IDP2009: Rights

Warning: liveblog, my impressions, not direct quotes, and it’s a free-flowing roundtable. Also using simultaneous translation in parts which will have an impact, particularly on phrases and quotes. Don’t shoot the messenger(s)!

Back after coffee for a roundtable discussion on legal issues of all sorts. In the chair is Raquel Xalabarder, who makes the perceptive remark that we still struggle with definitions of the platforms that we are talking about. Platforms, though, clearly create rights and obligations – for the users and for the owners.

Profs. Jane Ginsburg from Columbia Law School and Alain Strowel of Saint-Louis in Brussels but also a lawyer with Covington & Burling collaborate on their presentation, weaving back and forth regarding copyright issues. Strowel opens with a reference to the recent FT article on Facebook, highlighting the desire for openness, sharing and co-operation. This is ‘free’ but there is an invisible or dark side, which is the economics. IP fits into this category. As services develop, they become more IP-conscious – look for example at Twitter’s assertion of trademark. We should distinguish between content originated by the users and content that is ‘made by others’.

This brings us over to Ginsburg, who will look at user-created content; typically this content is automatically endowed with protection (subject to the usual fixation and originality requirements), reminding us that literary merit is not a requirement of copyright law. She reads extracts from the Facebook and MySpace standard terms and translates them into their real meaning – to me, this is the gift that never stops giving, and the audience responds accordingly. The Creative Commons icons are a useful way of adopting user-friendly and meaningful terms … but they are certainly not ‘self-enforcing’ and actual enforcement is extremely difficult (not to mention certain registration requirements under US law).

Strowel picks up the question of non-UGC (i.e. potentially infringing content published on these platforms) and the various degrees of liability, considering the possible infringements (distribution? reproduction? derivative work?) as well as limitations to the law (the unclear status of ‘making available’ as applied to mere placement on the Internet in the US). It is refreshing to go into this in detail – often we take for granted some of the more complicated ‘old’ aspects of copyright law (or what Strowel calls the mechanics of copyright) when considering it in the digital context.

Selected other comments (from both contributors – put together they engaged in a good discussion/rotation):

- there is an issue in comparing something like YouTube (where the infringing content on which secondary liability is alleged is ‘high value’) with other sites where this is not the issue.
- even under EU law there are different interpretations from state to state of implied licences as applied to copyright.
- Art 5 EUCD (limitations) is quite different to (the flexible but unpredictable) ‘fair use’ doctrine in the US – the various cases on thumbnails are discussed as an example of this.
- there are more intermediaries on the Internet than was expected – and they can be in different categories when it comes to liability; hosting providers (inc. social networking sites) are different to traditional web-hosts too (multiple third parties, many more pages than a normal website, intermediary both technical and advertising-based) – art 14 EUCD has a too-brief definition of hosting provider in any event (does it cover Facebook? Strowel argues it is not certain)
- brief discussion of the French cases: MySpace, DailyMotion, Google Video have all been the subject of legal proceedings with some inconsistent results and some elaboration on the concept of notice; all of this is in the context of the (unresolved) Viacom case in the US, which may well be superceded by industry principles.
- YouTube’s business model is affected by the steps required to keep the safe harbour: they cannot tailor their advertising in the way that they might like to, as doing so would affect their categorisation
- can a HADOPI-like solution deal with repeat infringers outside of the ISP context?

Speaking separately, Antoni Roig, a professor of constitutional law at the home-town Universitat Autònoma de Barcelona, brings the questions back into the realm of public law, but also wondering what the differences are between ‘IT law’ and ‘IT for lawyers’, and how jurists and engineers approach privacy in different ways. (Interestingly, he says that the Spanish data protection regulations date from 1978, along with the Constitution). Privacy and data protection can have different aspects – they are in many respects separate legal regimes, with the EU having a particular role on data protection and the role of the Article 29 Working Party. The courts have acknowledged a right to data protection but there is also the use of the human dignity clause as a way of ‘updating’ rights. Is the US moving towards an EU-style data protection framework?

Roig summarises the A29 approach as including on principles of
- awareness amongst the users not to give data if necessary (& this affects the providers too; the principles mention this which is a surprisingly radical move towards ethical engineering)
- informing the user e.g. when there has been a breach

He also has some good words for the role of privacy-enhancing technologies (PETs), and how they play a part in a constitutional concept of privacy based not on law alone. Persistent pseudonyms are crucial to success here. (We will be returning to data protection in the afternoon session). By designing for privacy, we can achieve a long-term solution even though there may be short-term difficulties with making it work. Legal scholars have not really legitimised these technologies yet, though there is potential for showing a court that a tool that protects privacy could prevent a violation of fundamental rights. Concluding, he argues that the European approach to RFID, where incorporation of privacy at the design stage is being encouraged, is promising and brings with it some optimism.

Issues covered in the Q&A included the power of terms and conditions, the potential for advertising revenue without violating safe harbour, the difference between the ‘user’ and the ‘provider’ terminology (should bloggers be considered providers for safe harbour purposes?), multiple vs unique pseudonyms (and the relationship with biometrics), the convergence between trademark law and domain name policy (with Facebook URLs being a good example of where there is controversy), the L’Oreal/Ebay litigation at the ECJ and the French courts

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