Report: CREATe PGR students present at UofG School of Law “Work in Progress” Session

Some of our CREATe PGRs (L-R): Jie Liu, Zihao Li, Methinee Suwannakit and Jiarong Zhang (pre-social distancing!)

On 31 July 2020 CREATe PGRs participated in the University of Glasgow School of Law virtual PGR ‘Work in Progress’ session, sharing their updates under the Law and Technology (Methinee Suwannakit and Zihao Li), Social, Economic and Cultural Rights Recognition (Jiarong Zhang) and Copyright (Janet Burgess and Jie Liu) panels. Amy Thomas (RTA, Copyright Evidence Wiki Sub-Editor), one of the co-organisers of the PGR workshop, also chaired the Q&A sessions for the Social, Economic and Cultural Rights Recognition and Copyright sessions. This blog provides a summary of the PGR presentations, with some reflections on their experiences, valued feedback and future research directions.

Law and Technology

Beginning the session, the Law and Technology panel approached legal issues in the digital environment from multiple perspectives, including finance, tort and privacy law (ending in a topical discussion on blockchain and COVID contact tracing apps). 

Methinee Suwannakit ‘Protection of Privacy and Private Information in the Digital Age: the Case Study of Individual Media Users’

While modern technology has empowered individual media users, their activities might harm another privacy interest. Thus, there is a demand for better privacy protection in private disputes, which is in the area of private law. My presentation, therefore, aimed to analyse the application of Thai tort law in the case study of individual media users, compared with the English tort misuse of private information (MOPI). In order to comparatively evaluate the application of the law, six main categories of media scenarios are set. The formulated questions were asked to investigate how the courts would likely reply to particular situations in each category.

From my research, I found that the MOPI tort is sufficiently flexible in applying to most of the settings, depending upon facts, circumstances and the balancing test. Nevertheless, the MOPI tort has some constraints as it was extended from breach of confidence. Moreover, it is questionable whether the balancing test, focusing on media freedom and public interest, is suitable to apply to individual speakers. In Thailand, those circumstances in the case study have mostly been ignored, and the balancing exercise is underdeveloped. Although the general tort can theoretically be applied in the case study, the scope of the privacy right is uncertain, the requirement of the actual damages is problematic, and the legal framework is imprecise.

All in all, my presentation considered that the advantages of the tort of MOPI are more significant than its drawbacks. However, the appropriate balancing test in the light of individual speakers and the drawbacks need to be addressed first. In future, I would like to research whether the tort of MOPI is suitable to be developed in Thailand.

View Methinee’s slides here.

Zihao Li ‘The Impact of Emergent Technologies on the Formulation of EU Data Protection Law – A Case Study of Distributed Ledger Technology’

With the advancement of computational technology, data plays a more vital role to be fed to various Machine Learning (ML) and Artificial Intelligent (AI) models. The General Data Protection Regulation (GDPR), as one of the strictest data protection laws, is expected to play a greater part in monitoring data controllers/processors and empowering data rights to data subjects. However, this regulation has suffered unprecedented impact from nascent technologies both positively and negatively. Distributed Ledger Technologies (DLTs), as an innovation of a new era of data storage and code self-execution, have been a particular challenge for data protection law.

My presentation selected DLTs as a typical case of emerging technologies in order to scrutinize this impact from both positive and negative sides. First, the GDPR is based on the assumption that there is at least one data controller who controls the personal data in data processing. However, DLTs as a type of decentralised system are based on the idea that there is no central point to completely control the data in order to achieve transparency and integrity. So, from this angle, the characteristics of DLT challenge the basis of the GDPR. Secondly, another legislative assumption of the GDPR is that the data can be erased or rectified. However, under DLTs’ systems, modification and deletion of data are burdensome in order to guarantee transparency, security and data integrity. Accordingly, it is questionable as to how to achieve the right to be forgotten or right to rectification in the context of DLTs.

From another perspective, the characteristics of DLTs also can be implemented to achieve the GDPR’s two-fold objectives. On the one hand, the legislation is designed to boost the free movement and re-use of personal data, which should not be limited because of the protection of personal data. On the other hand, the DLT-based personal data management system could help data subjects enforce several data rights. DLTs are able to realize both objectives, if used appropriately.

Finally, my presentation reflected on the changing role and impact of blockchain, a new understanding of how personal data can be protected, and how to reconcile the emerging technologies and data protection law. In future, I would like to investigate why and how DLT and relevant Privacy-Enhancing-Technologies (PETs) could be used to build up a user-centric data protection regime in context of algorithmic bias.

View Zihao’s slides here.

Social, Economic and Cultural Rights Recognition

The second panel on Social, Economic and Cultural Rights Recognition provided timeous legal perspectives on hard hitting issues across different areas of law (including legal theory and international law), each focussing on the common and noble desire to promote people’s social, cultural or economic rights.

Jiarong Zhang ‘Uncopyrightability of Traditional Cultural Expressions: Originality of Hierarchy?’

My presentation focussed on the uncopyrightability of traditional cultural expressions, particularly music. In the context of the panel theme, my presentation focused on cultural and artistic creation, supplementing the other two speeches, which respectively talked about food purveyance and human rights in developing countries.

I initially explained the importance of copyright law to traditional music before challenging the orthodox explanation of its uncopyrightability; that is, that traditional music cannot meet the originality requirement of copyright. My presentation proposed an alternative explanation, that is, an implicit cultural and technological hierarchy of copyright law that makes traditional music uncopyrightable. The originality requirement is both an inducement and a pretext of the hierarchy. My presentation proved this approach by dissecting music production patterns, including arrangements, ‘scoring’, covers, and sampling. In doing so, the presentation aimed to remove one barrier for copyright protection of traditional music.

The Law School PGR session was conducted in a friendly and supportive atmosphere. Particularly in the Q&A session, I answered many thought-provoking questions such as ‘what is the appropriate copyright improvement path to advance the protection of traditional music?’. In that respect, my future research concentrates on the authorship problem of traditional music.

View Jiarong’s slides here.

Copyright

Ending the session, the Copyright panel provided specialist overviews of technical, copyright issues, including an empirical study of amateur musicians and their understanding of copyright law, and how collective management organisations operate in China.

Janet Burgess ‘Amateur Musicians and Copyright Law: Where (an d Why) Social and Commercial Values Diverge (Chapter 8: Participants’ Perceptions of Copyright Law)’

Previous research into copyright law frequently focusses on the rightsholder and often views the users of copyright material as wilful contravenors.  My primarily qualitative socio-legal research redresses the balance by investigating how amateur musicians engage with and negotiate copyright law.

The significant percentage of the UK population who are amateur musicians make music primarily as a social activity, but amateur music-making also promotes valuable health and wellbeing, social, cultural, and economic benefits. Nevertheless, copyright law permeates every aspect of their music-making activities.  My presentation outlined empirical research investigating amateur musicians’ perceptions of copyright law, across the three traditions of score-based, folk/traditional and popular music.  It identifies not only significant acceptance and support for copyright law but also significant confusion and even fear, with important differences between the three traditions, and different groupings of perceptions.  These then affect participants’ levels of compliance.

Presenting to highly qualified colleagues is a nerve-wracking but rewarding experience.  It challenged me to make my research accessible for an audience of IP, but perhaps not music copyright experts, and concentrated the mind ahead of potentially in-depth questioning: ‘does law have to be fair?’ was one example.  Everyone was very supportive, however, and the very positive feedback I received was a huge confidence boost, confirming the wider interest in and relevance of my chosen topic.

View Janet’s slides here.

Jie Liu ‘Proposal for collective management reform on copyright and related rights in China: from the perspective of license models, technology and competition’

With the expansion of copyright and economic development, bureaucracy became progressively prevalent, and collective copyright management signified the intensity of its early simulation status of property. This is especially true in China, considering the bureaucratic approach to copyright management organisations (CMOs) that was adopted in 1992. My presentation argued that there is a gap between the bureaucratic approach of collective copyright management developed in China due to legal transplantations, and the dynamic changes in the copyright licensing market. These changes are based upon theories of bureaucracy/legal transplants and the hierarchy within the legal narrative between the authors and performers.

My case study involves an intensive analysis of one phenomenon, including the outcome and process of collective copyright that has been implemented since 1992, when collective copyright management was first transplanted into China. I research this phenomena and process by analysing two controversial judicial cases in the KTV industry that played out over the past five years. I also conduct a review of the legislative process regarding collective and extended licensing in the last twenty years. I contextualized the findings from these two aspects and revealed that the legal issue behind the practice and legal text is the tendency of the bureaucracy of intellectual property to take over. In particular, the two-tier bureaucracy is disclosed: bureaucratic simulation of copyright, and; administrative structure and behaviour of intellectual property.

The ‘Work in Progress Session’ was not only an informal event providing an opportunity to communicate with colleagues, but also a milestone for me to push myself to engage in the ‘new normal’ academic environment!

 

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