L. Salgado, R. Pinho de Morais, here.
Tuesday, April 16, 2013
Friday, April 12, 2013
Thursday, April 11, 2013
USPTO roundtables on software-related patents: materials available
Recordings and presentations here.
Wednesday, April 10, 2013
Tuesday, April 09, 2013
Abuse Of IP Rights Under China's Antitrust Rules: Recent Cases Have A Potentially Serious Impact
McDermott Will & Emery, here.
Microsoft and others file EU antitrust complaint over Android app bundling
TheVerge.com, here.
---------
Two central allegations, it seems:
I
- Android is the dominating mobile operating system (running in 70% of units shipped at the end of 2012)
- Android phone makers wanting to include "must-have" Google apps such as Maps or YouTube are required "to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone"
- Other apps and services providers are disadvantaged
- Google’s Android is put in control of consumer data on a majority of smartphones shipped today.
II
- Google distributes Android open source operating system for free, i.e. below cost
- this makes it difficult for other providers of operating systems to recoup investments in competing with Google’s dominant mobile platform.
Fairsearch's 2011 White Paper indirectly provides some additional background information to the allegations, see e.g. p. 35: Google is also attempting to monopolize mobile search and search advertising through the Android operating system...According to some, Google is “not trying to make a profit on Android or [its web-browser] Chrome . . . .In essence [by giving Android away for free], they are not just building a moat; Google is also scorching the earth for 250 miles around the outside of the castle to ensure no one can approach it"(reference omitted).
An overview of the other competition complaints filed by Google's competitors (source: Fairsearcheurope.eu, here):
Read also Groklaw's take on the allegations, here.
---------
Two central allegations, it seems:
I
- Android is the dominating mobile operating system (running in 70% of units shipped at the end of 2012)
- Android phone makers wanting to include "must-have" Google apps such as Maps or YouTube are required "to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone"
- Other apps and services providers are disadvantaged
- Google’s Android is put in control of consumer data on a majority of smartphones shipped today.
II
- Google distributes Android open source operating system for free, i.e. below cost
- this makes it difficult for other providers of operating systems to recoup investments in competing with Google’s dominant mobile platform.
Fairsearch's 2011 White Paper indirectly provides some additional background information to the allegations, see e.g. p. 35: Google is also attempting to monopolize mobile search and search advertising through the Android operating system...According to some, Google is “not trying to make a profit on Android or [its web-browser] Chrome . . . .In essence [by giving Android away for free], they are not just building a moat; Google is also scorching the earth for 250 miles around the outside of the castle to ensure no one can approach it"(reference omitted).
An overview of the other competition complaints filed by Google's competitors (source: Fairsearcheurope.eu, here):
Monday, April 08, 2013
Conceptual Study on Innovation, Intellectual Property and the Informal Economy
WIPO Secretariat and J. de Beer, here.
The Single Market for financial services and competition policy
European Competition Forum 2013, Videos here.
Legal Assessment of Patent Settlement Agreements Containing “Reverse” Payments
R. Subiotto, Presentation here.
Walking the Data Protection Tightrope: The Google Privacy Policy Investigations
Europeanlawblog.eu, here.
Smokescreen: How Managers Behave When They Have Something to Hide
T. Artiga Gonzalez, M. Schmid, D. Yermack, here.
Wednesday, April 03, 2013
The Use of Standard Essential Patents: Competition Policy Issues
S. Vezzoso (this blog's author), Presentation here.
Tuesday, April 02, 2013
The Actavis case before SCOTUS shows that the weak patent issue is system-wide:
Patentprogress.com, here.
Friday, March 29, 2013
Google pledges not to sue open-source users or developers over specified patents
Computerworld.com, here.
Tuesday, March 26, 2013
Sunday, March 24, 2013
The Economic Impact of the Data Protection Regulation in the E.U
L. Christensen, A. Colciago, F. Etro and G. Rafert, here.
Saturday, March 23, 2013
Friday, March 22, 2013
Thursday, March 21, 2013
CJEU Referral in Huawei v. ZTE Concerning FRAND
Here (German).
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
-------------
My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
Ehoganlovells.com, here.
See also Fosspatents.com, here and Juve.de, here (German).
-------------
My quick reading of the CJEU referral, based on the translation of the Court's order as kindly made available by Fosspatents.
The questions essentially revolve around the concept of “willing licensee” against which the SEP (standard essential patent) owner has been seeking an injunction. The concept at issue can obviously have even dramatically different shades and meanings. In fact, it can range from a mere “(oral) declaration in broad and general terms indicating the [the potential licensee’s] willingness to enter into negotiations” to “a binding offer to the SEP owner on terms that the SEP owner cannot refuse without treating the infringer unfairly or discriminatorily”, furthermore requiring that “the infringer, in anticipation of the license he is seeking, already complies with his contractual obligations with respect to past acts of infringement.”
A middle ground could be the requirement that “the infringer has indeed entered into negotiations, such as by, for example, communicating terms and conditions under which he is prepared to conclude a license agreement.”
In the event that “the [infringer's] submission of a binding
offer to conclude a license agreement is a requirement” it would then be
necessary to clarify whether that offer should “involve specific substantive and/or
chronological requirements”, whether it would “have to set forth all of the
commercial terms that in accordance with relevant industry practice are usually
set forth in such license agreements,” and whether it could “be conditioned
upon actual use and/or validity of the SEP-in-suit”. Moreover, “in the event
that the infringer's [precontractual] fulfillment of obligations arising from
the requested license is a requirement” for the finding of a “willing licensee,”
the Court asks whether the infringer could be “required, in particular, to make
disclosures relating to past acts of infringement and/or to pay
[precontractual] royalties”, and, finally, whether the “obligation to pay
[precontractual] royalties” could also “be fulfilled by giving security.”
Open Letter to Vice-President Almunia from 11 Complainants (Foundem/Google)
Searchneutrality.org, here.
Wednesday, March 20, 2013
Standard essential patents: who is really holding up (and when)?
G. Langus, V. Lipatov, D. Neven, here.
Tuesday, March 19, 2013
Parallel Exclusion
S. Hemphill, T. Wu, here.
"In industries marked by rapid technological change, the exclusion of entrants has a far greater impact on the development of the industry. In these industries, exclusion, not price-fixing, is the “supreme evil” that antitrust should address.", p. 1212.
"In industries marked by rapid technological change, the exclusion of entrants has a far greater impact on the development of the industry. In these industries, exclusion, not price-fixing, is the “supreme evil” that antitrust should address.", p. 1212.
Supreme Court on the "first sale" doctrine and copyrighted works lawfully made abroad
Kirtsaeng v. John Wiley & Sons, Inc., No. 11–697, here.
The questions:
"Putting section numbers to the side, we ask whether
the “first sale” doctrine applies to protect a buyer or other
lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy
into the United States (and sell it or give it away) without
obtaining permission to do so from the copyright owner?
Can, for example, someone who purchases, say at a used
bookstore, a book printed abroad subsequently resell it
without the copyright owner’s permission?", p. 6.
The answer:
"In our view, the answers to these questions are, yes. We
hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad."
Some competition scholar's highlights:
"The “first sale” doctrine is a common-law doctrine with
an impeccable historic pedigree", p. 18.
"American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer", p. 19.
"the Constitution’s language
nowhere suggests that its limited exclusive right should
include a right to divide markets or a concomitant right
to charge different purchasers different prices for the same
book, say to increase or to maximize gain...(T)o the contrary, Congress enacted a copyright law that
(through the “first sale” doctrine) limits copyright holders’
ability to divide domestic markets. And that limitation is
consistent with antitrust laws that ordinarily forbid market divisions.", p. 32.
The questions:
"Putting section numbers to the side, we ask whether
the “first sale” doctrine applies to protect a buyer or other
lawful owner of a copy (of a copyrighted work) lawfully
manufactured abroad. Can that buyer bring that copy
into the United States (and sell it or give it away) without
obtaining permission to do so from the copyright owner?
Can, for example, someone who purchases, say at a used
bookstore, a book printed abroad subsequently resell it
without the copyright owner’s permission?", p. 6.
The answer:
"In our view, the answers to these questions are, yes. We
hold that the “first sale” doctrine applies to copies of a
copyrighted work lawfully made abroad."
Some competition scholar's highlights:
"The “first sale” doctrine is a common-law doctrine with
an impeccable historic pedigree", p. 18.
"American law too has generally thought that competition, including freedom to resell, can work to the advantage of the consumer", p. 19.
"the Constitution’s language
nowhere suggests that its limited exclusive right should
include a right to divide markets or a concomitant right
to charge different purchasers different prices for the same
book, say to increase or to maximize gain...(T)o the contrary, Congress enacted a copyright law that
(through the “first sale” doctrine) limits copyright holders’
ability to divide domestic markets. And that limitation is
consistent with antitrust laws that ordinarily forbid market divisions.", p. 32.
General Court on the "Bananas Cartel"
Case T‑588/08, Dole Food Company, Inc., and Dole Germany OHG, v European Commission, here.
Monday, March 18, 2013
The Register’s Call for Updates to U.S. Copyright Law
M. Pallante, here.
Some general points:
- Because the dissemination of content is so
pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.
- central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age
- apply fresh eyes to the next great copyright act to ensure that
the copyright law remains relevant and functional
- keeping the public
interest at the forefront, including how to define the public interest and who may speak for it
- possible and necessary to have a copyright law that combinessafeguards for free
expression, guarantees of due process, mechanisms for access, and respect for intellectual
property
- authors are intertwined with the interests of the public. As the first beneficiaries of the copyright
law, they are not a counterweight to the public interest but instead are at the very center of the
equation
To do list:
- clarifying the scope of exclusive rights revising exceptions and
limitations for libraries and archives, addressing orphan works, accommodating persons who
have print disabilities, providing guidance to educational institutions, exempting incidental
copies in appropriate instances, updating enforcement provisions, providing guidance on
statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims,
reforming the music marketplace, updating the framework for cable and satellite transmissions,
encouraging new licensing regimes, and improving the systems of copyright registration and
recordation
"Bold" adjustments to the general framework:
- reverting works to the public
domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office
- requiring copyright owners to object or “opt
out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries
Some general points:
- Because the dissemination of content is so
pervasive to life in the 21st century, the law also should be less technical and more helpful to those who need to navigate it.
- central equation for Congress to consider is what does and does not belong under a copyright owner’s control in the digital age
- apply fresh eyes to the next great copyright act to ensure that
the copyright law remains relevant and functional
- keeping the public
interest at the forefront, including how to define the public interest and who may speak for it
- possible and necessary to have a copyright law that combinessafeguards for free
expression, guarantees of due process, mechanisms for access, and respect for intellectual
property
- authors are intertwined with the interests of the public. As the first beneficiaries of the copyright
law, they are not a counterweight to the public interest but instead are at the very center of the
equation
To do list:
- clarifying the scope of exclusive rights revising exceptions and
limitations for libraries and archives, addressing orphan works, accommodating persons who
have print disabilities, providing guidance to educational institutions, exempting incidental
copies in appropriate instances, updating enforcement provisions, providing guidance on
statutory damages, reviewing the efficacy of the DMCA, assisting with small copyright claims,
reforming the music marketplace, updating the framework for cable and satellite transmissions,
encouraging new licensing regimes, and improving the systems of copyright registration and
recordation
"Bold" adjustments to the general framework:
- reverting works to the public
domain after a period of life plus fifty years unless heirs or successors register their interests with the Copyright Office
- requiring copyright owners to object or “opt
out” in order to prevent certain uses, whether paid or unpaid, by educational institutions or libraries
Digital Music Consumption on the Internet: Evidence from Clickstream Data
L. Aguiar, B. Martens, here.
Friday, March 15, 2013
Au nom du droit à l'oubli, quel patrimoine pour l'Europe de demain ?
Association des archivistes français, ici.
Datenschutz in Europa stärken
Pressemitteilung, Konferenz der Datenschutzbeauftragten des Bundes und der Länder, hier.
Thursday, March 14, 2013
Wednesday, March 13, 2013
Vous allez pouvoir revendre vos livres numériques… mais pas librement
Lafeuille.blog.lemonde.fr, ici.
Tuesday, March 12, 2013
México:Iniciativa de Reforma Constitucional en materia de Telecomunicaciones
Presidencia.gob.mx, aquì.
Privacy, technologie en de wet
J. Bloem, M. van Doorn, S. Duivestein, T. van Manen, E. van Ommeren, hier
Monday, March 11, 2013
Friday, March 08, 2013
Thursday, March 07, 2013
Television broadcasters may prohibit the retransmission of their programmes by another company via the internet
Judgment in Case C-607/11, ITV Broadcasting Ltd and Others v TVCatchup Ltd, Press Release here.
What Constitutes a Diligent Search Under Present and Proposed Orphan Work Regimes?
D. Hansen, G. Hinze, J.Urban, here.
Wednesday, March 06, 2013
Tuesday, March 05, 2013
Standard Setting Organizations Can Help Solve the Standard Essential Patents Licensing Problem
K.-U. Kühn, F. Scott Morton, & H. Shelanski, here.
Monday, March 04, 2013
Les données culturelles, absentes de la feuille de route du gouvernement sur l’Open Data
Scinfolex.wordpress.com, here.
Thursday, February 28, 2013
Statement of the Working Party on current discussions regarding the data protection reform package
Article 29 Data Protection Working Party, here.
Freier Zugang zu öffentlich finanzierten Forschungsergebnissen
Antrag der SPD, Deutscher Bundestag, hier.
Wednesday, February 27, 2013
Tuesday, February 26, 2013
Vertical Restraints for On-Line Sales
P. Buccirossi, here (Note submitted to the OECD Competition Committee).
Saisine d’office pour avis portant sur le secteur de la distribution pharmaceutique
Autorité de la concurrence, Décision n° 13-SOA-01 du 25 février 2013, ici.
Monday, February 25, 2013
Zur Verfassungswidrigkeit des Leistungsschutzrechts für Presseverleger
A. Blankenagel, W. Spoerr, hier.
Sunday, February 24, 2013
Saturday, February 23, 2013
Thomas Hoeren: Leistungsschutzrecht würde Notifizierungspflicht verletzen
Leistungsschutzrecht.info, hier.
Google News: “We made history in a very good way for the citizens of France.”
Kluwercopyrightblog.com, here.
Dutch Royal Library obtains license to provide access to cultural heritage
Futureofcopyright.com, here.
Google may reach antitrust settlement with E.U. in second half of the year
Washingtonpost.com, here.
Internet Competition and E-books: Challenging the Competition Policy Acquis?
S. Vezzoso (this blog's author), Presentation here (ppt file).
Thursday, February 21, 2013
Wednesday, February 20, 2013
Tuesday, February 19, 2013
Federal Trade Commission v. Phoebe Putney Health System
No. 11–1160. Argued November 26, 2012—Decided February 19, 2013, here.
Competition Law and Personal Data : Preliminary Thoughts on a Complex Issue
D. Geradin & M. Kuschewsky, here.
Monday, February 18, 2013
Malleable malls: Shopping centres are proving well-suited to the digital age
TheEconomist.com, here.
CHART OF THE DAY: How Much Money Amazon Is Making From The Kindle Ecosystem
BusinessInsider.com, here.
Friday, February 15, 2013
Licensing Controversy — Balancing Author Rights with Societal Good
Scholarlykitchen.sspnet.org, here.
Critical Cloud Computing
A Critical Information Infrastructure Protection (CIIP) perspective on cloud computing, ENISA, here.
Macmillan to Pay $20 Million to Settle State, Class Action Price-Fixing Claims
Publishersweekly.com, here.
Thursday, February 14, 2013
Proposed new EU General Data Protection Regulation: Article-by-article analysis paper
UK Information Commissioner's Office, here.
Vertical restraints in soccer: Financial Fair Play and the English Premier League
T. Peeters, S. Szymanski, here (pdf file).
Wednesday, February 13, 2013
Dutch government will end protection of non-original works to modernise copyright law
Futureofcopyright.com, here.
BGH legt EuGH Frage zum technischen Schutz von Schutzmaßnahmen für Videospiele vor
Institut für Urheber- und Medienrecht, hier.
Tuesday, February 12, 2013
Monday, February 11, 2013
U.S. appeals judges quiz lawyers on rules for patenting software
Newsandinsight.thomsonreuters.com, here.
Access and the Public Domain
R. Picker, here.
Of particular interest to me is how broad access issues are likely to shape the "scale and scope of competition in the provision of the public domain".
Of particular interest to me is how broad access issues are likely to shape the "scale and scope of competition in the provision of the public domain".
Efectos del carácter restrictivo de la normativa comercial sobre la competitividad de la economía catalana
Autoritat Catalana de la Competència, aquí.
Friday, February 08, 2013
Macmillan settles with DOJ, and Apple is last man standing in ebook pricing case
PaidContent.org, here.
Interesting to academia and beyond:
"Electronic versions of academic textbooks” are removed from the settlement’s “requirements and prohibitions” because the DOJ antitrust case focused only on trade books.
Interesting to academia and beyond:
"Electronic versions of academic textbooks” are removed from the settlement’s “requirements and prohibitions” because the DOJ antitrust case focused only on trade books.
The Digital Economy
OECD, Competition Committee, DAF/COMP(2012)22, here.
Coup de coeur: the French contribution to the October 2011 hearing, p. 75 ff.
Coup de coeur: the French contribution to the October 2011 hearing, p. 75 ff.
Thursday, February 07, 2013
Comparative Analysis on National Approaches to ISP Liability for Copyright Infringement
I. Garrote Fernandéz-Diez, here.
Tuesday, February 05, 2013
Monday, February 04, 2013
Efforts to Update and Strengthen Privacy Law in Europe and the United States
Letter from prominent US consumer and civil liberties organizations to US government leaders, here.
Leistungsschutzrecht für Presseverlage: Müsste Google wirklich zahlen? – eine kartellrechtliche Analyse
C. Kersting, S. Dworschak, hier.
Market Dominance and Quality of Search Results in the Search Engine Market
I. Lianos, E. Motchenkova, here.
Irish High Court Order following FitFlop investigation involving allegations of resale price maintenance
Competition Authority Press Release, here.
Sunday, February 03, 2013
Saturday, February 02, 2013
Friday, February 01, 2013
Thursday, January 31, 2013
Wednesday, January 30, 2013
Tuesday, January 29, 2013
Monday, January 28, 2013
Sunday, January 27, 2013
Friday, January 25, 2013
U.S. firms, officials resisting Europe’s push for stronger digital privacy rules
WashingtonPost.com, here.
Bundesgerichtshof erkennt Schadensersatz für den Ausfall eines Internetanschlusses
Bundesgerichtshof III ZR 98/12, Pressemitteilung hier.
Volltext hier.
Aus der Pressemitteilung:
"...Nach der Rechtsprechung des Bundesgerichtshofs muss der Ersatz für den Ausfall der Nutzungsmöglichkeit eines Wirtschaftsguts grundsätzlich Fällen vorbehalten bleiben, in denen sich die Funktionsstörung typischerweise als solche auf die materiale Grundlage der Lebenshaltung signifikant auswirkt"...."Demgegenüber hat der Senat dem Kläger dem Grunde nach Schadensersatz für den Fortfall der Möglichkeit zuerkannt, seinen Internetzugang für weitere Zwecke als für den Telefon- und Telefaxverkehr zu nutzen. Die Nutzbarkeit des Internets ist ein Wirtschaftsgut, dessen ständige Verfügbarkeit seit längerer Zeit auch im privaten Bereich für die eigenwirtschaftliche Lebenshaltung typischerweise von zentraler Bedeutung ist. Das Internet stellt weltweit umfassende Informationen in Form von Text-, Bild-, Video- und Audiodateien zur Verfügung. Dabei werden thematisch nahezu alle Bereiche abgedeckt und verschiedenste qualitative Ansprüche befriedigt. So sind etwa Dateien mit leichter Unterhaltung ebenso abrufbar wie Informationen zu Alltagsfragen bis hin zu hochwissenschaftlichen Themen. Dabei ersetzt das Internet wegen der leichten Verfügbarkeit der Informationen immer mehr andere Medien, wie zum Beispiel Lexika, Zeitschriften oder Fernsehen. Darüber hinaus ermöglicht es den weltweiten Austausch zwischen seinen Nutzern, etwa über E-Mails, Foren, Blogs und soziale Netzwerke. Zudem wird es zunehmend zur Anbahnung und zum Abschluss von Verträgen, zur Abwicklung von Rechtsgeschäften und zur Erfüllung öffentlich-rechtlicher Pflichten genutzt. Der überwiegende Teil der Einwohner Deutschlands bedient sich täglich des Internets. Damit hat es sich zu einem die Lebensgestaltung eines Großteils der Bevölkerung entscheidend mitprägenden Medium entwickelt, dessen Ausfall sich signifikant im Alltag bemerkbar macht."Volltext hier.
Thursday, January 24, 2013
Albrecht Draft Report on the Right to Data Portability: Blurring the Legal Contours?
A much debated element of the EU Personal Data Protection reform package is the proposal to introduce a right to data portability, as put forth in Article 18 of the draft Regulation.
Art. 8(2) of the EU Charter of Fundamental Rights states that” everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.” Pursuant to Article 12 of the currently applicable Data Protection Directive, individuals already have the right to access their personal data, and in particular to obtain from the data controller communication “in an intelligible form of the data undergoing processing,” but the form of the communication is not specified, and the way in which that right can be exercised varies considerably from country to country within the EU, and access has become particularly challenging especially in connection with the online environment.
Pursuant to the proposed Art.18 of the Regulation, data subjects could, first, obtain a copy of their personal data “processed by electronic means and in a structured and commonly used format.” The copy itself must be “an electronic and structured format which is commonly used and allows for further use by the data subject.” Further, individuals would be granted the explicit right to transfer “personal data and any other information provided by the data subject and retained by an automated processing system” into another automated processing system “where the data subject has provided the personal data and the processing is based on consent or on a contract.” The transfer should be “without hindrance by the controller”, and data should be “in an electronic format which is commonly used.”Article 18(3) gives the Commission the power to specify the electronic format and the "technical standards, modalities and procedures for the transmission of personal data.”
Art. 18 should be read against the background of Article 15 of the draft Regulation, that provides for the “general” right of access for the data subject. Article 15 states that the data subject has the right to obtain from the controller communication of the personal data undergoing processing, but the main difference is that Article 18 specifically deals with the condition for reuse of the data, by the data subject herself and/or by another automated processing system.
As seen above, Art. 18(2) introduces the right to export personal data and other information provided by data subject to another service “without hindrance” by the controller. It is not clear, however, if this would involve an affirmative obligation on the controller to transfer data directly to another service, i.e. to provide for some degree of interoperability between electronic processing systems. The data that the individual has the right to trasfer should be in electronic form. As mentioned before, the Regulation would give the Commission the power to specify the electronic format and the further technical requirements for allowing the transmission of personal data.
The contours of the data portability right as foreseen by Article 18 of the draft Regulation are not totally clear, though, in particular because most of the critical “technicalities” (i.e. electronic format and the technical standards, modalities and procedures for the transmission of personal data) are left to later clarifications by the Commission. In this highly sensitive area, however, negative implications on innovation processes should be carefully avoided by abstaining from imposing microregulation on technological solutions to ensure data portability. Moreover, in the rather remote event that the language of Article 18 remains largely unaffected by the various negotiation phases the reform package is currently going through, the effectiveness of the new right will critically depend on the interpretation of rather vague legal concepts like “without hindrance.”
Pursuant to the proposed Art.18 of the Regulation, data subjects could, first, obtain a copy of their personal data “processed by electronic means and in a structured and commonly used format.” The copy itself must be “an electronic and structured format which is commonly used and allows for further use by the data subject.” Further, individuals would be granted the explicit right to transfer “personal data and any other information provided by the data subject and retained by an automated processing system” into another automated processing system “where the data subject has provided the personal data and the processing is based on consent or on a contract.” The transfer should be “without hindrance by the controller”, and data should be “in an electronic format which is commonly used.”Article 18(3) gives the Commission the power to specify the electronic format and the "technical standards, modalities and procedures for the transmission of personal data.”
Art. 18 should be read against the background of Article 15 of the draft Regulation, that provides for the “general” right of access for the data subject. Article 15 states that the data subject has the right to obtain from the controller communication of the personal data undergoing processing, but the main difference is that Article 18 specifically deals with the condition for reuse of the data, by the data subject herself and/or by another automated processing system.
As seen above, Art. 18(2) introduces the right to export personal data and other information provided by data subject to another service “without hindrance” by the controller. It is not clear, however, if this would involve an affirmative obligation on the controller to transfer data directly to another service, i.e. to provide for some degree of interoperability between electronic processing systems. The data that the individual has the right to trasfer should be in electronic form. As mentioned before, the Regulation would give the Commission the power to specify the electronic format and the further technical requirements for allowing the transmission of personal data.
The contours of the data portability right as foreseen by Article 18 of the draft Regulation are not totally clear, though, in particular because most of the critical “technicalities” (i.e. electronic format and the technical standards, modalities and procedures for the transmission of personal data) are left to later clarifications by the Commission. In this highly sensitive area, however, negative implications on innovation processes should be carefully avoided by abstaining from imposing microregulation on technological solutions to ensure data portability. Moreover, in the rather remote event that the language of Article 18 remains largely unaffected by the various negotiation phases the reform package is currently going through, the effectiveness of the new right will critically depend on the interpretation of rather vague legal concepts like “without hindrance.”
Even more uncertainty could be the result of the negotiations surrounding the reform package, though. A good example of this is the amendment proposal put forth by the rapporteur for the European Parliament's Civil Liberties, Justice and Home Affairs Committee (“Albrecht Draft Report"). According to the proposal, Article 18 should be merged with Article 15. The Albrecht draft, however, blurrs the legal contours of the right to export personal data and other information to another service even further, in so far as it foresees that the right should be exercised “where technically feasible and appropriate”. The critical change in the text would appear to be at least partially in line with the amendments suggested by the U.S. Chamber of Commerce, and already contained in the Draft Opinion of the Committee on Industry, Research and Energy for the Committee on Civil Liberties, Justice and Home Affairs.
Wednesday, January 23, 2013
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