Privacy in the Post-NSA Era: Time for a Fundamental Revision?

Big Brother Watch and others have filed a complaint against the United Kingdom under the European Convention on Human Rights about a violation of Article 8, the right to privacy. It regards the NSA affair and UK-based surveillance activities operated by secret services. The question is whether it will be declared admissible and, if so, whether the European Court of Human Rights will find a violation. This article discusses three possible challenges for these types of complaints and analyses whether the current privacy paradigm is still adequate in view of the development known as Big Data.

On the Search for an Adequate Scope of the Right to Be Forgotten

During the last decades, the virtual world increasingly gained importance and in this context the enforcement of privacy rights became more and more difficult. An important emanation of this trend is the right to be forgotten enshrining the protection of the data subject’s rights over his/her “own” data. Even though the right to be forgotten has been made part of the proposal for a completely revised Data Protection Regulation and has recently been acknowledged by the Court of Justice of the European Union (“Google/Spain” decision), to date, the discussions about the right and especially its implementation with regard to the fundamental right to freedom of expression have remained rather vague and need to be examined in more depth.

Efforts and Models of Education for Parents: the Danish Approach

The report examines the relationship between day care institutions, schools and so called “parents unfamiliar to education” as well as the relationship between the institutions. With in Danish public and professional discourse concepts like parents unfamiliar to education are usually referring to environments, parents or families with either no or just very restricted experience of education except for the basic school (folkeskole). The “grand old man” of Danish educational research, Prof. Em. Erik Jørgen Hansen, defines the concept as follows: Parents who are distant from or not familiar with education, are parents without tradition of education and by that fact they are not able to contribute constructively in order to back up their own children during their education. Many teachers and pedagogues are not used to that term; they rather prefer concepts like “socially exposed” or “socially disadvantaged” parents or social classes or strata. The report does not only focus on parents who are not capable to support the school achievements of their children, since a low level of education is usually connected with social disadvantage. Such parents are often not capable of understanding and meeting the demands from side of the school when sending their children to school. They lack the competencies or the necessary competence of action. For the moment being much attention is done from side of the Ministries of Education and Social Affairs (recently renamed Ministry of Welfare) in order to create equal possibilities for all children. Many kinds of expertise (directions, counsels, researchers, etc.) have been more than eager to promote recommendations aiming at achieving the ambitious goal: 2015 95% of all young people should complement a full education (classes 10.-12.). Research results are pointing out the importance of increased participation of parents. In other word the agenda is set for ‘parents’ education’. It seems necessary to underline that Danish welfare policy has been changing rather radical. The classic model was an understanding of welfare as social assurance and/or as social distribution – based on social solidarity. The modern model looks like welfare as social service and/or social investment. This means that citizens are changing role – from user and/or citizen to consumer and/or investor. The Danish state is in correspondence with decisions taken by the government investing in a national future shaped by global competition. The new models of welfare – “service” and “investment” – imply severe changes in hitherto known concepts of family life, relationship between parents and children etc. As an example the investment model points at a new implementation of the relationship between social rights and the rights of freedom. The service model has demonstrated that weakness that the access to qualified services in the field of health or education is becoming more and more dependent of the private purchasing power. The weakness of the investment model is that it represents a sort of “The Winner takes it all” – since a political majority is enabled to make agendas in societal fields former protected by the tripartite power and the rights of freedom of the citizens. The outcome of the Danish development seems to be an establishment of a political governed public service industry which on one side are capable of competing on market conditions and on the other are able being governed by contracts. This represents a new form of close linking of politics, economy and professional work. Attempts of controlling education, pedagogy and thereby the population are not a recent invention. In European history we could easily point at several such experiments. The real news is the linking between political priorities and exercise of public activities by economic incentives. By defining visible goals for the public servants, by introducing measurement of achievements and effects, and by implementing a new wage policy depending on achievements and/or effects a new system of accountability is manufactured. The consequences are already perceptible. The government decides to do some special interventions concerning parents, children or youngsters, the public servants on municipality level are instructed to carry out their services by following a manual, and the parents are no longer protected by privacy. Protection of privacy and minority is no longer a valuable argumentation to prevent further interventions in people’s life (health, food, school, etc.). The citizens are becoming objects of investment, also implying that people are investing in their own health, education, and family. This means that investments in changes of life style and development of competences go hand in hand. The below mentioned programmes are conditioned by this shift.

Oblivion, Erasure and Forgetting in the Digital Age

In light of the recent European Court of Justice ruling (ECJ C-131/12, Google Spain v Spanish Data Protection Agency),the “right to be forgotten” has once again gained worldwide media attention. Already in 2012, whenthe European Commission proposed aright to be forgotten,this proposal received broad public interest and was debated intensively. Under certain conditions, individuals should thereby be able todelete personal data concerning them. More recently – in light of the European Parliament’s approval of the LIBE Committee’samendments onMarch 14, 2014 – the concept seems tobe close to its final form.Although it remains, for the most part,unchanged from the previously circulated drafts, it has beenre-labelled as a“right of erasure”. This article argues that, despite its catchy terminology, the right to be forgotten can be understood as a generic term, bringing together existing legal provisions: the substantial right of oblivion and the rather procedural right to erasure derived from data protection. Hereinafter, the article presents an analysis of selected national legal frameworks and corresponding case law, accounting for data protection, privacy, and general tort law as well as defamation law. This comparative analysis grasps the practical challenges which the attempt to strengthen individual control and informational self-determination faces. Consequently, it is argued that narrowing the focus on the data protection law amendments neglects the elaborate balancing of conflicting interests in European legal tradition. It is shown thatthe attemptto implement oblivion, erasure and forgetting in the digital age is a complex undertaking.

Software als Schutzgegenstand des Europäischen Urheberrechts

After 20 years of silence, two recent references from the Czech Republic (Bezpečnostní softwarová asociace, Case C-393/09) and from the English High Court (SAS Institute, Case C-406/10) touch upon several questions that are fundamental for the extent of copyright protection for software under the Computer Program Directive 91/25 (now 2009/24) and the Information Society Directive 2001/29. In Case C-393/09, the European Court of Justice held that “the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code.” As “any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task,” a graphical user interface (GUI) is not protected under the Computer Program Directive, as it does “not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program.” While the definition of computer program and the exclusion of GUIs mirror earlier jurisprudence in the Member States and therefore do not come as a surprise, the main significance of Case C-393/09 lies in its interpretation of the Information Society Directive. In confirming that a GUI “can, as a work, be protected by copyright if it is its author’s own intellectual creation,” the ECJ continues the Europeanization of the definition of “work” which began in Infopaq (Case C-5/08). Moreover, the Court elaborated this concept further by excluding expressions from copyright protection which are dictated by their technical function. Even more importantly, the ECJ held that a television broadcasting of a GUI does not constitute a communication to the public, as the individuals cannot have access to the “essential element characterising the interface,” i.e., the interaction with the user. The exclusion of elements dictated by technical functions from copyright protection and the interpretation of the right of communication to the public with reference to the “essential element characterising” the work may be seen as welcome limitations of copyright protection in the interest of a free public domain which were not yet apparent in Infopaq. While Case C-393/09 has given a first definition of the computer program, the pending reference in Case C-406/10 is likely to clarify the scope of protection against nonliteral copying, namely in how far the protection extends beyond the text of the source code to the design of a computer program and where the limits of protection lie as regards the functionality of a program and mere “principles and ideas.” In light of the travaux préparatoires, it is submitted that the ECJ is also likely to grant protection for the design of a computer program, while excluding both the functionality and underlying principles and ideas from protection under the European copyright directives.

Creative Commons licences and design Are the two compatible?

This article analyses whether Creative Commons licences are applicable to and compatible with design. The first part focuses on the peculiar and complex nature of a design, which can benefit from a copyright and a design protection. This shows how it can affect the use of Creative Commons licences. The second and third parts deal with a specific case study. Some Internet platforms have recently emerged that offer users the possibility to download blueprints of design products in order to build them. Designers and creative users are invited to share their blueprints and creations under Creative Commons licences. The second part of the article assesses whether digital blueprints can be copyrightable and serve as the subject matter of Creative Commons licences, while the last part assesses whether the right to reproduce the digital blueprint, as provided by Creative Commons licences, extends to the right to build the product.

A manifesto for an e-lending limitation in copyright

In the European Union, lending is an exclusive right for copyright and related rights, but Member States can transform public lending to a right of remuneration and even exempt some establishments from any payment. The making available of works online is not covered by the public lending right regime of the Rental and Lending Directive but is considered as an act of making available governed by the InfoSoc Directive. As a consequence, libraries are currently not allowed to digitally transmit works to their patrons as lending, but have entered into licenses with publishers to develop an offer of lending of e-books, also called e-lending, with the intermediation of dedicated platforms operated by commercial actors. Compared to physical lending, e-lending is not based on ownership of the book by libraries but on its provision by this intermediary. This paper discusses how the objective of enabling libraries to engage in e-lending should be achieved, and what is the proper dividing line between a market-based solution, as developing today, and a limitation to exclusive rights. The impact of an extension of the public lending right to e-lending should be assessed, but not based on a criterion of direct substitution of a book on loan at the library to a book bought at a retailer. By definition, libraries are substitutes to normal trade. Instead, the overall effect of lending to the commercialisation of books and other works should be verified. Particular conditions for a limitation in favour of lending are also addressed, and notably the modalities of lending (a limited duration, one simultaneous user per title, …), not to make e-lending through libraries easier and preferable to the normal acquisition of an e-book. This paper argues in favour of some and controlled extension of the public lending right to cover the lending of e-books and other digital content. For the role of libraries is essential in providing access to works and culture to readers who would or could not rely only on normal acquisition of books or other items on the market, to works that are not provided by the market, and to material for research. Libraries are a third sector providing access to works, aside the market and non-market exchanges between individuals. This role should not lose its relevance in the digital context, or it would culturally impoverish future generations of readers.

Privacy as human flourishing: Could a shift towards virtue ethics strengthen privacy protection in the age of Big Data?

Privacy is commonly seen as an instrumental value in relation to negative freedom, human dignity and personal autonomy. Article 8 ECHR, protecting the right to privacy, was originally coined as a doctrine protecting the negative freedom of citizens in vertical relations, that is between citizen and state. Over the years, the Court has extended privacy protection to horizontal relations and has gradually accepted that individual autonomy is an equally important value underlying the right to privacy. However, in most of the recent cases regarding Article 8 ECHR, the Court goes beyond the protection of negative freedom and individual autonomy and instead focuses self-expression, personal development and human flourishing. Accepting this virtue ethical notion, in addition to the traditional Kantian focus on individual autonomy and human dignity, as a core value of Article 8 ECHR may prove vital for the protection of privacy in the age of Big Data.