Post by Jie Liu (PhD Candidate at School of Law, University of Glasgow) and Zihao Li (PhD Candidate at School of Law, University of Glasgow).
After being held online for two years due to the pandemic, BILETA (The British and Irish Law Education Technology Association) conference was finally convened in a fully hybrid form on 12-14 April 2022. On the picturesque campus of the University of Exeter, participants with diverse backgrounds engaged in academic and practical discussions around the theme ‘The role of creativity in law’.
Based on this theme and other wide critical topics which revolved around new technology and law, the conference set out broad parallel sessions, namely ‘Privacy, data protection and surveillance’, ‘Future Technology’, ‘Digital Culture’, ‘Intellectual Property’ ‘Internet Regulation and Governance’ and ‘Cybercrime and Cybersecurity’.
Keynote Speech
The conference started with Professor Uma Suthersanen’s (Queen Mary, University of London) keynote on ‘Creativity and capital as fictitious commodities within an intellectual property framework’. Contributing to the typical and continuing debates on the bifurcating discourse between IP law protects and rewards creativity versus IP law protects investment, the keynote reflected on the conference theme from a theoretical lens. Prof. Suthersanen emphasised valuing the early modern rules of IP law from a broad perspective, rather than setting up strict conceptual silos such as creativity, labour, and investment. Her keynote benefits from Karl Polanyi’s theory that the economy was embedded in the non-economic institution and social relations (political project), which were realized via law and property as institutional tools. In this theory, knowledge as ‘fictitious commodities’ along with land, labour and investment-backed labour are materialised as tradeable commodities. Based on Polanyi’s theory, Prof. Suthersanen mapped out two related ‘socio-legal patterns: (i) motivations for early rules in relation to creative and entrepreneurial labour and products in Europe; and (ii) the extent to which current IP norms and laws evolved to absorb such myriad motivations over five hundred years. and tried to create a pointillist landscape which, in turn, may answer continuing legal problems that emerge today. As she argued, IP is a rationalized law about creativity, but it is not merely creativity. This significant keynote is expected to be published in the forthcoming chapter in The Cambridge Handbook of Investment-Driven Intellectual Property, Goold, P and Bonadio, E. (Eds.), Cambridge University. Press, 2022.
Intellectual Property & Digital Culture
Hayleigh Bosher (Brunel University) focused on the importance of music makers from the perspective of the function of music on humans’ physical and emotional development. She highlighted the importance of music on a personal level in terms of improving coordination, educational outcomes and emotional trauma and illness, and upgraded the importance to a higher level of social inclusion and social responsibility in human evolution. Dr. Bosher’s research provided positive and scientific support to the justification for protection on individual musical makers and equal remuneration treatments. In terms of individual artists’ protection, Jie Liu (University of Glasgow) instead approached this view based on bureaucracy theory via the angle of collective copyright management. Derived from her doctoral thesis, Liu argues that institutions rather than individuals are the principal beneficiary of regulatory intervention with constant emerging business modes in the digital era. This is reflected through a strong bureaucratic tendency in the copyright legal framework, which implies the enforcement methods utilized have been subtly reformed by including a detailed regulatory technique (even legislations) concerning the efficiency and certainty of circulation of copyrighted works in the secondary market. As a result, creativity, one of individual human qualities, is not being encouraged, and homogeneous products are spreading unchecked. This view benefits from a theoretical framework analysis of classic Weber’s bureaucracy. In the end, she proposed a serious rethinking of institutional choice and design in the decentralized internet environment.
Data Protection and Privacy
Data protection and privacy law, as another important part of technology law, was widely covered by the 37th BILETA conference. Many scholars discussed this issue from diverse perspectives.
Katherine Nolan (LSE) reviewed the central role of control in data protection and the balance between empowerment and paternalistic protection of the individual under the General Data Protection Regulation (GDPR). By uncovering the scope of individual decisional autonomy over data, she argued that the conception of an empowered individual under the GDPR is rather narrow. For example, in many significant areas, an individual is not expected to exert control over data (e.g. employment, public and essential services). However, from a paternalistic perspective, the controller or authority must predict the impact upon the individual and act accordingly, but that individual has no ex-ante input. By contrast, at the enforcement level the balance is reversed. The individual takes on a greater role in their self-defence by granting individual rights to correct data controller wrongdoing. Therefore, she argued that individual empowerment under the GDPR is revealed as quite unbalanced, with a limited role for substantive decisional autonomy but a heightened responsibility for self-defence.
Dr Jiahong Chen (University of Sheffield) discussed the GDPR compliance and vulnerable people. As the number of smart home devices increases, they are used by vulnerable people regardless of whether they are designed specifically for them or for the general population (for example, smart door locks, smart alarms or voice assistants). Dr Chen’s research mainly focused on children and inherently vulnerable adults and analysed how to comply with the GDPR when they use smart products, with a particular focus on the UK through references made to the Information Commissioner’s Office (ICO) guidelines and reports. He also argued that protecting vulnerable people’s data by design and default should be adopted in every smart product. However, he argued that the identificatory approach of protecting vulnerable people is likely to lead to new form of digital exclusion and less practical feasibility. At the end of his presentation, he threw out an open question: should we adopt the identificatory approach or a more accessible and inclusive privacy-friendly approach to improve data protection for all?
Dr Mark Leiser (Leiden University) focused on dark patterns and unfair commercial practice. Dark pattern is a kind of data-driven manipulation technology that makes users do things that users did not mean to, like buying or signing up for something. He firstly identified seventeen common types of dark patterns and proposed a new taxonomy consistent with the Unfair Commercial Practices Directive (UCPD) to facilitate critical, legal, and regulatory dialogue. In doing so, the presentation also analysed the protections provided to consumers by the UCPD in the context of dark pattern. Apart from that, Dr Leiser compared the protection provided by UCPD with two other different legal regimes (i.e., data protection and consumer protection) in the context of dark pattern regulation. Finally, the presentation closed with policy recommendations to improve the regulation of dark patterns for commercial purposes.
Zihao Li (University of Glasgow) assessed the GDPR’s scope and protection in the context of Online Algorithmic Pricing (OAP), with a particular focus on affinity-based algorithmic pricing. He firstly proposed a new taxonomy of OAP by processing the data types, which classifies OAP into three categories: personal data based, non-personal data based and affinity data based. In doing so, Zihao argued that most studies neglect the harm caused by affinity-based algorithmic pricing, which may bypass the GDPR. Furthermore, his presentation pointed out that although GDPR can cover some types of OAP, the data rights provided by the GDPR struggle to provide substantial help. The key finding of his research is that the GDPR fails to apply to affinity-based algorithmic pricing, but the latter still can lead to privacy invasion. Therefore, at the end of his presentation four potential resolutions are raised, relating to group privacy, the remit of GDPR, the ex-ante measures in data protection, and a more comprehensive regulatory approach.
BILETA 2022 provided a friendly discussion environment and thought-provoking discussion panels. It was a great conference for the showcase of the world cutting-edge legal academic research in law and technology. We are looking forward to the next edition.