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Assessing UK Data Protection Reform in Transnational Context: What New Direction?

This piece by David Erdos produced in October 2021 formed the basis of a submission to the UK Government’s consultation on its Data: A New Direction paper.  It provided an overarching analysis of the proposals which it found to be wide-ranging and significant but generally not radical. The great bulk of the proposed substantive changes to data protection (although not the most far-reaching suggestions concerning either e-privacy or automated decision-making) could be plausibly justified under the restrictions regime set out in the General Data Protection Regulation (GDPR). The reforms to the integrity duties would be deeper and pose some risk of reducing ʻaccountabilityʼ to formalistic theatre even when high risk processing is underway. Nevertheless, in principle their basic structure remains compatible with Data Protection Convention 108+ (DPC+). Proposals to shift the ICO away from a de jure focus on upholding data protection rights are difficult to square even with the DPC+. De facto the ICO is not acting as an effective enforcer of data subject rights even today, but these proposals would entrench and further this troubling reality. It argued that this pointed to a critical problem with the initiative, namely, its lack of balance vis-à-vis the interests of the data subject.  On this basis it put forward an alternative approach marrying more robust and accountable enforcement for individuals with some liberalisation of the substance and process of data protection.

Implementing the GDPR: Shields for Humanities and Social Science Research

In May 2017, David Erdos was involved in drafting a joint Economic and Social Research Council (ESRC) and British Academy submission to the UK Government’s Call for views on the implementation of the EU General Data Protection Regulation 2016/679 (the GDPR) in the UK.  The submission sought to ensure that work in the humanities and social sciences is appropriately recognised when the new framework comes into force in May 2018.  It particularly emphasised that humanities and many forms of social science research fall within the GDPR’s new concept of “academic … expression” and so should benefit, similarly to journalism, from wide-ranging derogations “as necessary to reconcile the right to the protection of personal data with the freedom of expression and information” (Article 85 (2)).  The full submission and a one-page summary are available to read on the British Academy site.

European Intellectual Property Law: What Lies Ahead?

In July 2014, the European Parliament commissioned a study on developments in intellectual property in the last Parliament and issues for the new Parliament. The document 'European Intellectual Property Law: What Lies Ahead?' aims to bring new MEPs up to speed about the state of IP in the EU. The tender was won by a consortium comprising Technopolis (based in Austria) and CIPIL, and the report was co-authored by Lionel Bently and Alfred Radauer. The report was presented to the EP by Alfred Radauer on 23 September 2014. It is available here.

European Copyright Society: Answer to the EC Consultation on the review of the EU copyright rules

This document is available here. The European Copyright Society (ECS) was founded in January 2012 with the aim of creating a platform for critical and independent scholarly thinking on European Copyright Law. Its members are renowned scholars and academics from various countries of the European Union, seeking to promote their views of the overall public interest. The Society is not funded, nor has been instructed by any particular stakeholders. The answer to this consultation has been prepared by : Prof. Lionel Bently (Cambridge University), Prof. Séverine Dusollier (Namur University / CRIDS,), Prof. Christophe Geiger (Center for International Intellectual Property Studies (CEIPI), University of Strasbourg),Prof. Bernt Hugenholtz, (Amsterdam University/ IVIR), Prof. Martin Senftleben (VU University Amsterdam), Prof. Raquel Xalabarder (Universitat Oberta de Catalunya).

Response to the European Commission’s Public Consultation on the review of the EU copyright rules by the European Law Institute Working Group on EU Copyright Law

Following publication of the European Commission’s Public Consultation on the review of the EU copyright rules, members of the ELI Working Group on EU Copyright Law, led by Reto Hilty and Axel Metzger (and including Lionel Bently), with advice of members of the Advisory Committee, have prepared this document as a response to some of the European Commission’s questions. This paper was considered and approved by the ELI Council as an official Statement of the ELI on 28 February 2014.

European Copyright Society: The Reference to the CJEU in Case C-466/12 Svensson

The Reference to the CJEU in Case C-466/12 Svensson records the views of the European Copyright Society on this case.

Gowers Review of Intellectual Property 

The Gowers Review of Intellectual Property, records the findings of a Treasury Committee's wide-ranging review of British intellectual property law. One of the most controversial matters it considered was whether to increase copyright term for sound recordings from its current period of 50 years to either 70 or 95 years. The record industry argued that this would be good for Britain’s balance of trade and good for British performers, as well as good for the industry itself. Faced with complex economic claims, Gowers sought independent advice from CIPIL who produced The Review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings which came out firmly against changing the existing position.

The Report argued that no additional incentive effect could possibly be achieved by offering copyright term extensions to existing works, while such extensions would cause considerable damage to consumer welfare. The Report also indicated that the increased incentive from prospective extension was unlikely to be significant. Arguments that Britain would benefit from such an extension in terms of balance of trade were also problematised. The Gowers Report, issued on December 8th 2006, adopted much of the reasoning, and recommended that the European Commission should retain the existing 50 year term.

A Response to LECG Critique of the CIPIL Review of term extension for sound recordings (Gowers Review on Intellectual Property)

In December 2006 the Centre for Intellectual Property and Information Law at the University of Cambridge published a Review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings reviewing the evidence relating to a term extension for sound recordings. The report was itself commissioned by the Gowers Review on Intellectual Property which was set up in December 2005 by the Chancellor of Exchequer to conduct "an independent review into the UK Intellectual Property Framework".

Among other matters, the Gowers Review gave detailed consideration to the question of whether a term extension for sound recordings was merited, and it was this which motivated their commissioning of the CIPIL report. Based on the report, and the other evidence available, the Gowers Review recommended strongly against any term extension.

Several months ago, due to the comments of music industry representatives in public fora, members of CIPIL became aware that a critique of their work had been circulating. It appeared this critique had been commissioned from the LECG consultancy by the BPI (British Phonographic Industry). Unfortunately the BPI have refused to make the LECG report publicly available. However, we have been given a copy from another source and it is on this that the response is based. The response can be read here. (published October 2008).

Models of Public Sector Information Provision via Trading Funds

Models of Public Sector Information Provision via Trading Funds analyzes the impact of adopting different models for the provision of public sector information by trading funds. The study examines the cost and benefits for society, and the effects on government revenue, of four different charging policies: profit-maximization, average cost (cost-recovery), marginal cost and zero cost; both on their own and when interacted with various data distinctions such as raw versus value-added, and unrefined versus refined.

Enforcement of Intellectual Property Rights in the UK: A Literature

The UK's Strategic Advisory Board on intellectual Property has commissioned a literature review from CIPIL. This will be undertaken by Kimberlee Weatherall (University of Queensland) with Lionel Bently and Beth Webster (University of Melbourne)

The Impact of Technological Measures on Access to Exceptions: An Empirical Assessment

Patricia Akester (PhD) was awarded a Leverhulme Early Career Research Fellowship (in association with matched funding from Emmanuel College, University of Cambridge) to undertake a project looking at the impact of technological measures on the ability of users to take advantage of the statutory exceptions to copyright. When technological measures were under consideration in the mid 1990s two stark scenarios presented themselves: on the one hand, an ideal world where copyright owners could use DRM to make their works available under a host of different conditions in a way that responded to the diversity of consumer demand; on the other, a more bleak environment where all users of copyright material (and much non-copyright material) would be forced to obtain permission and pay to access material that previously would have been available to all. In the face of these two extreme visions, the European legislature developed a compromise position, embodied notoriously in Article 6(4) of the Information Society Directive. The legislature appeared to be hoping that rightholders would voluntarily make material within certain specified exceptions available to users. Patricia Akester examines how these issues are working out in practice. Based on a series of interviews with key organisations and individuals, involved in the use of copyright material and the development and deployment of DRM, she provides a sober assessment of the current state of affairs. Her report is now available here.