By Methinee Suwannakit and Amy Thomas (CREATe PhD Candidates)
BILETA (The British and Irish Law Education Technology Association) was formed to promote the research and knowledge on technology law and policy. This year’s conference was held on 16-17 April 2019 at Queen’s University Belfast, with the theme ‘Back to the futures: law without frontiers?’. This posed important questions: how will legal systems engage with technological developments and anticipate future directions? How will privacy and security issues be addressed? This post focusses on highlights from the plenary sessions in IP and data protection/privacy.
Eliza Easton’s (Nesta/PEC) keynote speech opened the conference with an overview of the PEC’s five areas of work, including CREATe’s leading role in ‘IP, Business Models, Access to Finance and Content Regulation’. Her speech emphasized the need for independent research to contribute to the success of the UK’s creative industries in order to address imminent policy questions: what do new and successful business models look like and how are these developed? How do we regulate the platform economy? Many of the conference plenary sessions touched on these matters.
Perhaps most notably on the subject of the platform economy, IP discussions centred on addressing the potential impact of Article 17 (Draft Article 13) of the impending Copyright Directive. From a human rights perspective, Felipe Romero Moreno (University of Hertfordshire) proposed to analyse Article 17 using the three-part test of the ECtHR; Ruth Flaherty (University of East Anglia) instead approached this from the perspective of fan communities, and how unauthorized derivative uses may be undervalued by this new provision.
Other IP-related work highlighted a shrinking space for copyright regulation. Fan communities apparently provide their own means of ex-ante and ex-post regulation according to research by Rachel MacGuire (Queen Mary, University of London), particularly as anonymity and pseudonymity in these communities challenge copyright’s reliance on an identifiable author. Nick Scharf’s (University of East Anglia) Star Wars themed presentation explored DRM and EULAs in streaming platforms and how these contribute to asymmetric power balances quite separately of any justification in copyright. Products increasingly become reduced to permissions in Generation Rent – a practice he labels the ‘dark side’ of streaming.
The discussions overall highlighted a shift in perspective of IP as a purely commercial right to a subject having more social and cultural dimensions. Megan Rae Blakely’s (Lancaster University and previous CREATe PhD) presentation summarized this most succinctly by visually mapping an increase in human rights-based language in the IP lexicon, suggesting a closer relationship than previously anticipated.
Data Protection and Privacy
Emily Laidlaw (University of Calgary) questioned whether a tort of invasion of privacy may help tackle online abuse, suggesting that ‘technological mindfulness’ should be included when analyzing the privacy law context. Therefore, she aims to explore the technology related to online abuse and how to operationalize this into a legal conceptual model.
Maria Samantha Esposito (Politecnico di Torino) argued that data protection laws provide limited references to safeguard human rights interests other than the right to privacy and the right to data protection. Thus, it is necessary to develop a broader impact assessment model which considers the different human rights and fundamental freedoms that might suffer from data processing operations.
Aysem Diker Vanberg (University of Greenwich) assessed the implementation of the right to data portability in Article 20 of the GDPR and considered whether this actually works for social media platforms. In her preliminary research findings, she proposed that the right to data portability does not support genuine data portability. Further measures are needed to extend its scope and realize its full potential, particularly for social media platforms. She suggested that technological routes to enable users to exercise their right to data portability should be explored. Also, industry players like social media networks have a responsibility to work on developing interoperable architectures, formats and metadata which makes data transfers easier and user friendly.
Defence Against Dark Artefacts (DADA), a research group from an ongoing multidisciplinary EPSRC research project, found that apart from technical mechanisms, a range of legal issues require clarification in order to secure smart homes. For example, the roles and responsibilities of a range of actors involved in smart homes, the applicability of the household exemption, and the identifications of (joint) data controller(s). The researchers argued that the fair distribution of responsibilities among different categories of actors is required and moreover that the all-or-nothing household exemption is clearly outdated for smart homes.
Paul Bernal (University of East Anglia) strongly believes that the failure of privacy protection within the internet ecosystem is the underlying fake news problem, since data analysis is a substantial tool for fake news writers in determining what to write about and how to deliver news to targeted people. As a matter of fact, data analysis works best by invasions of privacy. Thus, the most important step to reduce the fake news problem is to provide better privacy protection and promote a more ‘privacy-friendly’ ecosystem, for example, by making some practices illegal, breaking up internet giants and supporting technological solutions.
Similarly, Francesca Pichierri (FIZ Karlsruhe) discussed online manipulation and its danger to democracy. As the internet has become the main source of harvesting data, there are consequences and risks of manipulative practices which can distort the autonomous choice of individuals, which undermines public discourse and democracy (for example the case of the US election or the Brexit vote). She argued that data protection law can play a vital role to prevent and protect individuals against manipulative practices and enable democracy to defend itself.