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?
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.
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.
The Fantastic Flying Books of Mr. Morris Lessmore, courtesy of Ars Electronica
One of the main characteristics of the industrial age is the concentration of activity under a same roof. In order to realize the full potential of resources that are scarce and to minimize transaction costs, organizations tended to perform as many roles and tasks as possible. That is, a factory would non only weave, but spin, dye, weave, design, cut, sew and distribute.
We got used to this. And for the sake of efficiency and efficacy it did make sense.
A publisher, for instance, would also concentrate several roles and tasks under the generic concept of publishing. Not being exhaustive, these could be:
Identifying talent. Who is good at writing.
Investing in talent. Providing resources to the one that is good writing so that they write instead of doing some other thing.
Improving originals, that is, editing. In two ways. Firstly, improving the quality of writing by providing an external dispassionate look at the work. Secondly, making it more marketable according to the tastes of the potential readers.
Prepare the work for a support. If it is going to be printed, prepare a layout for printing.
Printing the work (or creating the actual product).
Prescribing good works. That is, building a reputation so that your opinion counts and then you’ll recommend the talent you found.
Finding or creating a demand. Who will by the book? Where are they? What are their tastes?
Distributing the book to the seller near the demand you found.
The digital revolution has implied that resources (knowledge intensive resources, like data, information and most kinds of intangible goods) are no more scarce, at least in technical terms (some legal restrictions may apply, but this is a layer put upon the technical one); with the end of scarcity, information costs drop dramatically. And the digital revolution has implied too that communications are almost costless and, thus, transaction costs also drop dramatically.
This has led to an increasing process of decentralization — subrogation, outsourcing, off-shoring… there are many names and ways to it — since the late XXth century and whose possibilities are but expanding with new software for creation and social media.
If we break up the roles and tasks that publishers usually perform, we can easily find alternate ways to do them in a mostly distributed way. We have changed some names to bring them closely to the actual names of such roles in the market:
Roles
Alternatives
Finding talent
Social media for content sharing, recommendation sites, virtual communities.
Producing
Crowdfunding, microlending — besides several ways to drastically reducing the need for investment or enable self-production.
Editing
Collaboration tools, comments on social media, ranking and recommendation sites, streaming and content sharing sites (with their analytics), tremendous exposure to others’ works, availability of professional or expert analysis to these others’ works, open courses and MOOCs, open educational resources.
Layout
Crowsourcing platforms, free layouts, self-editing and self-publishing websites, layout and format conversion software.
Printing
(provided there still is a need for printing) print on demand websites or services
Prescribing
Social networking sites (word of mouth), self-publishing websites, experts’ blogs or videoblogs, reputed authors’ personal websites or blogs or social media users.
Personal websites, social networking sites, file sharing services, online retailers, online marketplaces.
That there are alternatives does not necessarily mean that publishing, or publishers, are over. The alternatives may not even catch, the alternatives may live together with traditional publishers, or publishers themselves may abandon traditional ways of working and adopt the alternatives themselves, thus changing the ways without a change in the actors. The idea here is neither to kill anyone nor get rid of them, but just showing some of the many ways that intermediation is being challenged by the numerous possibilities to break up of centralization, the distribution of decision-making and task-execution.
Publishers — as many other institutions like schools and universities, newspapers, the recording industry or political parties themselves will have to reflect on what are the tasks that they are now performing, what are the alternatives to the centralization of these tasks, what is the task or set of tasks where the institution can add more value — especially in relationship of the alternatives — and whether it makes sense to stick to centralization or move towards specialization.
For most of these institutions, especially publishers, guidance on the design is probably the task where more value is added: how to become a better learner (instead of imparting courses), how to understand a piece of news (instead of producing yet more information), how to record a better song (instead of printing more CDs), how to make better decisions (instead of making them for the citizen) — or how to write a better book, despite who will pay for it, raise awareness on it, print it or distribute it.
Detaching the core task from the rest is difficult: firstly, because it is not easy to know what the core task is, given than for decades or centuries all of them have been mixed and sometimes indistinguishable between them; secondly, because the temptation to control everything is strong. But it is very likely that control is no more an option, and that others will identify your core business and make it their own.
Multidisciplinary debate on the challenges of smart cities Chairs: Marta Continente
Pilar Conesa. Founder and director of Anteverti.
Increasing concentration of people living in urban areas. Areas which are becoming totally saturated and ask for new ways or urban planning. This includes not only transportation, but also public services like education, healthcare, etc. The 19th century was a century of empires, the 20th century was a century of nation states, the 21st century will be a century of cities, Wellington E. Webb.
If we want to develop new cities, new smart cities, we need to know and share the approach behind. This is not trivial and it will determine the model of smart city that will be put into practice.
There is no smart city without a smart government.
Oriol Torruella. Director of the Legal Consultancy Department, CESICAT, Information Security Center of Catalonia
Smart city: improve the efficiency and efficacy of the management of the city, by means of an intensive usage of ICTs.
There are, though, some risks: the vulnerabilities of both software and hardware; the management of the citizen identity; treatment of personal data; affectation to the availability and security of critical infrastructures, etc.
It is crucial that citizens become smart citizens too if they are to be part of a smart city. They have to be aware of all risks of cibersecurity, what are the laws that apply to certain practices and activities, etc.
Ricard Faura. Head of Knowledge Society, Generalitat de Catalunya
We have to foster some elements through ICTs: participation, organization and collaboration.
For the smart city to be useful for the citizens, one needs to empower the citizens themselves, so that they can be active and critical. But ICTs have to be empowering, not barriers.
Main duties of the government: diffusion, information, awareness raising, training.
The city has to be a real lab where everything is possible and everything can be analysed and improved, and especially fitting the particular needs of the different communities that one finds within the city or across cities.
Discussion
José Luis Rubiés: Is there a risk of an illustrated despotism from the one that manages all these data? Who is the curator of the big data coming from smart cities? Ricard Faura: yes, this is a huge risk. Oriol Torruella: we are just at the dawn of smart cities and, as usually Humanity has done in the past, we work on a trial and error basis: we implement things, realize the risks, try to correct them, and on and on. Little by little we will learn to design better, to avoid risks before we implement, etc.
Q: can we extrapolate initiatives from one place to the other so that we do not have to reinvent the wheel? Marta Continente: yes and no. Yes, one can adapt what worked elsewhere. But the important thing is that ICTs, or whatever initiative on smart cities, are just a toolbox. And, as such, its application or usage will strongly depend on the realities found in each specific city.
Smart city, smart policing Prof. Dr. Dr. Juan José Medina Ariza. Professor of Criminology (University of Manchester)
Security has traditionally been based on a top-down visions, a centralized control room.
Many municipalities have sort of “dashboards” that map the city crime, security issues, socio-economic indicators, etc.
These dashboards aim at locating clusters where more crime takes place, identifying the determinants or correlating factors of that crime, etc. After this clustering and correlations, one can create tools that can try to predict crime, based on trends and simulations. And once crime is “predicted”, then comes “predicted policing”, that aims at stopping crime just before it takes place, going to the place where crime is most likely to happen.
Problems when opening data: What happens when we open the data? How legitimate is its collection? How fair is its analysis?
The risks of Campbell’s law: the more one uses an indicator for decision-making purposes, the less it is useful for decision-making purposes, as it use imprints a bias into the indicator itself.
We know too that in some cases, there are biases in citizens reporting crime: many of them will not be eager to report crime, because this will diminish the value of their real state, because of own security reasons, etc.
What’s next? From predicting hotspots to individual predictions. A growing awareness about the problems with algorithms. Going back to measuring what matters. Privatised criminal justice is not science fiction any longer.
On the other hand, we will maybe see a rise in transparency in what relates to police practices, like stop and search.
There is a problem with profiling with big data, as in the one hand it is built upon evidence, but on the other hand it can strengthen biases, stigmas and prejudices.
Discussion
E.J. Koops: does crime mapping represent reality or constitutes reality? Juan José Medina: this is definitely a problem with mapping that needs being addressed specifically in each and every case.
