Communications on privacy and electronic commerce. Chairs: Mª Rosa Llácer Matacás. Professor of Civil Law. University of Barcelona.
Handling cookies within the european union: making the cookies crumble? Eleni Kosta, Senior Research Fellow, Interdisciplinary Centre for Law and ICT (ICRI)-KU Leuven (Belgium).
Old cookies provision: only in electronic communications, for storing information or gaining access to some information, resident in the user’s computer, and whose usage the user had the right to object. Now, the new requirements require explicit consent after having been provided with clear and comprehensive information. And it includes not only electronic communications, but also other digital devices like CDs, DVDs, USB keys, etc. that sometimes install software or put/retrieve information from the user’s device.
There is also a huge difference between first-party cookies and third-party cookies, the latter the more dangerous/risky in terms of privacy.
After this change, both local regulation and browser technologies may require some update to accomplish the new requirements of the law.
Nuevos retos de la regulación jurídica y deontológica de la publicidad en las redes sociales. Esther Martínez Pastor, Prof. Contratado Doctor. Universidad Rey Juan Carlos; Mercedes Muñoz Saldaña, Prof. Contratado Doctor. Universidad de Navarra.
What is the balance between the customer/user and the business in social networking sites, when the latter would like to have as much data as possible from the user, while the user increasingly aims towards more privacy. Added to this, the basic user does not know much about technology and does not know what a cookie is, less how to enable/disable them. That the EU law plans that websites ask the users for consent is a contradiction if we take into account how knowledgeable in technology is the basic user.
Maybe we should educate the user, but not on technical terms but plain English.
On the other hand, from the advertising businesses point of view, it is becoming increasingly difficult to know what is the regulatory framework that applies to one’s business at a given time.
El reto de la protección de datos de las personas mayores en la sociedad del ocio digital. Isidro Gómez-Juárez Sidera, Doctorando, Facultad de Administración y Dirección de Empresas, Universitat Politècnica de València; María de Miguel Molina, Profesora Titular, Departamento de Organización de Empresas, Universitat Politècnica de València.
We are increasingly speaking about two collectives within the broader concept of elderly people: the third age (65-80 y.o.) and the fouth age (+80 y.o.). Minors are a major concern of authorities and are widely protected, but it does not happen the same with our elders. And it is just a fact that elders are usually non-tech savvy / digitally illiterate and suffer from a lot of threats to their privacy, scam, etc.
A research was carried on to perform a SWOT analysis on elders and online entertainment. Besides digital literacy, elderly people require a lot of information. On another train of thought, we should distinguish between legal practices and ethical practices. Sometimes law just won’t catch up with all walks of practices, partly because it enters the field of ethical practices and being informed about such practices.
After information, autonomy of will and control (over one’s data) are a must.
PNR and SWIFT Agreements. External Relations of the EU on Data Protection Matters. Cristina Blasi Casagran, Researcher, Law Department, European University Institute, Florence (Italy).
The EU and the US have signed several (4 so far) agreements to share personal name records (PNR) since 9/11 attacks. The agreements were aimed at fighting international terrorism and had to accomplish with the current law on data protection. After the Treaty of Lisbon (2007), the European Parliament gained competence to veto some specific agreements, and that is why the newest PNR agreement with the US (2012) was vetoed.
Current treaties (US, Australia, Canada) ask for data retention in source countries and data is transferred under a push system: it is not the country that wants the data that asks for it, but the country that gathers the data the one that transfers it to third countries.
Concerning the sharing of data from financial transactions or SWIFT agreements there have been 3 of them: the TFTP in 2001 and two SWIFT agreements in 2009 and 2020.
After many agreements for sharing data, do we have a US-EU framework agreement on data protection? No, we don’t. We have a clear unbalance between security and privacy, and a clear bias towards or influence of the US legal system.
Online entertainment and customer protection Pedro A. de Miguel Asensio. Catedrático de Derecho internacional privado de la Universidad Complutense de Madrid. Autor de la obra Derecho Privado de Internet
Who is a customer in online entertainment?
Mechanisms of customer protection:
Obligation to inform / right to information.
Right to desist.
Protection against abusive clauses in contracting within general conditions.
Actions on unfair competence, illicit advertising, trademarks.
Personal data protection.
Protection of (other) personal rights.
There is huge disparity between the US regulator framework and the EU’s. Indeed, this may be a reason why most international operators are based in the US. Establishment of standards, policies and reform of the actual legal framework might bring big changes in Europe: would a change in EU Law enable that the “next Twitter” could be born in Europe? In the US, normally businesses have less barriers but customers are much more protected, while in the EU it happens just the contrary: restrictions are put upon businesses but once they do not respect the customer, the latter has less legal coverage.
Operators normally act in three steps: they set their business models and fix general terms of use; the adapt some terms to the local law; and they yield to local courts in case of legal disputes. Normally, EU law makes it possible that customers can complain before their local courts: even if customers “technically” can be buying their services abroad, the law tries to bring the dispute as close as possible to the customer. And this includes, for instance, that the information on the website is fully accessible (language, terms, etc.) for the customer that the service is targeting.
Service providers increasingly operate at a global scale and under different standards (e.g. EU vs. US). There are risks in not accurately protecting the customer, but, on the other hand, overprotection can incur in damaging the industry. It is interesting to consider, though, that if we e.g. can adapt, customize or even personalize (online) advertising, why not the terms of use of a specific digital service or good.
Panel on New business models for contents distribution on line Chairs: Moderator: Judith Clarés. Lecturer. Information and Communication Department. Universitat Oberta de Catalunya.
Sydney Borjas Piloto, Gerente de Artes Escénicas. Grupo SGAE.
The possibility to compress audio and video have enabled new business models based on digital convergence. In parallel, the regulatory framework has also evolved and made possible that new investors and initiatives can flourish as there is a higher degree of legal security.
It is now possible to opt for a multi-channel and one-to-one model.
New actors have appeared: hardware manufacturers that also provide contents.
Last, the advancements in connectivity/broadband have also enabled that distribution of content online can now to an upper level.
Laws as Sinde-Wert in Spain or Hadopi in France are trying to protect the industry while not injuring citizen rights. And the level of observance of these laws does have an impact at the international level and the prices that have to be paid for accessing content from major distributors (e.g. it is cheaper to buy content from Germany than from Spain).
Another barrier for the advancement of new models is that not all theatres have the latest technology. If theatres were all digitized, multi-platform distribution would be easier as it would be much cheaper than it is now, as it requires different (physical) products for different platforms.
Same with law and the different regulatory frameworks.
Jaume Ripoll, Director Editorial y socio fundador de filmin
For the last 5 years, the music industry has created cool portals that are fancy and trendy, but that do not provide what the user is looking for when they go to the Internet to watch films. The industry has tried to teach the user while the user already knows what they want. We need to know who the users are, where they are, what do they want, when and how.
The industry has to look ahead: yes people buy DVDs and yes people still rent movies on videoclubs, but the future is the Internet, which is what will surely last.
There is too much film production (circa 2,000 films a year in Europe). Too many supply for theatres and DVDs… but not too much for the Internet. And in the Internet, if offered in appropriate ways, there is enough demand for this much supply. And the Internet is not only desktops: it’s phones, it’s tablets, it’s laptops, etc.
The Internet also makes possible to avoid time lapses, to wait for the film to be issued in DVD or for TV. You read the critic on the paper, you see the movie on the Net. Indeed, there still are many places where many films just won’t make it to theatres: why take from that user the experience of watching a specific film?
The one who chooses is the user, not the distributor.
One of the problem, though, of choosing… is having to choose itself. How can the user tell from 2,800 films (the actual library at Filmin) which one to choose? Filmin offered, instead of categories of films, moods for films (“want to remember my couple”, “forgetting about my kids”, etc.)
To do that, it is important to create strong networks of distribution with other “filmins” around Europe.
Content is now consumed in several platforms, anywhere. It is thus essential to have agreements with (a) content providers and with (b) device manufacturers. Thus, the distributor can provide access to any kind of content from any kind of device.
We have to be aware of the different types of users: some users are used to the TV, so it is important to bring digital content to the TV, i.e. the smart TV. On the other hand, there are digital natives that use technology as a natural thing and have an upper level user experience. New initiatives have also to be aware of these digital natives.
There are several consumption models: video on demand (VOD), subscription, electronic sell-through (EST) or purchase, etc.
The user wishes everything: anything, anytime, anywhere.
Key factors to consolidate video on demand: prices, regulatory framework, windows. Prices should be lower, but the fear of cannibalization of other supports does not allow (yet) for cheaper prices. Until a critical mass is reached that pays back the possible cannibalization of other formats, prices will keep being relatively high. Windows of release definitely depend on major distributors and theatres reaching an agreement, but there is a trend towards openness and flexibility.
Communications on fundamental rights Chairs: Miquel Peguera. Senior Lecturer, School of Law and Political Science (UOC).
Constitution 2.0 and Rule of Law: on the Iceland Constitution. Pere Simón Castellano, Derecho Constitucional de la Universitat de Girona.
Even if everyone has to obey the law, it is also true that theory and practice of Law are somewhat different things. ICTs may have also helped in this dichotomy from theory to practice, affecting the rule of Law.
Transparency and participation have, on the other hand, also changed the landscape of law enforcement and its efficiency.
The case of the Iceland Constitution is a very good example of this change of paradigm. The whole process, all the debates and conversations were either streamed or published online.
But can the Iceland case be extrapolated to other places with more population? Does it scale? Is the citizenry ready for more doses of democracy? Will people be eager or able to participate more intensely?
Redefining the isegory: open data citizens. Helena Nadal Sánchez, Departamento de Derecho Público de la Universidad de Burgos; Javier de la Cueva González-Cotera, Abogado.
Why isegory? Our actual challenges are very much like the challenges that had to face our ancestors. Technologies might be a little bit different, but they are technologies anyway. Open data is a new way of understanding freedom of expression, the capability to participate and engage in citizenship.
The initiative Adopt a Senator showed that citizens are usually more careful and efficient in providing good data on public issues. They work better for democracy through transparency.
The principle of demarcation: data traceability should be under certain criteria, like validity: that is, truth may not be necessary, but formal rigour is absolutely a must. Coherence of data. A heuristic in 4 stages has been drawn so that validity can be assessed depending on its traceability.
Isegory breaks with hierarchy and the deterministic approach to history. Citizenship is liquid and it is on a daily basis, on doing, that institutions are built. Permissions have to be dealt with under the light of freedom of expression, not intellectual property.
Data preservation and illicit actions in matters of intellectual property: a constitutional vision of the Directive 2006/24. María Concepción Torres Díaz, Profesora de Derecho Constitucional, Universidad de Alicante.
What is the possibility and/or the impact on law that ISP reveal personal data in case of infraction of intellectual property rights? What are the rights affected? Privacy, data protection, secret of communications, intellectual property rights. Which is the priority? And in case where priorities were fixed on whether the crime is felony, how do we describe what constitutes felony?
In principle, personal date have to be available for research purposes, and detection and prosecution of serious crime.
Thus, depending on each specific case, it has to be accurately assessed the purpose of disclosing personal data. In any case, the Court of Justice of the European Union allows the disclosure of personal data if the national law (in this case in Sweden) also allows this disclosure.
The balance between intellectual property and data protection: on the changing weight of a new law. Gloria González Fuster, Researcher at Vrije Universiteit Brussel (VUB), Research Group on Law Science Technology & Society (LSTS) (Belgium).
SABAM (the Belgian authors association) in Scarlett Extended vs. SABAM and SABAM vs. Netlog asked for content filtering because of copyright infringement. Both cases have been partly cited as good examples for voting against ACTA.
Historically, the Court of Justice of the European Union has been inconsistent and changing on the way it has approached data protection when the later has been confronted against intellectual property rights. The problem has always been finding the correct balance between data protection or privacy and intellectual property rights.
In the cases of Scarlett Extended and Netlog, the Court of Justice of the European Union states that imposing filtering systems does not respect the fair balance between intellectual property rights and the right of personal data protection.
The “Ley Sinde”: a lost opportunity to regulate online entertainment in Spain. Ercilia García Álvarez, Catedrática Facultad de Economía y Empresa Universidad Rovira i Virgili; Jordi López Sintas, Profesor Titular de Universidad Facultad de Economía y Empresa Universidad Autónoma de Barcelona; Sheila Sánchez Bergara, Estudiante de Doctorado de la Universidad Rovira i Virgili.
Recently, there have been new practices in online entertainment that carry with them new legal tensions and legal answers to these tensions (both at the academic and legislator levels). But these answers have not really fit reality or practice. History has shown that there is an unbalance or bias towards intellectual property right holders, and users are usually last in line.
The Spanish “Ley Sinde” has not solved any of these problems. There are neither changes in consumption or practices nor in business models.
Copyright Limitations, Exceptions, and Copyright’s Innovation Policy Fred von Lohmann. Senior Copyright Counsel at Google
Copyright is not any more about creativity, but also about innovation. That is why we are increasingly seen exceptions or special treatments to initiatives like search engines, space shifting, ephemeral copies, remix culture, etc.
The problem is that we usually have to ask for permission first, and then innovate later, which undeniably hinders innovation, as we cannot always predict what is the kind of “permission” that is going to be needed. A first example is indexing, the way sound recognition works (as Shazam does), etc. all rely on making copies of existing works so that indexing or comparison is made possible. Of course, these are not copies that are going to be used themselves, but as a tool, as means to achieve other goals. How does copyright exactly fit in here? A second example is related to cloud computing.
Courts, safe harbours and fair use are ways to provide some flexibility for experimentation and innovation. Article 5, the adaptation right and the 3 step test have been tools that have worked quite well so far. But we’d rather revise the copyright directive to accommodate it to present times.
Discussion
Javier de la Cueva: we usually speak about books or movies or music when we speak about intellectual property, but I believe that the real revolution in creativity is coming from code. Von Lohman: indeed, a good example of that is all the programmers coding Java that, somehow, they are working for Oracle.
Copyserfs and the Stationers’ Company 2.0: How and why copyright law is evolving away from the protection of authors and toward the protection of intermediaries Greg Lastowka Professor of Law, Rutgers University, USA. Author of Virtual Justice (Yale University Press, 2010)
There is a $6 Bn trade on virtual worlds. Most of it relies on copyright law: from the creation of one’s identity to the very same content that is on the virtual platform. And whose property is a user designed avatar? Whose property are the structures that users create on virtual worlds?
In many ways, users are like peasants that contribute to the wealth of the virtual territory, but the territory is not theirs. The value of virtual platforms is created by users establishing community, not by gatekeepers.
On a pre-user-generated content (UGC) world, a professional created a product, a professional distributed the product, and a user consumed the product in exchange for a payment. In a UGC world, the user also produces, while most of the time, the professionals just maintain the platform where both creation and distribution happens.
Platforms compete to entice popular creativity; users are not paid to produce content; users pay platform to view user-generated content by subscribing to services or “pay” by viewing advertisements.
Critics (Lanier, Keen, etc.): UGC represents a coarser, cheaper culture without information gatekeepers; UGC is only created in limited genres; a large amount of UGC is poor quality; successful UGC creators would jump to join the ranks of content professionals; this is not making money; UGC creators rely on professional firms for tools, distribution and inspiration.
Boosters (Benkler, Jenkins, Shirky, etc.): UGC is more democratic; UGC allosw audiences to “speak back”; UGC is more collaborative.
Prior to 1709, there was a monopoly to the distribution of products. Thus, booksellers had a monopoly on books: they distributed the authors’ books to book purchasers, got money in exchange and transferred a part of it back to the authors. With the Statute of Anne, copyright was granted to authors so that there was competition amongst booksellers. With user-generated content, it is not clear who the author is, who the “bookseller” and who the end book purchaser. So, what is to be done with copyright?
The economic rationale of copyright was, with regard to certain artistic forms, specific to certain technologies of distribution.
Today, certain forms of artistic creativity are actually superabundant and the rationale of copyright does not apply anymore.
There is an added problem, as Marvel Enters. vs. NCSoft Corp shows: the latter provided the users to create their own superhero costumes, which somehow allowed this users to (re)create Marvel superheros’ costumes, thus infringing copyright. Who’s liable for that? Another example is MDY Indus. vs. Blizzard Entertainment. MYD created a software bot that enabled World of Warcraft users to play their characters for them, on an unattended way. Yet another example, Turnitin was sued for copyright infringement as it used students’ papers to run their business. In Facebook, Inc. v. Power Ventures, Inc. claiming that Power Ventures was copying Facebook data for their own purposes.
Some concluding remarks:
UGC platforms are privately-owned and privately-policed spaces /chattels.
If content is not portable the primary economic returns of UGC are obtained by the platform owner, not the author.
The law is evolving away from protecting the creator to protecting the distributor/owner of intellectual property rights.
But we should not kill the tools, the ways to recognize the value of UGC, we have to afford greater latitude for remix.
We should protect the creator interests.
Discussion
Marsden: if many of these creations are personal, can we look at it as personal data and from a privacy point of view? Lastowka: Yes, there is an obvious intersection between privacy and property UGC.
