Has Data Protection gone a step too far in Europe?

Data protection is very much part and parcel of the human rights driven approach that the EU has taken for personal data. Leaving aside the rather broad exceptions that are present for the state when it comes to gathering information on people when it comes to revenue and taxes (under section 8 of the Data Directive 1995) this is broadly a positive step. However as the saying goes, too much of a good intention can lead inter alia to a poor outcome. In this case, the use of data to better serve customer needs being waylaid.

This has in part been prompted by the reading of the book, What Stays in Vegas: The World of Personal Data by Adam Tanner. Here there are numerous negative examples of how Big Data and how the prevalence of digitization has lead to personal data being used for morally questionable outcomes. For instance the use of criminal mugshots in websites for the titillation of the general populace would likely give a typical Data Protection commissioner fits. This is very much in keeping with the commercial driven agenda where the worth of the data is key to understanding how the US crafts their rather minimalist data protection laws.

On the other hand, where commercial interests are present so too are the technological innovation that goes hand in hand with such. Key to this was the paper, written in part by CEO of a Vegas Corp. Gary Loveman, "Putting the Service-Profit Chain to Work" which traces the importance of the regular customer. Whilst he/she in an average transaction might not spend much, a satisfied customer in their lifetime would be the sum total of their entire spending and as such would be equivalent to the occasional bigger spender. This insight lead to more emphasis on data gathering on these heretofore unremarked segments of the market place and the use of Big data to better craft personalised products to keep them as regular spenders. As Tanner in his book mentions in the context of gathering this data, there is a market imperative to keep much of this open and voluntary as even the suggestion of "creepiness" would lose the client and perhaps draw the ire of the legislators. As well in parallel, this drives the technological innovation of Big data.

Thus while not saying their should be a whole scale rollback of the EU data protection, given that the current directive is being overhauled to make it fit for the Cloud/Big Data purpose, it would be relevant to note that the societal good can as well be serviced by for-profit motivations.

Book Review:Copyright and Mass Digitization by Borghi & Karapapa

This book deals with how analogue works, such as paper books, are transferred onto the digital realm en mass.



The context is mostly within the EU (especially referencing the European Copyright Directive ) but also investigates the US concept of "Fair use". The authors provide an excellent overview of the differing bundles of rights associated with copyright and how this is evolving in terms of reaction to societal and technological shifts. Key is the bulk digitisation efforts by commercial and non-profits and how this effects authors both known and unknown (ie orphan works). This is in parallel to developments in the area of Big Data, where for instance new discoveries could be made by data mining connections between various online resources such as scientific papers.

Overall a good introduction to this interesting intersection of law and IT.

Adverse Possession and Digital Books

Land is a finite physical resource. God only created a limited amount of it. Historically, land has been linked to both social status and wealth creation. So as to ensure that that land remains used and contributes to common weal in many jurisdictions if one does not safeguard ones possession of the land, then the land's ownership rights may be transferred to another party. One means of doing so is via adverse possession. In Ireland, a good overview of how this is achieved is in the book: T. Kelly, Neighbours and the law, (Clarius Press 2012).

In essence, if Party's A land is occupied without their knowledge for 12 years by Party B, then if the formalities are followed the land ownership's rights are transferred. In the larger realm of European law, this has been judged as allowable in the ECHR judgement of Pye vs UK [http://en.wikipedia.org/wiki/J_A_Pye_(Oxford)_Ltd_v_Graham].

Thus, if you are still with me, what is the relationship with Digital Books? This has been suggested by an interesting work, Copyright and Mass Digitization by Maurizio Borghi and Stavroula Karapapa, where the authors link how Digital works are related to unused land which does not add to the common economy. In this case, the crop is binary instead of physical:a culture's heritage. The argument goes that without an online presence, then it is possible for an authored work to be lost and thus impoverishing society at large.

Up till this year(2014) this might have seen to be an academic exercise. However this with recent European case of C-117/13 Technische Universität Darmstadt v Eugen Ulmer KG [http://curia.europa.eu/juris/documents.jsf?num=C-117/13] has proved to be of real world significance. In essence this judgement allows libraries to provide online content of works (with certain restrictions) even if the rights holder's wish to withhold position.

If one were minded of how Jurisprudential matters might have influenced this, then Judge Posner's Law and Economics would seem to be the relevant construct to study; especially in light of the Google Books saga. Thus bearing in mind the malleability of rights which states give/take on land ownership then it is unsurprising such a similar attitude has found a digital presence.

Case of Cartier, Montblanc and Richemont v BSkyB, BT, TalkTalk, EE and Virgin

The case of Cartier, Montblanc and Richemont v BSkyB, BT, TalkTalk, EE and Virgin (Open Rights Group intervening) [2014] EWHC 3354  deals with the Claimants Intellectual rights holder seeking to force the Defendants ISPs to block various websites that the Claimants indicate are hosting and selling counterfeit goods. An excellent summary of the background of this is found in the IPKat site [http://ipkitten.blogspot.ie/2014/10/online-enforcement-has-colour-and-name.html] as well the judgement on Bailli [http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2003/3354.html&query=Cartier&method=boolean].

The summary is that with some caveats the rights holder is allowed under various legal provisions (domestic and EU) to apply for a blocking injunction. The upshot is that the offending sites can be blocked.

The Ancient Greeks had a phrase, men/de translated roughly as on the one hand and on the other.

Thus stealing has been perceived as a wrong doing since Biblical times. There are numerous and many laws on the subject of in both common and criminal law both on the direct action of stealing and the surrounding activities: from supply of house breaking tools to that of selling counterfeit goods on a newspaper (a paper based media of information exchange). So the latter example seems to be analogous close to a website allegedly selling similar goods and viewable via the ISPs network. However to differential, that while the Cartier judgment thankfully provides a sunset clause (with two years being suggested) it ignores the social,economic and IT framework that websites in general operate in. A vast majority of sites are both legitimate and their underlying software can be changed so as to restrict content on site. This coupled with the fact that sites have a value, with site names being auctioned depending on their worth means than any injunction, even if justified, can impact the sites owners. Furthermore there is an economic disparity between the power dynamic between corporate rights holder and site owners. From examples of how other take-down notices by rights agencies have been automated [https://www.techdirt.com/articles/20120308/03505018034/eff-argues-that-automated-bogus-dmca-takedowns-violate-law-are-subject-to-sanctions.shtml] so as to be overlying broad and having a censorious effect, then over eager use of injunction could have the same effect on the EU freedom of selling goods.

Therefore while counterfeiting is a problem that deserves solution, it should be a nuanced one that those not effect the rights and open innovative flow of data that rights holders themselves have used to sell their products.