further, she questioned whether there are any data regarding the use of these principles by undertakings since their publication, as in her own experience as a consultant, most of the companies across different sectors keep coming with questions about how to deal with B2B data sharing and there is no awareness among companies of the existence of these principles. (Begoña told this Kat that in a later session, a member from the EC, Diana Vlad-Calcic who is part of the team responsible for these principles confirmed that they have not disseminated them and that they are using them only as an embryo project.)

Keynote speech 

As Dr. Martin Husovec noted in his introduction, “Prof. Niva Elkin-Koren is a shining star in the academic world, shedding light on lots of important issues, e.g. AI, innovation policy, access to knowledge, governance. She is on all kinds of boards, all kinds of journals, she is one of those people who really think to the future, and always think of the problems ahead.” 

In her Keynote Speech, Prof. Niva Elkin-Koren presented her insights on Contesting Algorithms. Her excellent talk can be watched on the Tilt Livestream platform (hats off to the organizer’s consideration). 

On a lovely sunny Wednesday afternoon, in the Dante building of Tilburg University the afternoon session started… 

Words of Dante in the Dante Building. Photographer: Jingze Li

Afternoon Session 

IP Track 2: AI, copyright and press publishers 

1.

Pavel Koukal (Masarykovy University) presented on the General freedom of action and the new right for press publishers. “In the see of freedom…”, he started, the use of intangible assets in their natural state is based on the principle of the public domain. From the constitutional law perspective, the public domain is based on the general freedom of action. In several Central European countries (Germany, the Czech Republic, Slovakia), the general freedom of action (Handlungsfreiheit) is a human right that can be protected against state authorities, including the legislator. 

He pointed out that the problem we face, however, is the subsidiary nature of general freedom of action. 

In principle, in most of the Central European jurisdictions, the conclusion of the German Constitutional Court re general freedom of action is applicable in cases where no other fundamental right protecting human personality is available. 

Thus, general freedom of action is systematically consumed by other fundamental rights, such as freedom of expression, freedom of scientific research, or freedom of the press and the media. 

Therefore, if we are to consider whether the introduction of a new right for press publishers is in line with the human rights protection, we must address the freedom of expression, which in Europe is guaranteed mainly by Art. 10 of the European Convention on Human Rights and by Art. 11 of the Charter of Fundamental Rights of the European Union. 

Author: Zuzana Vlachova

Even though we know from the Ashby Donald v. France and the Pirate Bay ECtHR cases that intellectual property rights can limit freedom of expression and that states have a wide margin of appreciation in that respect, we must also consider, that it is always essential to assess whether the restriction of freedom of expression (1) pursues legitimate aim and is a (2) necessary measure in a democratic society. 

2.

Prof. Teresa Scassa (University of Ottawa) presented the article she is currently writing together with Adam Basanta (yes, the Montreal-based artist) titled Art at the intersection of AI and copyright law, in which she “took a deep dive” on how the relevant technology actually works. 

A brief introduction of the case written by Prof. Teresa Scassa reads as follows: 

“A law suit filed in Montreal this summer (2018) raises novel copyright arguments regarding AI-generated works. The plaintiffs are artist Amel Chamandy and Galerie NuEdge Fine Arts (which sells and exhibits her art). They are suing artist Adam Basanta for copyright and trade mark infringement. Mr Basanta is a world renowned new media artist who experiments with AI in his work. (See the Globe and Mail story by Chris Hannay on this law suit here).” 

The presentation offers a critical perspective on the intersection between art and copyright law. She used the context of the lawsuit brought against the artist for copyright infringement related to his AI-enabled art project “All We Ever Need is One Another” to tease out some of the complex issues raised by artistic expression in the digital realm, e.g.: Is data scraping of images on publicly accessible web sites to create a data bank of images a breach of copyright in those images (or merely fair dealing)? Is this commercial exploitation? And how should statutory damages be calculated in a text and data mining (TDM) context?

3. 

Ula Furgal (PhD candidate at European University Institute) delivered a presentation on Author MIA. Place of journalists in the post-press publishers’ right world. 

In the battle over investment in news and platforms’ (supposed) parasitism, journalists have been largely left out of the discussion on the press publishers’ right. To address this gap, her contribution explored the possible effects of the press publishers’ related right on journalists’ copyright. 

Ula explained the discussion on press publisher’s right, with observations concerning its nature of highly controversial, high level of polarization, variety of actors, active discourse between actors, from particularities to generalization, etc., the changing notion of journalist and journalists’ concerns. 

With regard to the safeguards which the press publishers right currently includes, ie that (1) the right shall leave intact and shall in no way affect any rights provided for authors in respect of the work incorporated in a press publication; and (2) authors shall receive an appropriate share of the revenues received by press publishers, she opined that they are not enough to address journalists' concerns (and safeguard their interests). Journalists mostly fear about the contractual relationship with the publishers, and the fact that a new right would further strengthen the position of publishers, who will be incentivised to require a transfer of copyright in full by journalists. And this goes back to the nature of press publication as the subject matter of the EU press publishers right, and the fact that independent use of a work incorporated into a press publication is bound to infringe upon the press publishers' right. This, in turn, incentivises publishers to ask for a full transfer of copyright, so that they are not limited in any way. 

IP Track 3: Copyright exceptions and design protection 

1. 

Prof. Estelle Derclaye (Nottingham University) shared her Empirical study of the design protection in Europe. 

The Design Directive and Design Regulation are now over 15 years old. So far, little legal empirical research has been done on the EU design legal framework, especially on how the national courts have interpreted the substantive law. This said, after 15 years, there is enough litigation in the Member States to evaluate the EU legal system empirically – so, Prof. Estelle Derclaye performed an empirical evaluation to fill the gap, by using descriptive and inferential statistics to analyse data from design litigation using several factors. 

She empirically examined the substantive decisions on all types of design rights from the courts of the Member States since the Design Directive and Design Regulation entered into force until August 2017. Specifically, her research tested several hypotheses. First, it used descriptive statistics to examine claimants’ relative use of the type of design right and the relationship between the type of design right as a function of the dimension of the design litigated upon. Secondly, the article uses inferential statistics to analyse the presence of differences in the proportion of designs found valid and infringed as a function of the level of the courts, the type of design right, the dimension of design and the level of specialisation of the judges. In conclusion, the research finds that, overall, the EU design system has been functioning well, and some further improvements are highlighted after careful analysis. 

* The speaker’s presentation is based on her recent publication which can be accessed here.

2. 

Nicolas Jondet (SCRIPT Centre, Edinburgh School of Law) addressed The text and data mining exceptions in the EU: unfinished business?

Text and data mining (TDM) is a process by which computer algorithms analyze large amounts of data to identify new patterns and discover new knowledge. TDM is often presented as a new frontier in research and innovation, opening new avenues of intellectual inquiry and of business opportunity in a wide range of fields such as medical research, artificial intelligence, linguistics, marketing or finance.

Nicolas explained that the EU has just modified its copyright framework to include new copyright exceptions for TDM. The aim is to help the EU better compete in Big data analysis and AI.

Nicolas assessed the TDM exceptions included in the newly adopted Directive for copyright in the digital single market. He looked at the legislative history of the EU exceptions, pointing at the interaction between legislation at national level and EU level. 

Building on the article he published in 2018, he described the TDM exceptions adopted by UK (a EU trailblazer), France (a reluctant second (or third)), Estonia, Germany and Ireland before the adoption of the EU directive and explained how those national experiences have impacted the debate at EU level.

Nicolas reviewed how the EU came about to adopting two mandatory exceptions for TDM, one strong TDM exception in favour of research, especially for research institutions, which cannot be overridden by contract and another TDM exception open to everyone, but which can be overridden by contract.

Although he wished the EU had gone further still by adopting a single broad exception, he generally welcomed the new EU framework for TDM and described how the framework has been improved through the EU legislative process.

Nicolas concluded by identifying potential issues going forward. He asked whether we can expect some differences in implementation in national law (and also whether the UK would keep pushing for a broader exception, especially in a post-Brexit scenario). He raised the practical issues for right holders and content platforms which will need to implement a granular approach to distinguish those users who can benefit from the research TDM exception from those who can only benefit for the more general, overridable, TDM exception. He also highlighted potential issues when stakeholders would attempt to set best practices on both the obligation on beneficiaries of the exception to secure the processed copies and on the right holders to implement appropriate security measures on their databases and networks.

3. 
Matěj Myška (assistant professor at Masaryk University) elaborated on Reconciling user-rights approach in copyright with the current EU copyright framework and CJEU case law.

The user is one of the subjects, whose rights and interest should be balanced against the rights and interest of rights holders. The “fair balance” should be inter alia achieved by exceptions and limitations that are however regarded by the courts as mere defences (or privileges), not actionable rights.

The current doctrine offers a different – user-rights – approach, i.e. the user should have certain rights in regard to the protected subject matter. Matěj explored whether this approach could be actually reconciled with the current EU copyright framework a CJEU case law. To that end, he adoptd a neat matrix of “3x3 Rs of the user-rights” to structure his speech, namely:

I. Rhetoric: role, rights, review - in this part he described the rhetoric of user rights, i.e. how the doctrine perceives the changing role of the user in the system of copyright law and how this should be reflected in the area of permitted uses with the protected subject-matter - namely by creating actionable user rights.

II. Reality: regulation, rulings, rights management - this part reflects the actual state in the regulative instruments and case law concluding that they actually do not employ the rhetoric of user rights, nor do they regulate it. Moreover, the exceptions and limitations might be also phased out by contract and/or digital rights management.

III. Reconciliation: rejection, reinterpretation, revision - in this part Matěj presented approaches how to reconcile the rhetoric of user rights with reality. Namely to a) just ignore it; b) try to re-establish the "fair balance" by reinterpreting the exceptions and limitations (incl. the more flexible interpretation of the three-step test); c) positively codify user rights.

Unless stated otherwise, the photos of the speakers were taken by Tian.