Category Archives: European Policy

Book launch: ‘Private Power, Online Information Flows and EU Law: Mind The Gap’

angela-daly-eu-bookBook launch at: The Conservatory, Bloomsbury Publishing Plc 
50 Bedford Square
London
WC1B 3DP
6pm – 8pm, 31 January 2017

This event is FREE but registration is required on Eventbrite.

Speaker: Angela Daly

With guest speakers: Professor Chris Marsden, University of Sussex; Dr Orla Lynskey, London School of Economics and Political Science

About the Book

This monograph examines how European Union law and regulation address concentrations of private economic power which impede free information flows on the Internet to the detriment of Internet users’ autonomy. In particular, competition law, sector specific regulation (if it exists), data protection and human rights law are considered and assessed to the extent they can tackle such concentrations of power for the benefit of users.

Using a series of illustrative case studies, of Internet provision (including the net neutrality debate), search, mobile devices and app stores, and the cloud, the work demonstrates the gaps that currently exist in EU law and regulation. It is argued that these gaps exist due, in part, to current overarching trends guiding the regulation of economic power, namely neoliberalism, by which only the situation of market failure can invite ex ante rules, buoyed by the lobbying of regulators and legislators by those in possession of such economic power to achieve outcomes which favour their businesses. Given this systemic, and extra-legal, nature of the reasons as to why the gaps exist, solutions from outside the system are proposed at the end of each case study.

Praise for the Book

‘This is a richly textured, critically argued work, shedding new light on case studies in information law which require critical thinking. It is both an interesting series of case studies (notably cloud computing, app stores and search) that displays original and deeply researched scholarship and a framework for critiquing neoliberal competition policy from a prosumerist and citizen-oriented perspective.’ – Professor Chris Marsden, University of Sussex.

The Competence of the European Union in Copyright Lawmaking

competence-of-eu-in-copyright-lawmakingBook launch event at the IALS
6pm – 8pm, 15 Dec 2016

Register online at Eventbrite to book your free ticket

Speaker: Dr Ana Ramalho, Assistant Professor of Intellectual Property, Maastricht University

Discussant: Professor Lionel Bently, Herchel Smith Professor of Intellectual Property and Director of the Centre for Intellectual Property and Information Law, University of Cambridge.

In this seminar Ana Ramalho will discuss her new book, which inquires into the competence of the EU to legislate in the field of copyright and uses content analysis techniques to demonstrate the existence of a normative gap in copyright lawmaking.

To address that gap Ana Ramalho proposes the creation of benchmarks of legislative activity, reasoning that EU secondary legislation, such as directives and regulations, should be based on higher sources of law.

In the book she investigates two such possible sources: the activity of the EU Court of Justice in the pre-legislative era and the EU treaties. From these sources Ana Ramalho establishes concrete benchmarks of legislative activity, which she then tests by applying them to current EU copyright legislation.

This provides examples of good and bad practices in copyright lawmaking and also shows how the benchmarks could be implemented in copyright legislation. Finally, Ana Ramalho offers some recommendations in this regard.

This seminar will be followed by the book launch of “The Competence of the European Union in Copyright Lawmaking: A Normative Perspective of EU Powers for Copyright Harmonization” by Ana Ramalho

EU Copyright Reform: Outside the Safe Harbours, Intermediary Liability Capsizes into Incoherence

In the following piece, Christina Angelopoulos, lecturer in intellectual property law at the University of Cambridge, analyses the aspects of the Commission’s new proposal for the digital single market directive that are relevant to intermediary liability. The post was originally published on the Kluwer Copyright Blog.

As has by now been extensively reported, on 14th September the European Commission released its new copyright reform package. Prominent within this is its proposal for a new Directive on Copyright in the Digital Single Market.

copyright-40632_1280

The proposal contains an array of controversial offerings, but from the perspective of this intermediary liability blogger, the most interesting provision is the proposed Article 13 on ‘Certain uses of protected content by online services’. This is highly problematic in a number of different ways.

The Supposed Problem

As the Communication on a fair, efficient and competitive European copyright-based economy in the Digital Single Market (which was released in parallel to the proposal) explains, the new Article 13 is intended to address what in Brussels parlance over the past year has come to be termed the ‘value gap’. This refers to the idea that revenues generated from the online use of copyright-protected content are being unfairly distributed between the different players in the value chain of online publishing. A distinction is usually drawn in this regard between ad-funded platforms, such as YouTube, Dailymotion and Vimeo, and subscription-funded platforms, such as Spotify or Netflix. While the latter require the consent of copyright-holders to operate legally, the business model of the former revolves around user-created content (UCC). As a result, they tend to focus not on copyright licensing, but on notice-and-takedown systems, which allow them to tackle any unwanted infringements of copyright snuck onto their websites by their users. [To continue reading this post on the Kluwer Copyright Blog, click here.]

Brexit: “You don’t know what you’ve got till it’s gone”

Brexit IT law scrabble

In the following editorial, Professor Lilian Edwards considers the implications of the Brexit vote for information law and assesses the mood amongst the academic community in the aftermath of the EU Referendum.

The article was first published in Volume 13, Issue 2 of SCRIPT-ed: A Journal of Law, Technology and Society. Professor Edwards’ views do not represent those of the Information Law and Policy Centre or the Institute of Advanced Legal Studies. 

On 23 June 2016 a slim majority of UK voters decided we should leave the EU in one of the great political upsets of British political history. On 24 June, the next day, CREATe,[1] the RCUK copyright and business models centre which I have helped run since 2012, ran a one-day festival at the Royal Society of the Arts in London. This was designed to be a showcase and celebration of four years of working at the cutting edge of copyright and how it either helps or hinders the creative industries and arts. Hundreds of academics signed up to show and see, including the Director of CREATe, Martin Kretschmer of Glasgow University, from Germany by birth, and many others from all over Europe and beyond.

It was a classic international IT/intellectual property event: analysing laws made throughout the world to regulate globalised cultural markets, transnational data and product flows, disruptive technologies that disregard borders, and audiences as likely to listen to music made in Brazil via decentralised P2P networks, as watch Netflix series made in the US, or use smartphones made in Japan to watch Hindi pop videos on YouTube.

In the event, the CREATe Festival became more of a wake. Reportedly, experienced academics, who thought themselves hardened to trauma by years of bombardment from REF, TEF and NSS, were almost in tears at the first session. This writer, derelict of duty, was not there to corroborate, still staring like a rabbit in the headlights at the TV in a hotel bedroom in Docklands, where the dominant tech, business and financial workers were almost equally in shock.

So, Brexit. As the dust not so much settles as temporarily accumulates while we work out what on earth happens next, what are the implications for IT law and UK academe? Are they really as bad as they seemed that morning? Continue reading

What is the impact of the Brexit vote on the Investigatory Powers Bill?

IP bill 2 copyThe Investigatory Powers Bill is currently proceeding through parliament – its second reading in the House of Lords took place on Monday 27 June.

Readers may have missed reports on the Lords debate amidst financial losses, Labour Party resignations, the Conservative Party leadership race and, of course, England’s embarrassing exit from Euro 2016 (among other things).

Given the ongoing political uncertainty and distractions after the Brexit vote, Open Rights Group campaigners have called on the government to halt the passage of the Bill on the basis that it cannot be adequately scrutinised by parliamentarians, the media and the public.

The Open Rights Group suggests that the passage of the Bill could be affected by the political crisis – the Bill could be accelerated or delayed depending on whether a General Election is called.

Ongoing legal cases may also affect its passage – particularly the impending European Court of Justice ruling on a case brought by MPs Tom Watson and David Davis in relation to the Data Retention and Investigatory Powers Act (DRIPA). In the Lords debate, Lord Butler described the DRIPA ruling as “hanging over the whole issue”.

Elements of DRIPA – emergency legislation passed in 2014 – have been included in the Investigatory Powers Bill. If the ECJ upholds a decision by the High Court in July 2015 that the sections on self-authorised access and bulk retention of data breach fundamental EU Charter rights under Articles 7 and 8, then this could have a significant impact on the IP Bill.

It is likely that any temptation to ignore ECJ rulings relevant to the IP Bill (and more generally) in light of the leave vote will be resisted as any failure to comply with current EU treaty obligations could possibly provide a pretext for greater EU action against the UK to speed up Brexit. Although there is no mechanism to formally expel the UK from the EU, indirect action could be explored which might put pressure on the UK’s control of the exit process through Article 50.

In the Lords debate, there was disagreement over the impact of the leave vote on the Bill. Lord Rosser noted that the vote to leave the EU had “added to the complexity” of the Bill due to uncertainties over European cooperation on security issues, but the Advocate General for Scotland, Lord Keen of Elie did not believe that any changes to the Bill would be required in light of the Brexit vote.

For the time being, the Bill continues its path to Royal Assent – the House of Lords committee stage is due to begin on 11 July.

What is the impact of Brexit on data protection and the GDPR?

A consensus already appears to be emerging among legal commentators that many UK organisations will need to comply with the provisions of the European Union’s General Data Protection Regulation regardless of the progress of the UK’s path to Brexit.

The GDPR was due to be adopted by the UK in May 2018 after a long process of EU legislative reform. As soon as the UK officially leaves the EU, in theory it is possible that the GDPR could be ignored – data protection is already written into UK law in the Data Protection Act 1998. In practice, however, if the UK continued to be part of the European Economic Area then the UK would have to abide by GDPR.

Moreover, as Andrew Cormack points out, any organisation outside the EU that wishes to process the data of “data subjects who are in the Union” will also have to abide by GDPR (Article 3(2)). This would be relevant to a number of UK organisations who need to process the data of EU clients, customers, students etc.

Further, any EU organisation sending personal data to the UK as a non-member state would no longer be able to guarantee that there was “adequate protection” of data in the UK, unless the UK sought to obtain a declaration to the contrary.

The position of the UK vis-à-vis GDPR was summarised by the ICO in a statement published in response to the referendum result:

“If the UK is not part of the EU, then upcoming EU reforms to data protection law would not directly apply to the UK. But if the UK wants to trade with the Single Market on equal terms we would have to prove ‘adequacy’ – in other words UK data protection standards would have to be equivalent to the EU’s General Data Protection Regulation framework starting in 2018.”

It is likely, therefore, that elements of the GDPR will be incorporated into UK law however Brexit progresses. Both Anya Proops QC and Eduardo Ustaran argue that any UK business which provides services into the EU will need to understand and comply with GDPR.

Brendan Van Alsenoy: I tweet therefore I am … subject to data protection law?

In this guest blog post, Brendan Van Alsenoy – legal researcher at the Centre for IT and IP Law, University of Leuven – analyses the scope of the personal use exemption under the new EU General Data Protection Regulation (GDPR).

A note with regard to the relevance of the GDPR to the UK: this post was written before the EU referendum result on 24th June. For the ICO’s statement on the potential regulatory implications of a UK exit from the EU please see this link.

The blog post was originally posted on the CiTiP blog at KU Leuven. It is based on a draft paper included in the CiTiP Working Paper Series. You can follow the CiTiP on Twitter here.


In less than 30 years, individuals have transcended their role as passive “data subjects” to become actively involved in the creation, distribution and consumption of personal data. Unless an exemption or derogation applies, individuals are – at least in theory – subject to data protection law.

The evolving role of the individual

We use information and communication technologies every day. Mobile devices tell us where to eat, who to meet and how to get there. We share pictures, post videos and tweet reviews. We google everything and everyone.

With all these processing capabilities at our fingertips, the question can be asked: are we subject to EU data protection law?

Continue reading

Exploring the potential impact of Brexit from the EU on the UK’s Communication Industries

The Information Law and Policy Centre is contributing to an Exeter University project which considers the impact of a possible Brexit from the EU on the UK’s communication industries. The Centre has assisted two stakeholder workshops with the project team, led by Professor Alison Harcourt.

On 21 June, a data protection symposium will communicate two policy briefings on EU data protection legislation to stakeholders in the field. It will also create a forum for scenario building exercises to gauge how stakeholders will react to policy-making alternatives.

You can read Alison Harcourt’s briefing paper on ‘Cross-border data transfer‘ which will form the basis of the symposium discussion on the project’s website.

Last month, a similar symposium considered the theme of cross-border broadcasting. The event focused on scenario building exercises, with John Howell leading SWOT analyses of the key factors affecting the cross-border broadcasting sector.

Catherine Barnard (Professor of European Union Law at the University of Cambridge) also gave a presentation to stakeholders about the implications of invoking Article 50 in the scenario of the UK voting to leave the EU.

You can read Alison Harcourt’s three policy briefings about Cross border television, the UK’s role in EU policy-making, and How Brexit might affect EU AVMS policy-making. You can also read a report of the Workshop Findings.

The project is part of the UK in a Changing Europe initiative.