ICTlogy

Moderator: Miquel Peguera. Lecturer, School of Law and Political Science (UOC).

The Exceptions’ Sun Also Rises: When Fair Use Is the Solution.
Pedro Letai. Professor of IE Law School

There is a need to restore the legitimacy of copyright. But, of course, re-balancing its role before other rights. And we have to go back to the origins of copyright: incentivating creation.

These incentives have limits and exceptions: private copying, incidental use, academic use, quotation, parody, etc. But these limits should not be harming the legitimate activities of rights holders.

The problem is that users (user generated content), search engines, etc. are doing cutting edge uses that are not appropriately contemplated by the Law.

So, the norm should be a little bit more open so not to harm neither the creation of authors nor the creation by non-professionals, the diffusion of the creation of the former or just emerging industries based in digital content.

3d Printing, the Internet and Patent Law – A History Repeating?
Marc Mimler. Queen Mary Intellectual Property Research Institute, Centre for Commercial Law Studies (CCLS), Queen Mary University of London

3D printing was initially thought for rapid prototyping. 3D would normally begin with a designer drawing the blueprints of the object to be printed, but scanners have evolved enough to be able to scan 3D objects, map them and then be able to replicate them on 3D printers.

Some advantages: reversing offshoring low-cost labour economic activities, reducing the environmental impact by reducing transportation of goods, empowerment for the end user that can now print their own designs, etc.

On the other side, 3D printing can imply direct patent infringement (creating replicas and counterfeit). But also indirect patent infringement, as virtually anyone can create those replicas.

There are some differences though: how the invention is put into effect, how the patented product is produced (as sometimes the process is part of the patent, or sometimes it is just the process what is the object of the patent), etc.

3D printing means that is not only copyright that has to be rethought in a new digital realm, but also patent law.

Intellectual Privacy: A Fortress for the Individual User?
Irina Baraliuc.Research Group on Law, Science, Technology & Society (LSTS), Vrije Universiteit Brussel (VUB), doctoral researcher

There is a public debate on fundamental rights in the digital context, which has ensued a judicial activity on the balancing of fundamental rights.

Julie E. Cohen defines intellectual privacy as the breathing space of intellectual activity: informational privacy, spacial privacy. Neil M. Richards speaks of ability do develop ideas without any interference: freedom of thought and believe, spatial privacy, freedom of intellectual exploration, confidentiality.

These concepts are very related with privacy, data protection, freedom of thought, freedom of expression… and copyright.

Concerning privacy and data protection, there are some points to be made: how the lack of copyright in the private space can affect creationor intellectual privacy; how DRM can affect it too, etc.

Surveillance can affect freedom of thought and thus creation, intellectual activity and intellectual privacy.

We have the build a copyright-concerned private space online, taking into account intellectual “privacy” or “freedom”, “self-determination” or “autonomy”.

Discussion

Pedro Letai: more that having a comprehensive approach, what we should be thinking about is that there is a change of paradigm (from “everything closed” to “everything open” by default). And maybe regulations should be made according to the later paradigm, and thinking more on diffusion of one’s work, rather than (only) providing incentives to creation (of new works).

Fundació puntCAT — the organization behind the .cat “country” code top-level domain (ccTLD) — is going through a process of strategic reflection on what should its mission be in the following years. As a part of its Advisory Council, I have been invited to provide my insights. Here comes what could be called my “position paper” on the matter. Some of the ideas have been enriched with the dialogue with other members of the Advisory Council, which actually shared most of my points of view.

The need for a transversal, independent institution to foster the Information Society

There are two main issues to be raised about the nature of an institution that has in their mission fostering the Information Society.

The first one is that it has to have a transversal, multidisciplinary approach to the topic. This is rarely found in governments, where such an institution is placed in the organizational chart of a another vertical institution, that is, a given ministry or department. In practice, this means that if the institution is e.g. the Ministry of Industry, the approach when fostering the Information Society will definitely be biased towards infrastructures and the ICT/telecommunications industry — which is the most common example indeed. A solution to this problem is placing our institution that fosters the Information Society up in the department/ministry/cabinet/secretariat of the President or similar. This will work only under two premises: (1) there is no coalition of different parties within the government, so that the government is not split in practice in sub-governments among parties; (2) there are no different factions within the party in the government that fight among them for power — this will rarely happen if ever. Another solution is placing our institution outside of the Government and in hands of the civil society.

The second aspect is that this institution has to be independent. Some of the reasons have already been stated above: only an independent institution can provide advice to policy-makers in matters of Health, Education or Democratic Quality without the risks of being interpreted as a party issue (and not a technical one). But independent does not only means in political terms, but economic ones. A major strength that some institutions of this kind have — like Fundació puntCAT or ICANN itself — is that they have revenues that sustain their activity besides the political colour in the government or the interests of the lobbies.

Functions of an institution to foster the Information Society

There are two sides of the same coin when talking about the functions that can be carried on by institutions to foster the Information Society.

On the one hand, these institutions can provide services in order to assure economic (and political) independence and sustainability. Of course these services will be related with the institution’s mission (e.g. managing a ccTLD). This is the “revenue” side of the institution, especially if it is independent as we defined it before. On the other hand — and this is the point that I would like to stress —, these institutions have an “expenditure” side which focuses on policy-making, on lobbying. Both sides are complementary and essential.

Concerning the part of policy-making and lobbying, I think it is worth mentioning that it is the demand side what is of more concern, especially where a good amount of infrastructures have already been deployed, thus shifting from push to pull strategies.

In this demand-side, pull-strategy approach, there are three issues that are worth being mentioned, and in this specific order:

1. Measuring and analysing the state of development of the Information Society. That is, knowing what is happening and, even more important, why. So, it is not only about the raw measurement and putting data in rows in a table, but putting it in context with other socio-economic indicators, infer the causes of this state of development, its consequences, comparing it with other social or economic realities, etc. Most of the times, data on ICTs come in a much aggregated and sector-centred manner: there is a need to disaggregate, contextualize and characterize these data so that they become knowledge.
2. Provide policy advice on what should be done, in what fields, with what priorities, and adjusting to the available resources. And not only providing advice, but also pointing at the ways to monitor the evolution and measure the impact of applying such policies, what results could be expected and, again, why. Providing policy advice can be made in a lot of ways. The usual one is reports or white papers. But consultancy (which can be pro-bono, of course) and lobbying should also be included in the agenda. And, of course, advice can be provided at different levels: at the state/government level, or at the organization (e.g. SMEs) or individual levels.
3. Directly setting up and carrying on programmes for the development of the Information Society. In other words, designing programmes and executing projects in the field of e-Health, ICT and education, electronic and open government, etc. These programmes and projects, of course, should be very much in line of the two previous points: heavily relying on the evidence raised in the measuring and analysis part, and putting in practice what the policy-advice stage suggested. Deploying protocols and procedures, measuring tools and indicators for monitoring would be the nicest way to close the (virtuous) circle of intervention.

It goes without saying that, in a Network Society, it is not expected that an institution will (a) directly perform all of the aforementioned tasks or functions and (b) do it on its own. I believe there is an opportunity for a new institutional design, more based on enabling that on leading, more based on networking and partnering rather than on competing. I would expect of an institution designed to foster the Information Society to be the visible core of a network of professionals, scholars and policy-makers that work towards the same goal. And the main role of this institution would just be generating the sufficient resources to create, maintain and fuel this network.

Round table on Citizen participation and presence of the Parliament in the Net. Chairs the Vicepresidente 1º del Senado D. Juan José Lucas.

D. José Antonio Manchado Lozano. Senador del Grupo Parlamentario Socialista.

Citizens have to participate, to engage in the management of public things.

Institutions can ignore them, listen to them or even sit and talk with them. Given the fact that politics is hugely discredited, it is maybe time to sit and speak with people in order to regain legitimacy and trust in institutions.

There is a big difference between transparency, which is a responsibility of institutions, and participation, which comes from an engaged citizen. Transparency is the duty of institutions, participation is a right of the citizen. And participation has to be fostered. Participation is not only be informed, or accountability, or tell one’s opinion, but being also able to have an influence in decision-making. So, the Senate — and Parliaments in general — should enable the participation of citizens in their daily work, so that nothing that happens within the Parliament’s walls has not been co-participated by the citizens.

It is important noting that the world wide web does not begin and end in the Senate’s web page: this is only the institutional headquarters of the Senate, but people are everywhere in the Net, especially social networking sites.

D. Narvay Quintero Castañeda. Senador del Grupo Parlamentario Mixto.

The website of the Senate could turn into another chamber, to be added to the existing parliamentary groups, commissions, etc. Websites or social networking sites can be used to bridge the chasm between the citizenry and politicians as they are open gates for information sharing and conversation.

D. Ismael Peña-López. Profesor de Derecho y Ciencias Políticas de la Universitat Oberta de Catalunya.

D. David Álvarez. Analista Político en Redes Sociales.

Who are the actors of online politics?

• Citizens as individuals: they are not waiting to participate, they are already participating in political initiatives. E.g. Qué hacen los diputados, Proyecto Avizor, Graba tu pleno, Tu Derecho a Saber, Stop Desahucios, Democracia 4.0.
• Politicians as individuals.
• Political organizations.
• Institutions.
• Media.

Citizen activism in the Net:

• Intensive use of social networking sites.
• Collective intelligence: collaboration, participation, co-creation.
• Financing practices: crowdfunding.
• Data journalism-based practices.
• Elimination of intermediaries.
• No one has the exclusivity of knowledge.
• Shared political experiences.

Political institutions are not usually very active in social networking sites. Indeed, there are more people not directly related with political institutions talking about them on social networking sites than people directly related with these institutions.

Survey on “Social intelligence” by Territorio Creativo:

• Does the institution measure the impact of its communication on the Net?
• Does the institution have spaces for interaction and collaboration?
• Does the institution have a protocol for interacting with the citizen in social networking sites?
• Does the institution listens to what is being said in social networking sites?
• Does the institution measure its online reputation?
• Does the institution use the Internet for pattern recognition, to identify behaviour trends?
• Does the institution share information within the institution?
• Does the institution foster open innovation?

Keynotes on Accessibility and Reuse of public sector information.

Accessibility.
Fundación Sidar. Loic Martínez Normand. Presidente de la fundación

Accessibility: guaranteeing that the web is available for everyone independently of their capabilities. This definition has been broadened when more people are disabled in different ways (e.g. temporarily because of broken arm) and because of the proliferation of different displays with which one can access the world wide web. Functional diversity: sensory (sight, hearing, touch), motor (mobility, skills), cognitive (comprehension, language, learning).

Principles in accessible design: a website has to be perceptible, comprehensible, operable, robust. The new website scores average, but is much better than the previous one.

Reuse of public sector information.
Fundación Civio. Mar Cabra. Directora de la fundación.

Some experiences in transparency and reuse of public sector information: tuderechoasaber.es, dondevanmisimpuestos.es, espanaenllamas.es.

There is a lot of information that already exists, that has been paid by the taxpayers, and that is not used because it has not been made publicly available. There even is the possibility to make business/profit by reusing public sector information.

Make available:

• Legally, by making it freely (no copyright) available by law.
• Technically, so that computers can “read” the information (e.g. no scanned images, but text documents).
• Humanly, presenting information in visual ways that humans can better understand than long lists of rows in tables.

Availability is also about being able to provide feedback, and providing feedback in a transparent way (e.g. no through forms).

Round table on transparency and communication. Chairs the Vicepresidenta 2ª del Senado Dª. Yolanda Vicente González.

Dª Mónica Almiñana Riqué. Senadora del Grupo Parlamentario Entesa pel Progrés de Catalunya.

How can we analyse the state of transparency in Spanish olitics?

The first law on the right to information is the US Freedom Act (1966)… when Spain did not have even a Democracy. That is, access to information still is a young matter in Spain. In the meanwhile, there’s been a technological revolution that has radically transformed itself the definition of access to information.

In Spain, the third problem is political parties and the political class, only below the economic crisis and unemployment. Notwithstanding, people still believe that democracy is the best of systems. People feel that they are not informed about what is happening in politics and people are occupying streets and plazas to demand for a better democracy.

There is the threat that this political disaffection becomes structural, yielding to unrest, radicalization of the political discourse, etc.

Dª Carmen Azuara Navarro. Senadora del Grupo Parlamentario Popular.

In the new website of the Senate the focus has been put on transparency, on letting know the citizen what is being dealt with in the Senate.

Besides transparency, the digitization of most information will mean more efficiency in terms of costs of communications.

D. Rafael Rubio. Profesor de Derecho Constitucional de la Universidad Complutense.

The Senate has a new website: what now? what comes next?

It is no use that the website aims at transparency if the attitudes of the Senate are not towards transparency. How will citizens use the information at their reach?

Some threats:

• Representatives are digitally illiterate.
• Citizens do not know about the processes in the Parliament.
• Citizens are also digitally illiterate.
• Too much effort to use.
• Lack of dialogue.
• Too much information and too complex.
• Divides: digital, political, cultural, social.
• Lack of answers or ability to provide answers.
• Self-criticism: knowing what works and what does not.

So, what for a new website? To reinforce the (traditional) characteristics of the Senate: representativeness, transparency, accessibility, responsibility, efficacy, openness, confidence, better communication, rationalizing the legislative process, new ways of participation.

The Senate has to have its own voice, without intermediation, enabling communication.

We have to be aware of (1) whom are we talking to and (2) what are their languages so we can adapt our message to them.

And there is an urgent need for inter-institutional collaboration.

D. Luis Izquierdo. Presidente de la Asociación de Periodistas Parlamentarios.

Spain does not have a long tradition in matters of culture of transparency.

Transparency International España has several indices that measure the quality of transparency in Spanish municipalities, provinces and autonomous communities.

Transparency is not only about publishing information, but about getting it to the citizen.

And transparency is not only about the public sector, but also about the private sector, especially big corporations that concentrate big amounts of power.

Media have alto to be transparent. And citizens should be demanding it. There is no accountability in media.

Citizen protests have demanded more transparency to governments and media and these protests have spurred many initiatives related to transparency.

Round table: From movements to constitutions. How to think in a networked and open source constitutional process
Chairs: Tomás Herreros

Is it true that citizens (Spaniards, Greeks, etc.) are lab rats upon which we can play socio-economic experiments?

What has been the role of the European Union before the economic and financial crisis?

There is only an exit to the crisis with a commons-based economy, a new way to understand politics and participation, etc.

These movements are based on self-communication and higher rates of participation. And the difference between activists and non-activists are blurring, as participation comes naturally with being informed, providing and opinion and getting in touch with one’s peers.

With this changing times, what is the role of traditional politics?

Rubén Martínez Dalmau (Professor in Constitutional LAw, Universidad de Valencia)

There are concepts like “separation of powers” or “administration of sovereignty” that should be addressed carefully. So, before asking how to do things, we should above all ask ourselves why some things should — or should not — be done.

Why a constituent process?

Because, historically, constitutive democracy is an emancipatory process: it has provided more rights to the citizens than never before. Modern constitutions introduce the concept of the sovereignty of the people, which becomes very important in order to control power and its management.

Although modern constitutions have improved empowerment and have evolved (positively) along the years, there still are some glitches that need being fixed: many times, constitutions are nominal (state principles) but are not normative (and thus require a deployment of further regulation). A good example of that is health, housing, etc. though they are mentioned as rights in many constitutions, they do not count as such if they are not reflected in positive laws (as it often happens). Consequence? Parts of the constitution are not applied.

Another glitch is the difference between constituent power and constituted power. Constitutions are the manifestation of regenerative powers. But if representatives do not change their behaviours according to (new) constitutions, the constituent and regenerative power becomes but reproductive power. The glitch of the glitch is when representatives (the constituted power) are the ones that change or write the constitutions (the constituent power). This is a total contradiction in the very core of the concept of a constitution.

Thus, there is a need to break (1) the nominal parts of the constitutions and (2) the hope or mirage that constitutions can be changed by the people but actually only constituted powers can do it. We need not fight for a reform of the constitution, but for a rupture.

The qualitative leap between the 15M and the 25S is putting the stakes on the constituent power as the basis of a rupture against the constituted power — very much like many Latin American constitutions that were reformed or rewritten in the nineties.

The constituent process is not the only exit, but it might be the best one. On the other hand, the constituent power is a power that many times needs fighting the constituted power; thus, many times the legitimacy of the constituent process begins with a clash of powers. There is a need for a transitional process that will not be “the” transition, but a real transition time that links the preceding constitution with the following one, where consensus have to be reached, and based on a deep democratic maturity.

Emmanuel Rodríguez (Observatorio Metropolitano de Madrid)

There are many political institutions that instead of disclosing democracy, they actually close it: only some specific actors are acknowledged as such and the rest of actors is set aside of the democratic process. Besides representative institutions closing democracy, mainstream media have lately proven unable to channel the public opinion. Same with labour union, that have shifted towards representing only a specific part of the workers. Last, but not least, the economic power, whose jurisdiction has escaped the area of influence of all other powers.

[here comes a thorough explanation of the growing power of international finance, getting much bigger than any country’s GDP] The defence of economic and finance powers has become a political priority, with the Maastricht Treaty as the most significant “constituent” example.

Summing up, while the economy is fully integrated at the European level, politics (or civil rights) are not so. Until a total parallelism is achieved, full democracy within Europe will be an illusion.