ICTlogy

Communications on E-government
Chairs: Agustí Cerrillo

Innovation management in public organizations: open data in the threshold of open government.
Adrián Vicente Paños, Diputació de València; Servicio de Transparencia y Gobierno Abierto.

In general, innovation is badly managed in European public administrations: lack of reusage, management deficits, etc.

e-Government, in many cases, has been used as a flagship for the “modernization” of public bodies. And, in particular, open data and open data portals are increasingly becoming the first stop for pubic bodies to face modernization and innovation. 84% of European countries have open data portals, although less than half of them have a certain degree of maturity.

Reuse of data vary significantly depending on the type of data and sector. Thus, finance, contracts, geospatial data and some others are by far much more used than other datasets.

There is a need to improve communication so that the end-user (e.g. the citizen) can reuse data, be more easily found, etc. Benchmarking good practices across different bodies would also have a potentially high impact.

The asymmetric regulation of third parties’ rights in the procedures of access and reuse of public information.
Leonor Rams Ramos, Profesora Contratada – Doctora de Derecho Administrativo (acreditada a Titular de Universidad) en la Universidad Rey Juan Carlos.

The new Spanish Law on Transparency (Ley 19/2013) was much needed, but has been criticised because of its wide limitations, very open cases for non-admittance, and lack of instruments for assessing its efficacy — among others.

What happens with third parties that, despite not being public bodies, they have relationships with public administrations and thus these have data that can be requested by the citizen. Can these third parties, these private bodies oppose to their data being published or given away by public administrations under the Transparency Law?

The Art.19.3 LTBG makes it compulsory to notify third parties if they could be affected by a request of data, and they then become an interested party of the procedure. It is not a right to veto: it just triggers some alerts so that the data from third parties is accurately dealt with. If the data required falls within the category of personal data, the veto is automatic. If not, it has to be analyzed case by case.

The problem is that the citizen that makes the request has no voice in the whole procedure, or can argue against the decision to veto the delivery of data. Even worse, the person requesting the data does not know what the third party can do or will do to avoid the disclosure of data. And hence cannot react or anticipate any movement from the third party, which rends them defenceless.

The collaboration of the private sector in European digital public services of digital identification.
Ignacio Alamillo Domingo, Abogado y auditor. Colaborador docente de la UOC.

Digital identity has ceased to be a matter of security, circumscribed in a very tiny area, to something that is ubiquitous, spreading all over a myriad of platforms and institutions.

On the other hand, digital identity is not only a matter of cost (cost to create an identity) but also a consumer good or even a capital active, and including a social good, liked to social networking or reputation, and leading to the appearance of public providers of digital identities (e-ID).

eIDAS aims at creating a public system of digital identification within the European Union. It focuses in security and interoperability, so that national systems can interact one with each other.

What is the role of the private sector in this system? It is possible that a means of digital identification can be private. This means that the public sector admits private means of identification and uses them or interacts with them. And by doing it at a national level it is enabled that it can be done at the European level. The problem here is how to assess private eIDs and their features, or how to avoid the (explicit or tacit) creation of monopolies or monopolies of e-identification private systems.

Last, but not least, no only public bodies can use eIDs, but also private parties can benefit from eIDAS and use an kind of eID issued by public or private bodies in any member state of the EU.

Discussion

Ignacio Alamillo: it would be interesting that the public sector accepted different degrees of identification, with different levels of security, compliance, etc., in collaboration with public-private-partnerships, etc.

Keynote speech. Chairs: Maria Julià

Prof. Raquel Xalabarder. Professor of Intellectual Property, Law and Political Science Department, Universitat Oberta de Catalunya (UOC).
Copyright law for a digital single market: how far are we from achieving it?

Copyright law grants an exclusive right on works contained in products (tangible goods) and services which must freely circulate within the EC/EU internal market.

So far, we have a bunch of national copyright laws, with different scopes, and with a marked principle of territoriality. Can we harmonize these issues? There has to be no discrimination within the EU: what you grant to a national author, you grant it to a EU author. BUT. We had a single digital market for goods, but not for services. Once a work was embedded on a product, it fell within EU common law; but it happens otherwise with services. And here is the big deal we are facing now.

Rome EC Treaty:

• Subsidiarity principle, only applies when objectives are better achieved by the EC than by member states individually.
• Harmonization through directives, that need national implementation.
• Lisbon EU Treaty Art. 118 TFEU: mandate for uniform IP rights in all EU. Need for a regulation on EU copyright?

We now have a bunch of EU directives that deal with computer software, rental and lending rights, satellite and cable communications, terms of protection, databases, copyright, resale right, enforcement, orphan works, collective management (of rights) organizations and music online, etc.

There’s a big deal trying to harmonize concepts like what is a work, what is an author, what are related rights, etc. Different directives refer to works and authors in very different ways.

Same happens with moral rights, exploitation rights, remuneration rights… Remuneration rights are especially difficult to address as they vary very much across countries, in what they cover, in the amount or kind of remuneration, its management, etc.

About communication to the public, there is no clear consensus on what the “public” is, communication, display or performance, etc.). Here the concept of linking to (protected) content becomes crucial, of course including the role of the agent that created the link.

The harmonisation of limitations to intellectual property rights are also scattered across different directives and regulations in general.

Licensing, enforcement… again matters of disagreement and lack of harmonization.

Discussion

Wouter Tebbens: copyleft software heavily relies on copyright, and the design and the product are very much the same. But what happens with copyleft hardware, where the design and the product are much different? Xalabarder: it is uncertain. It depends on whether you just protect the design, and then the product is not affected, or if you take into account the design embedded in the product. It is difficult to tell.

Some conclusions?

• Fragmented harmonization of some issues: work, author, rights, limitations…
• Court of Justice of the European Union (CJEU) role is paramount.
• Territorial licensing allowed (for services) as “original sin”.
• Member states “reception” of EU copyright law and caselaw?
• Subsidiarity principle.
• Time for a copyright unitary title?

Communications on Digital Single Market and e-Commerce
Chairs: Blanca Torrubia

The role of geoblocking in the internet legal landscape.
Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law at William S. Boyd School of Law, University of Nevada, Las Vegas.

Geoblocking: blocking depending on place and depending on content.

Geoblocking breaks the ubiquity of the Internet and users’ expectations of a territorially-unlimited Internet. On the other hand, geoblocking is a way to try to accommodate Internet content to the territorial restraint of national jurisdiction.

Opposition to geoblocking:

• Contrary to the original architecture of the internet.
• It’s imperfect, leaving lots of room for spillovers.
• Has uncertain legality.
• Is associated with not insignifiat implementation costs.
• May have an impact on freee speech.

The EU proposes a campaign against geoblocking, though proposing a new regulation to address geoblocking and other forms of discrimination based on customers’ nationality.

Some positive ends of geoblocking:

• Contributes to the diversity of content on the Internet.
• Geoblocking allows for content to be made available where it is legal.
• A territorial partitioning of the Internet is inevitable as long as countries have strong national public policies that shape at least some of their laws.
• Online gambling and other sensitive areas of regulation will provoke countries’ strong policy stances, for which geoblocking on the Internet offers a workable modus operandi.

Hardwiring Privacy in the European Digital Space.
Lee Bygrave, Professor, Norwegian Research Center for Computers and Law.

Information systems architecture has the ability to shape behaviour beyond what legislation allows.

There are explicit attempts to change system architectures to force changes in law or to put in practice de facto “regulations”, especially in the field of data protection and privacy.

Some of these hardwiring attempts to change regulation may have an impact in homeland security, on privacy guarantees, etc.

The exclusive right of the author to control publicity and sale offers of their work. Impact in the building of a single digital space.
Antoni Rubí Puig, Profesor de Derecho Civil de la Universitat Pompeu Fabra.

Can we buy in third countries’ websites goods that are subject to intellectual property rights that apply in our country but not in the third country? Can we do that without incurring in an IP illegality? Probably not. The right to distribute works is exclusive of the author’s.

There are several points in the whole process of publishing, offering, selling and delivering goods where the author has their say according to their intellectual property rights.

The proposals of the European Commission about contract rules in the supply of digital content and online sales: conformity, remedies and exercise of remedies
Rosa Milà Rafel, Investigadora Juan de la Cierva-Incorporación de la Universidad de Castilla-La Mancha Centro de Estudios de Consumo.

Proposal of EU directive of online sales. Goal: to eliminate one of the main barriers against international e-commerce in Europe.

Problem: if it is approved, it will indeed increase the fragmentation of actual regulation.

Proposal of EU directive of supply of digital content.

It includes a wide range of digital content, such as cloud computing services and social networking services.

Unlike the former one, this directive is likely to reduce fragmentation of existing regulation.

Keynote speech. Chairs: Miquel Peguera.

Prof. Hugh Beale. QC FBA, Professor of Law, University of Warwick; Visiting Professor and Senior Research Fellow at Harris Manchester College, Oxford.
The future of European Contract Law in the light of the European Commission’s proposals for Directives on digital content and on-line sales

The main goal of the European directive was to increase consumer confidence, that consumers were given a minimum of rights wherever they did their purchases.

But it was also about reducing traders’ costs, as differences in contract law creates costs. After 2003, the European Commission has been working to remove barriers to trade, and not only in B2C contracts, but also in B2B contracts.

In general, Rome I art 6(2) says that consumers are entitled to mandatory rules of Law of State of habitual residence. Which is a major problem for sellers who have to know the applicable law for every consumer. A full harmonization seems highly desirable. But this may cause withdrawal of rights to consumers in some given states, which most will just not accept.

The Digital Content Directive applies to the trade of digital content: stream, download, etc. digital content. But is this like buying something that you then own? Or is it more like hiring someone’s services? The directive applies to both, as a one time delivery or as something that stands for a period of time. And it includes exchanges of digital goods or services for a price or in exchange of personal data. Last, rights apply to whether you are buying a physical support (e.g. DVD) or not (e.g. downloads).

DCD Art 18 implies that any individual can initiate an action against terms that they may find abusive. And, accordingly, the EC and/or the Member State has to enforce the regarding of the law. This can have a potential huge impact on the compliance with the directive.

What will the impact of the directive be? Probably small, because:

• It only includes a very narrow set of goods and services.
• It leaves out everything related to B2B, and SMEs would benefit much from it.

Discussion

Blanca Torrubia: how are differences between property rights dealt with in the directive? Beale: it seems that the big differences in how to understand property rights are between the EU and the US, more than within member states.