Finding the flaws in copyright when confronted with neuro-technologies and brain data
How neuro-technologies and the protection of brain data change the basic conceptions found in copyright by shaking the structure of the idea-expression dichotomy in both Dutch and European Union law
LL.M Law and Technology Tilburg Law School Tilburg Institute for Law, Technology, and Society Tilburg University 2018
Student: Supervisors: Radha M. Pull ter Gunne Mr. Ir. Maurice H.M. Schellekens ANR: 776988 and SNR: 1256360 Dr. Sabrina Röttiger-Wirtz Table of Contents
Finding the flaws in copyright when confronted with neuro-technologies and brain data .... 1
List of Abbreviations and Acronyms ...... 5
Chapter One ...... 6 Introducing the EEG, its brain data and copyright ...... 6 1.1 Introduction ...... 6 1.2 The aim of the research ...... 9 1.3 Scope ...... 10 1.4 Research questions ...... 14 1.5 Significance ...... 14 1.6 Methodology ...... 17 1.7 Outline ...... 18
Chapter Two ...... 19 The Technology: EEG and Brain Data ...... 19 2.1 Introduction ...... 19 2.2 The electroencephalograph (EEG) ...... 19 2.2.1 Brain-Computer Interface ...... 20 2.2.2 Brain conversion ...... 21 2.3 The types of brain data ...... 22 2.3.1 Brainwaves ...... 23 2.3.2 Raw brain data ...... 23 2.3.3 Inferences on raw brain data ...... 24 2.4 The state-of-the-art technology and its developments from past to future ...... 26 2.5 Conclusion ...... 28
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Chapter Three ...... 29 The Law: Copyright and the Idea/Expression Dichotomy ...... 29 3.1 Introduction ...... 29 3.2 The basic assumptions underlying this research ...... 29 3.3 Rationales of copyright ...... 30 3.3.1 The benefits of copyright protection for brain data...... 31 3.3.2 The drawbacks of copyright protection for brain data ...... 32 3.4 Copyright ...... 34 3.4.1 The Netherlands ...... 34 3.4.2 The European Union ...... 36 3.5 Conclusion ...... 38
Chapter Four ...... 40 The Application: Copyright Meets Brain Data ...... 40 4.1 Introduction ...... 40 4.2 Brainwaves ...... 40 4.3 Raw brain data and copyright ...... 41 4.3.1 Memory and Imagination ...... 41 4.3.2 Visual perception...... 45 4.4 Inferences on raw brain data and copyright ...... 46 4.4.1 Memory and Imagination ...... 46 4.4.2 Visual perception...... 50 4.5 Problems encountered ...... 52 4.6 Conclusion ...... 53
Chapter Five ...... 55 Conclusions ...... 55 5.1 Conclusion ...... 55 5.2 Critics and Limitations ...... 57 5.3 Recommendation ...... 58
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Appendices ...... 59
Bibliography ...... 60 Books and Articles ...... 60 Tables of Legislation ...... 65 Table of legislation – The European Union ...... 65 Table of legislation – The Netherlands ...... 65 Tables of Cases ...... 66 Table of Cases – Court of Justice of the European Union ...... 66 Table of Cases – Dutch Supreme Court (Hoge Raad) ...... 66 Table of Cases – Lower Dutch Courts ...... 66 Opinion of the Advocate General CJEU ...... 67 Websites ...... 67 Miscellaneous ...... 67
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List of Abbreviations and Acronyms
BCI Brain-Computer Interface
CJEU Court of Justice of the European Union
DCA Dutch Copyright Act
EEG Electroencephalograph
EU The European Union
fMRI Functional Magnetic Resonance Imaging
GDPR General Data Protection Regulation
Ibid. ibidem
US The United States
WIPO World Intellectual Property Organization
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Chapter One
Introducing the EEG, its brain data and copyright
1.1 Introduction
“May the Force be with you”. A phrase known by both Star Wars fans and individuals who have never seen the movies. The Force, an important element of the Star Wars movies, enhances natural, physical and mental abilities and can equip the movie-character with the ability of telekinesis. Telekinesis is a neural ability that most Force-sensitives have to manipulate physical matter and touch, hold or otherwise move a target. One can imagine what it means, using the Force to will objects into the direction the person bearing the Force seeks. The ability to move objects without touching them, may seem like fantasy, but the EEGSmart Touch is making it already a reality. In a promotional video on YouTube, people are shown using an electroencephalography [EEG] headset to move toy-cars and turn off lights using their mind.1,2 Other applications by manufacturers of consumer use EEGs are videogames controlled by the EEG,3 a personal meditation assistant, a personalized song selection based on an individual’s mood recognized by the EEG,4 and headsets to provide better learning abilities for students.5 These new developments in using EEGs seems to open up a new age of consumer wearable technologies.
However, the EEG is not the only brain-reading technology. A functional Magnetic resonance imaging [fMRI] is an apparatus that maps the activity in the brain. At the University of Berkeley, a fMRI was used on a subject watching a film trailer to reconstruct images from that trailer based on the subject’s brain data. 6 This is a ground breaking
* This research includes non-English articles which have been translated by the author, unless otherwise stated. 1 EEGSMART 2015, EEGSmart Touch: An amazing mind-control device, published on 2 November 2015, available at: https://www.youtube.com/watch?v=DqeVNt5kK98, accessed 17 May 2018. 2 Using merely the mind is in contrast to for instance using hands or voice. 3 An EEG gaming headset developed by NeuroSky, more information on: http://neurosky.com/, accessed 16 May 2018. 4 MUSE, the brain sensing headband, more information on: http://www.choosemuse.com/, accessed 16 May 2018. 5 The company BrainCo provides students a Brain-Computer Interface to provide neurofeedback in order for a student to improve their cognitive psychology, such as their concentration, more information on: https://www.brainco.tech/, accessed 30 June 2018. 6 Shinji Nishimoto and others, ‘Reconstructing Visual Experiences from Brain Activity Evoked by Natural Movies’ (2011) 21 Current Biology 1641 accessed 19 April 2018.
6 development in the area of brain reading.7
These brain-reading technologies have developed further and in 2017 and 2018, new research articles were published where a portable, consumer wearable EEG was used to convert brain data into text8 and where an EEG was used for image reconstruction.9 These developments show that brain-reading technologies are no longer a question of “if”, but can better be restructured into a “when”. The use of brain-reading technologies will continue to develop and have the potential to translate the information captured in the brain. Due to these developments, this research focuses only on the EEG because of its possible development as a brain-reading apparatus for consumer use.10
An EEG measures changes in the electric field in different brain regions through electrodes attached to the scalp.11 The brainwaves recorded by the EEG are ‘translated’ into raw brain data. These raw brain data are the first type of brain data that can be distinguished while utilizing an EEG. The brainwaves recorded by the EEG are the starting point of brain- computer interfaces [BCIs]. The raw brain data received from the EEG often cannot be read directly without a high degree of knowledge regarding brain activity. With this knowledge, inferences on the content of the raw brain data of an individual can be made by for instance a researcher. These inferences are currently often made automatically by computer programs.12
The categorization of the types of brain data, namely raw brain data and inferences on raw brain data, make out a section of the first part of this research. To get to these two types of brain data, brainwaves are essential and are the starting point for every research using the
7 Brain-reading is not the same as mind-reading. See for more information: Francis X Shen, ‘Neuroscience, Mental Privacy, and The Law’ (2013) 36 Harvard Journal of Law and Public Policy 653, 671–673 as is further elaborated in Paragraph 1.3 (Scope). 8 Xiang Zhang and others, ‘Converting Your Thoughts to Texts: Enabling Brain Typing via Deep Feature Learning of EEG Signals’ [2017] ResearchGate 1
7 brain and an EEG. This technological explanation is salient in order to get to the second step, the legal framework. There are multiple legal angles from which brain data can be approached such as data protection law13, tort law14, criminal law15 and consumer law16. These discussions have been covered in the current literature, some more extensively than others. However, these discussions do not cover the content of brain data and the creative and economic value that can be found in it.
Seeking to protect the economic value in data is not a new phenomenon. Current societal changes, where a shift can be recognized from a raw material economy, such as oil, to a data driven economy shows that society is moving into a future where data are the primary source of money and potentially even power.17 The world’s economy that has developed over the years is focused on collecting data and providing services based on these data, such as targeted advertisements. These consumer wearable EEGs will provide a new type of data that can be collected by companies, where these companies can for instance make use of the already existing concept of the smartphone brain scanner.18 An example of a company aiming to have the biggest brainwave database is BrainCo, which provides neuro-headsets to 1.2 million students.19
The newest developments in brain-reading technologies show a trend where more and more information can be translated, sometimes in real-time, from the brain to another form, such as text, photos or films. However, the content captured by these brain-reading devices will not just be in the hands of the consumers using these applications but will also be collected and stored by companies, using technologies such as data mining or data analytics to create commercial value for their businesses. The idea that these companies could be able to control what happens to the data of people who created these data seems unjust, especially since
13 For instance, Dara Hallinan and others, ‘Neurodata and Neuroprivacy: Data Protection Outdated?’ (2004) 12 Surveillance & Society 55
8 people are often unaware of the fact that their data are saved and used by others.
That society is opposed to the ungoverned collection of data by companies can be based on the existing data protection framework focused on protecting the personal data of individuals whose data are collected and stored by companies. This framework aims to provide more power to individuals over their personal data.20 However, the data captured not only has commercial value for companies, it also has commercial value for the individuals as this content can be creative or in some other way used by the individuals. For instance, an individual using a brain-to-text transcribing device may be writing the next Harry Potter21 novel series without knowing it, but is at the same time sharing the ideas with companies looking for value in the individual’s data. Current data protection law contains no concept of ownership in data and no intellectual property rights exist for data created by an individual.22 Therefore, the proposal in this research is that brain data has commercial value for the individual and that these data should be protected under Dutch and European Union [EU] copyright laws.
1.2 The aim of the research
The aim of this research is to show the constant development in brain-reading technologies and how it can and most probably will change our current regulatory system, both in the Netherlands and on an EU level. To achieve this aim, a basic understanding of brain data is necessary. Therefore, this research first provides an overview of the current state of neuro- technologies and of the various types of brain data that can be extracted from an EEG that are related to the consumer use of an EEG.
Furthermore, this research seeks to provide an understanding in the connection brain data and copyright laws, to open up a new field of research. This research explores the combination of copyright and brain data and re-states and criticizes certain developed assumptions of copyright law analyzed in this research. This is achieved by applying the characteristics of brain data to the current framework of copyright laws in the Netherlands
20 Council Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L119/1. 21 The Harry Potter series written by J.K. Rowling. 22 There do not exist intellectual property rights that protect the creation of data as decided by the CJEU in C- 203/02 The British Horseracing Board and Others [2004], I-10415, paras 31-33 and further explained in Michal Koščík and Matěj Myška, ‘Database Authorship and Ownership of Sui Generis Database Rights in Data-Driven Research’ (2017) 31 International Review of Law, Computers and Technology 43, 52. This is restated and connected to personal data in Lokke Moerel, ‘Big Data Protection: How to Make the Draft EU Regulation on Data Protection Future Proof’ (2014) 1 22–24
9 and the EU. This research provides a first step in filling the gap between neuro-technologies and copyright law.
Lastly, by exploring the protection of copyright for brain data, the boundaries of protection are found and may even be crossed. This research thus aims to identify the boundaries of copyright protection for brain data and how they can be crossed by analyzing copyright protection.
This research does not discuss the ethical aspects of this topic. It focuses on the technical and legal elements. The discussion on the rationales of copyright may contain some ethical arguments, but they are still related to the legal framework.
1.3 Scope
Definitions
This research uses a term whose meaning can vary by context, which is ‘brain data’. Brain data is an overarching term used to mean two types of data that are relevant when using an EEG: raw brain data and inferences on raw brain data. These types of brain data are explained in the following chapter.
Additionally, the literature covering brain data and information often distinguishes between the mind and brain, using a dualistic point of view. However, as this research is mainly focused on the content of brain data, namely the work that could be protected, whether it is produced by the brain or mind is unimportant. Therefore, this research takes a monistic point of view, where the mind and brain are seen as one.23
Lastly, the words ‘author’ and ‘creator’ are used interchangeably in this research.
Focus on EEG
This research focuses solely on the EEG because of its potential wide utilization as one of the more popular instruments for consumers. The EEG is portable, the costs are low, and it is relatively easy to use.24 These characteristics are already found in the multiple consumer
23 Shen (n 7). Furthermore, as this research does not use a dualistic point of view, the computational theory of mind (CToM) is not of importance and therefore not covered nor evaluated. For more information on CToM, see: Steven Pinker, How the Mind Works (1st edn, Penguin Books 1998) 25. 24 Hallinan and others (n 13).
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EEG headsets available today.25 By focusing on a technology that has strong potential for wide consumer use, this research not only provides a theoretical discussion, but also contributes to the practical side of law. However, these brain data received from the EEG can in principle be compared to brain data received from other neuro-technologies, such as an fMRI. The potential framework proposed in this research is thus not limited to brain data received from an EEG.
Brain-computer interface interpretation
The second type of brain data, the inferences on raw brain data, can be created by a researcher or a computer. In this research, the inferences assessed are created by a BCI, not by a researcher. This means this research does not cover any creative input from a third party, only the work created by the subject wearing the EEG is analyzed.
Development of technology
The development of these brain-reading technologies is advancing at an immense pace. Currently, the technology is not developed enough to accurately depict what is created in the brain on a screen. However, this might be achieved in the near future. To contribute to the literature of today and the policy discussion of tomorrow, the technology discussed in this research is further advanced in its abilities to understand the workings of the brain. This means that this research considers a scenario where the technology can accurately and reliably depict what is captured in the brain, so real commercial value can be created in brain data.
Choice of framework
The legal framework used for this research is copyright. Copyright is important because it protects creative work. Copyright protection grants a creator an exclusive right, which is quite a far reaching and powerful right. This right would allow individuals to remain in control of their brain data. Therefore, this framework was investigated to determine whether it can provide protection for consumers using neuro-headsets. The mere analysis of copyright in this research does not mean to convey the idea that copyright is the only framework that could be used to protect brain data.
Dutch law was included to determine whether an old system from 1912, as the one found in
25 These headsets are for instance those of MUSE (http://www.choosemuse.com/), Emotiv (https://www.emotiv.com/) and Neurosky (http://neurosky.com/).
11 the Netherlands, is open for new technologies. The copyright law framework of the EU can be considered ‘newer’ than the Dutch system and was, therefore, included to serve as a comparison to Dutch law. The EU framework is also included to understand what the EU legislator and the Court of Justice of the European Union [CJEU] imagine the scope of copyright to be.
In Dutch copyright law another right recognized is portrait right. However, the portrait right framework is intentionally left out of this analysis. Portrait rights allow a person depicted in a portrait to oppose its exploitation.26 The exclusion is first based on portrait rights’ awkward place in the Dutch Copyright Act.27 Critics state that portrait rights do not belong in copyright law, as they are not an intellectual property right but merely a species of tort law.28 The second reason for exclusion is the weak connection between the protection of brain data and the commercial value in portrait rights based on “exploitable popularity”.29 A famous person can commercially exploit their popularity and can negotiate monetary rewards for the use of their portrait.30 Here a commercial value is acknowledged that can prohibit copyright holders from using the portrait. The acknowledgement of the commercial value could serve as a link to the commercial value in brain data. However, this link is too weak and the protection of a famous person is limited to their portrait, as it is essential that there is a depiction. A description of a portrait is not protected, even if it is recognizable.31 The source of brain data is not as instantly recognizable as a portrait of a person is. Using a legal framework that is focused on such a clear relation between the person depicted and its commercial value does not work for brain data. Therefore, using portrait rights to create a possible framework for protection of brain data does not provide a clear option and thus falls outside the scope of this research.
Choice of jurisdiction
This research discusses Dutch and EU law. The EU has begun harmonizing many areas of
26 Ian Blackshaw and Robert Siekmann, Sports Image Rights in Europe (1st edn, TMC Asser Press 2005) 17. 27 In the Netherlands, portrait rights are codified in the Dutch Copyright Act of 1912, in articles 19-21, 25 and 35a. 28 Willem Oppenoorth, ‘Een Lastig Portret’ (1986) 5 Intellectuele Eigendom & Reclamerecht 84, 84–88; Otto Volgenant, ‘Portretrecht En Het TRIP’s-Verdrag’ (2017) VII.8.2.7. Groene Serie Onrechtmatige Daad 1, 1. Additionally, suggestions are for instance made that portrait rights should be part of trademark law, as is explained in Gerard Mom, ‘Portretmerken’ (1998) 5 Intellectuele Eigendom & Reclamerecht 169. 29 In Dutch it is referred to as ‘verzilverbare populariteit. 30 Corinna Coorts, ‘Harmonisation and Diversity -Trends and Challenges in European Sports Image Rights Law’ [2016] SSRN Electronic Journal 12, 12
12 national copyright law. One of these national systems is the Netherlands. The current Dutch Copyright Act32 was enacted in 1912 but has been updated multiple times in accordance with regulations and directives from the EU. However, new types of technologies are becoming part of the current technological landscape. Therefore, the question is whether the current Dutch copyright system, which is to a large extent harmonized, can deal with these new disruptive technologies. Additionally, as the EU legislator will keep influencing the Dutch system, another question is whether the EU legislator has recognized this changing landscape.
Perspective
The use of data is only regulated to a certain extent. When data becomes personal data, the General Data Protection Regulation [GDPR]33 applies and protects individuals against the misuse of their data. In contrast, non-personal data are only protected by the limited protection of a database right. 34 When data becomes original information, copyright protection can apply.
This system worked well before brain-reading technologies existed on the level they do now. However, technologies are changing and if society is not careful, the entities controlling the technologies will receive even more power than they already have. Consumers need to be able to maintain power over what is theirs, in this case their brain data, and be provided with the tools to do so. In the past, ideas could only be expressed through the ‘labor of creation’ by the individual. With the use of neuro-technologies, this is changing, but this does not mean consumers should lose the power over their ideas.
Additionally, often intellectual property rights are merely held by big corporations, for instance, as patents. This can lead to an imbalance between powerful corporations and potentially weak individual infringers. Another such imbalance is between consumers and corporations and led to the creation of consumer protection laws. However, it may be desirable that these laws are extended to also include the data that is registered from individuals, when using these brain-reading technologies. Current data protection laws are not strong enough to protect people’s data, but nevertheless necessary with the development of these technologies. Consumers need to be able to stay in control of their data. However, to create a legal landscape that is developed fully and in which users of brain-reading
32 Auteurswet, 23 September 1912, stb, 1912. 33 Council Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L119/1. 34 Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases [1996] OJ L77/2: A database right is divided into two types of protection, copyright protection and the sui generis protection that requires a substantial investment. For more information, please refer to n177.
13 technologies are sufficiently protected, the current copyright laws should be extended to cover these types of users. The question is, however, whether this is possible.
1.4 Research questions
In this research, the central question is: “How do the current legal assumptions in Dutch and EU copyright law cause friction when applied to the protection of the types of brain data?” To answer this question, three sub-questions were formulated.
First, to understand what brain data are and what different types exist, the first sub-question is: “What is the current application of the EEG and what types of brain data can be extracted with the use of this technology?”
The second sub-question focuses on how the law is related to these types of brain data: “How could Dutch and EU copyright law provide potential protection for the types of brain data?”
The third sub-question focusses on the practical analysis of the protection of brain data by copyright and its consequential problems: “Which problems arise when the types of brain data are analyzed within the current Dutch and EU copyright law framework”?
1.5 Significance
Scientific significance
The present literature on the combination of brain data and copyright is limited. One article was found based on U.S. law regarding a neuro-technology and the possible copyright protection for moving images produced by these technologies.35 No articles under Dutch nor EU law were found regarding brain data and copyright. The lack of articles that combine neuro-technology and copyright law is understandable, as these technologies are not developed enough to accurately depict what goes on in the brain on a screen. However, the myriad of technological developments for commercial use of an EEG are astonishing and can and should not be underestimated. Thus, this research seeks to create the possibility for interested audiences to be immerged in a field of law at the beginning of its further, immense, development.
35 Theo Austin Bruton, ‘Mind-Movies: Original Authorship as Applied to Works from Mind-Reading Neurotechnology’ (2014) 1 HeinOnline 263
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The current literature focuses either on copyright or neuro-technologies. For instance, articles on copyright describe its history,36 what the current system ought to or does look like37 and the developments in case law.38 Additionally, many articles discuss research conducted with an EEG. For instance, researchers, found that people experience different visual illusions regarding the size of an object, depending on the size of certain parts in the brain.39 Other studies show that paying attention to a particular stimulus can change multiple sensory perceptions, such as the color.40 Others write about their breakthrough in brain-reading, such as creating moving images on the basis of brain data.41 Thus, research on neuro-technology and copyright does exist. These two fields of research merely need to be combined to ensure that the current concepts of law do not fall behind the development of this technology.
That brain data and other fields of law are not a foreign combination is clear from using the search term ‘neuro-technologies and law’. The most popular subject in the literature on brain data and law is mainly pertaining the usage of neuroscience in criminal law. Most studies found on brain data and law are concentrated on how brain data could be used in the criminal law system,42 for instance, as evidence in the courtroom.43 Other studies are related to the
36 Margaret Ann Wilkinson and Natasha Gerolami, ‘The Author as Agent of Information Policy: The Relationship between Economic and Moral Rights in Copyright’ (2009) 26 Government Information Quarterly 321. 37 Annette Kur and Thomas Dreier, European Intellectual Property Law. Text, Cases and Materials (1st edn, Edward Elgar 2013); C Gielen and ACM Alkema, Kort Begrip van Het Intellectuele Eigendomsrecht (11th edn, Wolters Kluwer 2016); Paul Geerts, Bescherming van de Intellectuele Eigendom (1st edn, Wolters Kluwer 2017). 38 Thomas Margoni, ‘The Harmonisation of EU Copyright Law: The Originality Standard’ [2016] SSRN
15 ethical side of using brain data in the criminal system.44 Some additional studies focused on brain data and privacy.45 These studies are based on the assumption that brain data carries personal characteristics that need to be covered by the current privacy and data protection laws. However, no studies on brain data and Dutch or EU copyright law were found.
Societal significance
Technological development is hard to predict. The past shows that technologies often develop differently than once thought. This is mainly because as society shapes the technology, technology also shapes society. 46 For example, who would have imagined the current ubiquitous use of the smartphone when cellular phones were first developed? The development of brain-reading technologies could be similarly unpredictable. Nevertheless, to start the discussion certain assumption on the development are made so the law can be tested.
To ensure that the application of laws regulating such technology are in line with societal norms and values, some initial steps need to be taken to assess the function of brain-reading technologies in our current society. David Collingridge (1980) realized that once a technology is entrenched in society it becomes increasingly difficult to regulate, but when one regulates a technology from the start, it may hinder its development. 47 This is known as the Collingridge dilemma.48 Therefore, there seems to only be a short window of time where a regulation can be truly beneficial. However, in order to recognize when this widow appears, one needs to first start to understand the historical and current development of the technology and its effect on the economy.
Due to the developments of the economy towards an emphasis on data, it is important to create a safe haven for individuals. Individuals need to be granted tools to protect their own data and to be assured that their data cannot be misused. The possible creation of databases
44 Gerben Meynen, ‘Neurolaw: Neuroscience, Ethics, and Law. Review Essay’ (2014) 17 Ethical Theory Moral Practice 819. 45 Hallinan and others (n 13); Andrew Mandell and others, ‘Are Your Thoughts Your Own?: " Neuroprivacy " and the Legal Implications of Brain Imaging The Committee on Science and Law’, vol 1 (2005). 46 This discussion is also known as the debate between technology determinism and technology constructionism as mentioned in Scott Cotgrave, ‘Technology, Rationality and Domination’ (1975) 5 Social Studies of Science 78. 47 David Collingridge, The Social Control of Technology (1st edn, Pinter Publishers 1980). The quote that is being referred to is: ‘Regulators having to regulate emerging technologies face a double-bind problem: the effects of new technology cannot be easily predicted until the technology is extensively deployed. Yet once deployed they become entrenched and are then difficult to change.’ 48 Wolfgang Liebert and Jan C Schmidt, ‘Collingridge’s Dilemma and Technoscience: An Attempt to Provide a Clarification from the Perspective of the Philosophy of Science’ (2010) 7 Poiesis Prax 55.
16 full of brain data of individuals should be avoided as individuals lose the power over the data that is so close to them and contains value for them. This is partly achieved by the GDPR, but more assurance is needed based on the developments of brain-reading technologies and the somewhat limited reach of the GDPR. The economic value in the content of individuals’ brain data must also be protected.
1.6 Methodology
This research is a desk-study that focuses on EU and Dutch copyright law. The current system in both the EU and Dutch copyright law are addressed and assessed individually and in comparison to each other.49 Furthermore, this research uses the article by Theo Austin Bruton on the comparison of U.S. copyright law and brain data created by an fMRI as a starting point because an interesting analysis of U.S. copyright protection and brain data was stated there. As mentioned before, no research has been conducted on copyright laws and brain data in the EU or the Netherlands.50 Therefore, articles relating to these subjects separately were used, but none immediately contribute to the discussion of protecting brain data and copyright.
The literature on neuroscience contributes to understanding how neuro-technology can extract information from the brain. An understanding of the key concepts of the function of the brain and the EEG is required to comprehend the information that can be extracted. Articles on EU and Dutch copyright law provide the legal framework in which the information about brain data can be analyzed.
Supporting articles for this research were retrieved from the academic databases available at Tilburg University: HeinOnline, Legal Intelligence, Kluwer Navigator, SSRN and Google Scholar. WorldCat was used for searching books online and in the Tilburg Library and for additional articles that could not be found elsewhere. As this research combines two fields of research, the keywords for the second chapter differ from those for the third and fourth chapter. The keyword used in chapter 2 on the development of the EEG and the types of brain data were ´EEG and data’, ‘brain data’, and synonyms. For chapter three and four which focus on the analyses of the law and the types of brain data, the keywords were ‘copyright and brain data’, ‘brain data and law’, ‘originality copyright law CJEU’, ‘auteursrecht vereisten’51, ‘idea/expression dichotomy and synonyms.
49 This is a positivistic analysis. 50 This was stated in 1.5 under scientific significance. 51 This is Dutch for: ‘Copyright criteria’.
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1.7 Outline
Chapter 2 introduces the technological framework necessary to comprehend the legal analysis in the following chapters. This chapter outlines the EEG, its application, and its essential functionality for BCIs. Additionally, the main scientific studies that are the basis for this research are explained. These studies refer to brain data that are received through BCI application, which are explained in this chapter as well. Further, the two types of brain data that can be distinguished when a consumer uses an EEG are described. This information helps answer the first sub-question.
Chapter 3 focuses on the introduction to the theoretical legal analysis of this thesis. It provides the link between brain data and copyright laws by stating the assumptions and exploring the rationales behind copyright law. This chapter also introduces an important principle in copyright: the idea/expression dichotomy and Dutch and EU copyright law. This information helps answer the second sub-question.
Chapter 4 focuses on the application of copyright law to brain data by providing a practical analysis of the protection of brain data by copyright. Additionally, a problem arises due to fact that the idea/expression dichotomy was a concept that works now but faces problems when confronted with neuro-technologies. This information helps answer the third sub- question.
Chapter 5 answers the central research question. The chapter also discusses the results and the limitations and provides recommendations for future research.
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Chapter Two
The Technology: EEG and Brain Data
2.1 Introduction
This chapter provides a basic understanding of the EEG and brain data. As the understanding of the technological framework is essential before one can comprehend the reason why only certain aspects of the legal framework are discussed, this chapter provides a primer on brain reading technologies and brain data from a consumer use perspective. This is of importance to answer the first sub-question posed in this research: “What is the current application of the EEG and what types of brain data can be extracted with the use of this technology?”
This technological framework focusses on the EEG and brain data. This means the EEG is firstly explained in Paragraph 2.2. The EEG is, furthermore, one of the instruments that can be used for BCI. In order to place this research in the existing literature, a brief explanation of BCIs and their relation to EEGs and future technologies follows in Paragraph 2.2.1. In Paragraph 2.2.2 a couple of examples are provided regarding brain-to-text and brain-to- image studies and technologies. For these technologies brain data are used and different kinds can be distinguished. Therefore, Paragraph 2.3 explains the different types of brain signals and data that can be distinguished and used throughout this research, namely brainwaves (Paragraph 2.3.1), raw brain data (Paragraph 2.3.2) and inferences on raw brain data (Paragraph 2.3.3). Additionally, as this research focusses on technology, an outline is drawn of the current state-of-the-art and its development over the years in Paragraph 2.4, based on the information provided in Paragraph 2.2. The last paragraph, Paragraph 2.5 concludes and answers the first sub-question.
2.2 The electroencephalograph (EEG)
In order to receive copyright protection, creativity and originality are essential elements. The creativity captured in brain signals needs to be extracted and converted by an instrument. The instrument that is able to do this and that inhibits a central position in this research is the EEG. An EEG can register the activity in the brain. In electroencephalography, ‘electro’ refers to electricity, ‘encephalo’ to the brain and ‘graph’ refers to a display and measurement.52 As the name indicates, an EEG measures electric currents created by the millions of neurons in the human brain. Neurons signal each other through nerves, which
52 Owen Jones, Jeffrey Schall and Francis Shen, Law and Neuroscience (1st edn, Wolters Kluwer 2014) 227.
19 send and receive rapid on-off electric signals when polarized.53 The electric current in the brain is created when charged particles move in a closed path (circuit) and the amount of current depends on the electric potential. Millions of neurons together create an electric field of sufficient strength to be measured by electrodes placed on the head. This electric field is a randomly fluctuating electric potential, also called a ‘brainwave’, which can be measured by the EEG.54 The EEG detects rhythmic fluctuations of electric signals produced by the brain that fluctuate between peaks and troughs. The interval between Figure 1 – An example consecutive peaks and troughs and the amplitude from the peaks to of raw brain data the troughs creates the recognizable patterns, as shown in Figure 1.55
2.2.1 Brain-Computer Interface
To process information and create brain data from the brainwaves, the EEG is insufficient. It needs to be connected to a computer that can run advanced computer programs, including machine learning and deep neural networks. The combination of a brain reading device and a computer is called a BCI. The BCI enables communication between the brain and a technological device.56 The BCI can acquire, analyze and translate brain signals into output commands in real-time.57
The first demonstration of a BCI in humans occurred in 1964, when EEG signals were used to control a slide projector.58 Since then, impressive advances in neuroscience, computer technology and machine learning have enabled the development of a wide variety of BCI systems.59 Many BCI systems use an EEG to read information from the brain, as it is non-
53 ibid 203. 54 ibid 227. 55 ibid 228. 56 Prasant Kumar Pattnaik and Jay Sarraf, ‘Brain Computer Interface Issues on Hand Movement’ (2018) 30 Journal of King Saud University - Computer and Information Sciences 20
20 invasive.60 This means an operation is not required to apply the electrodes to the brain, which would have been necessary with, for instance, an electrocorticogram.61 The EEG can just be placed on top of the scalp.
Due to its non-invasive character, there are many applications for a BCI using an EEG, such as communication and control, medical use, neuro-physical regulation and rehabilitation, training and education, games and entertainment, and authentication and security.62 At first, BCIs were developed for medical use, to aid people who, for instance, lost motor abilities of certain limbs. However, consumer application is growing, as can be seen from the development of portable consumer EEGs, for instance, for video games. 63 These developments are getting closer and closer to more advanced and general consumer applications, for instance, brain-to-text conversions. Many recent studies show the newest developments in the use of BCIs and brain reading. An explanation of the techniques brain- to-text and brain-to-image is given in the following paragraph.
2.2.2 Brain conversion
In September 2017 and January 2018, two articles were published on the newest developments on EEG technologies and their use to convert brain signals into text or images. This paragraph explains the development of the technology, where thoughts are converted to text64 and then where EEG signals were used for image reconstruction.65 These two studies are then compared to show an essential difference between them that is salient for the rest of this research and legal analysis.
In the first study, a brain typing system was constructed by enhancing the accuracy of the decoding of EEG signals originating from the brain.66 This accuracy was reached by a high EEG classification implemented in the researchers’ proposed machine learning approach, using neural networks.67 These researchers found that this technology can be implemented in the real world and can interpret a user’s thoughts. The deep learning system could convert the user’s thoughts to typing commands and text. The main use the authors of this article had
60 Ramaswamy Palaniappan, ‘Electroencephalogram-Based Brain–Computer Interface: An Introduction’ in Castet J Miranda E. (ed), Guide to Brain-Computer Music Interfacing - 2014 (1st edn, Springer 2014) 30. 61 ibid. 62 Pattnaik and Sarraf (n 56) 20. 63 These are the headsets from Emotiv, Muse and Neurosky as mentioned in Chapter 1. 64 As was done in the article by Zhang and others (n 8). 65 As was done in the article by Nemrodov and others (n 9). 66 Zhang and others (n 8) 1. 67 ibid 8.
21 in mind for this system was to help speech and motor disabled people communicate with the outside world.68 However, this system could also be implemented in consumer EEG products.
In the second study, the researchers used EEG signals to create a pattern analysis and image reconstruction. This was achieved by showing the test-subjects photos of faces. Even though the main aim of this article was to outline and understand the neural dynamics of facial identity processing with its representational basis,69 the outcome of the tests show what these technologies can achieve. The study shows that it is already possible to reconstruct images through brain signals by merely using an EEG and as stated in the article, ‘provides proof of principle for EEG-based image reconstruction’.70
These two articles demonstrate the current state-of-the-art concerning the use of an EEG and converting its signals directly into understandable end-user applications. However, there is a big difference in what these two EEG systems measure. In the text conversion, actual thoughts were used to create the output. In the image reconstruction, the brainwaves converted were signals received from the eyes, which passed through the brain and were recorded by the EEG. The source of the outcome of these two EEG uses are thus significantly different. One is created from imagination or memory and the other is based on visual experiences.71 This difference is important for the analysis of copyright protection, as an original character of a work is required, and is compared and used as a guideline in the following chapters. But first, to compare these two sources for EEG signals, a basic understanding of the types of brain data that can be distinguished using an EEG is needed.
2.3 The types of brain data
The technologies described above use brain data to construct texts and images. However, ‘brain data’ is an overarching term. Therefore, this paragraph defines and clarifies what falls and does not fall under brain data. Furthermore, while reading each following sub-paragraph, it is of importance to realize that a difference between data and information must be understood. Data are a building block to create information and data that is put in context and has a certain meaning may be called information. Therefore, the context and use provide
68 ibid 1. 69 Nemrodov and others (n 9) 1. 70 ibid 15. 71 Similarly, Austin Bruton (n 35) 277–286 refers to Unique Visual Experiences and Unique Mental Experiences. However, this research uses the concept differently as Bruton uses these two concepts as the solution, providing for the opportunity to protect Mind-Movies by copyright. This research merely uses these concepts to show the difference between the technologies that have developed most recently. Due to the significant difference in the way the brainwaves are created, a divergence in the analysis for copyright protection is required.
22 meaning to the data.72 However, this research uses the term brain data to cover both data and information as data is needed to create information.
2.3.1 Brainwaves
Brainwaves are physiological signals produced by the brain and are inextricably linked to an individual. These physiological signals are created when millions of neurons generate an electric field of sufficient strength to be measured by electrodes placed on the head in an EEG.73 That is when data, that can be stored, is generated as the brainwaves are translated into raw brain data by the EEG. This is of importance because to have copyright protection, a person needs to own what is protected. Therefore, it is only possible to speak of ownership concerning data when the data can be stored and subsequently analyzed.74 As brainwaves themselves cannot be stored, no potential ownership can be provided and thus no economic value can be granted to them. This is different for the other types of brain data, because these brain data can be gathered and stored. While storing and analyzing brain data, significant economic value could be drawn from them, as they give insights into the operation of the brain. Therefore, brainwaves are not considered brain data, but are part of the analysis in Chapter 4 due to their essential nature in BCI applications.75
2.3.2 Raw brain data
The brainwaves measured by the EEG are translated into a new type of data, namely raw brain data. Before powerful and affordable computers were developed, these data were recorded on long strips of paper. With the advent of the digital EEG, it became easier to record and analyze the outcome of an EEG.76 The EEG usually detects brainwaves using electrodes arranged around the scalp.77 The measured brainwaves are recorded across various regions of the brain. The raw brain data that are created by the EEG can contain commercial value, the ideas, that could be copyright protected. However, these ideas are not perceivable by any average human as raw brain data first needs to be interpreted.
72 Ali M Al-khouri, ‘Data Ownership: Who Owns “My Data”?’ (2012) 2 International Journal of Management & Information Technology 1
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2.3.3 Inferences on raw brain data
The brain data derived from the EEG is not easily accessible or comprehensible. Medical professionals and researchers who understand the functions of the brain can read and understand the raw brain data and make inferences based on the fluctuations in electric potential. These fluctuations have certain meanings based on the part of the brain they are linked to, as the brain has different regions that are responsible for distinct processes.78 Some of these processes are important when trying to link the criteria of copyright protection to brain data. This is salient, because this research focuses partly on whether the content of the brain data extracted by the EEG can meet the requirements of copyright.
One of the main requirements of copyright, as is explained in Chapter 3, is originality based on creativity. Theo Austin Bruton provides an example of how the originality element is dealt with, namely by referring to creative and non-creative parts of the brain.79 He made this distinction when writing about the copyright-ability of so-called mind-movies.80 These are movies created based on brain data received from an fMRI. The author discussed whether these mind-movies, which were based on existing movies, can be copyright protected. The question then is whether the brain data that originates from those parts of the brain that are considered non-creative (the parts of the brain involved in visual processing), can still be creative. This is interesting when reflecting on Paragraph 2.2.2, where the difference between the two main technologies81 in this thesis are explained regarding the source of the input for these two EEG uses—one is created from memory and the other is based on visual experiences.
Many researchers have conducted studies to determine which parts of the brain are responsible for creative thinking. These studies, however, have not provided a definite answer, because many parts of the brain are involved in creative processes.82 Nonetheless, some studies pinpointed certain parts of the brain as vital in creative thinking: the frontal
78 Jones, Schall and Shen (n 52) 207–212. 79 The term non-creative is borrowed from the article, Bruton (n 35) 284. 80 Bruton (n 35). 81 These two technologies are the brain-to-text and brain-to-image conversion BCIs. 82 Dahlia W Zaidel, ‘Creativity, Brain, and Art: Biological and Neurological Considerations’ (2014) 7 Frontiers in Human Neuroscience 3
24 lobe,83 and the right hemisphere.84 Furthermore, it is salient to mention that a single creative process does not exist. Creativity can even be part of just an ordinary thought, meaning that it is likely indistinguishable from non-creative thoughts by any brain imaging technique.85
By referring to this, the suggestion is not created that the determination of originality should not rely only on assessing brain activity. This is just one of the ways, already used by Theo Austin Bruton,86 to reflect on the qualification of brain data in the line with copyright. It is thus a technical possibility for the future, mainly because of the possible change in expressing oneself (by using BCIs).
Even if no brain region can be distinguished as responsible for creative processing, it does not mean that no regions can be considered non-creative for the purpose of this research. The parts of the brain that can be considered non-creative are those involved in visual processing.87 If the EEG merely portrays what one is seeing, these signals likely do not include any creative element. The part of the brain responsible for visual processing is the primary visual cortex 88 located in the occipital lobe.89
Thus, the qualification of brain activity as creative or non-creative Figure 2 – The process of is an example of inferences based on brain data. Due to brain-to-text conversion.
83 Leonardo de Souza and others, ‘Frontal Lobe Neurology and the Creative Mind’ [2014] Frontiers in Psychology 1
25 developments in computer systems, many of these decisions needed to make certain inferences can be automated in computer programs and enhanced with the help of machine learning.90 An example of this process can be found in Figure 2.
In conclusion, inferences based on raw brain data can be characterized as a new form of brain data. Here the raw brain data are put in context and given a meaning, which means they can be considered information. Nevertheless, for the sake of simplicity, inferences are distinguished as the second type of brain data (inferences on raw brain data), because to become information, it first has to be data.
2.4 The state-of-the-art technology and its developments from past to future
The developments of neuro-technologies are astonishing but are not yet at the level of widespread consumer daily use. Five years ago, an article raised the question of whether we are at the stage of wearable BCIs.91 This article concluded that this was not the case and distinguished five main problems. First, dry electrodes were not as accurate as wet ones. Second, processing time for BCIs is slow, because of low signal-to-noise ratio.92 This low signal-to-noise ratio leads to the third problem, namely that multiple electrodes are needed to achieve the required results. Fourth, the systems cannot be used immediately, because training time is required. Lastly, to use the EEG accurately, the test-subject must remain stationary, as the EEG is sensitive to motion.93
Some of these problems have still not been fully fixed, but improvements have been made. In the research on brain-to-text processing, researchers used the Emotiv Epoc+ EEG headset, which does not require gel for the electrodes to get sufficient input from the brain signals.94 Additionally, the headset is wireless and these features increase the utility of the EEG
90 Which was clearly the case in the article Zhang and others (n 7) 2 on brain-to-text conversion as they even were able to create a new type of machine learning which is deemed more effective than any other computer program used before. 91 Viswam Nathan, ‘Wearable Brain Computer Interface Are We There Yet?’ (2013) 20 Magazine XRDS: Crossroads 56. 92 When a test subject responds to stimuli while performing a task, small signals are embedded in the rhythmic fluctuations of the EEG recording, which are related to the presentation of stimuli, production of responses and various cognitive processes, as explain in Jones, Schall and Shen (n 52) 229. The problem is that the brain always generates electric waves because neurons in our brains are always firing, as explained in Keith Sawyer, ‘The Cognitive Neuroscience of Creativity: A Critical Review’ (2011) 23 Creativity Research Journal 137, 138. This creates noise and can lead to problems when trying to measure the brain activity. If there is a low signal-to-noise ratio, it can make the measuring the brain activity more complicated. 93 Nathan (n 91) 58. 94 Zhang and others (n 8) 6.
26 headset.95 Furthermore, the problem of low signal-to-noise ratio has been partly solved using appropriate feature representation and classification, neural networks and machine learning.96 Also, developments in electrodes has led to headsets with only one electrode that can still receive sufficient signals.97 However, the reduction of training time is still a subject for future research.98 Additionally, the test subject still needs to remain stationary.99
The EEG in the research of image reconstruction used 64 wet electrodes.100 This means not all researchers opt for the dry electrode and portable EEGs. However, the brain-to-text research was not the only one using consumer wearable headsets. In a study published in February 2014, a portable real-time smartphone neuroimaging system was set up. The researchers also used the Emotiv Epoc+ headset, but mention that the smartphone brain scanner can be used by different mobile EEG devices with various numbers of electrodes.101 Additionally, the articles mentions that ongoing developments promise next-generation low- cost EEG devises with a significantly lower number of electrodes, better quality signals and improved comfort.102
Apart from the developments in the EEG headsets, other parts of the BCI systems are developing further. Computational intelligence is increasing through machine learning. For instance, in the research converting brain-to-text, a combination of two neural networks were used for effective EEG signal decoding.103 Besides increased intelligence of computers, more insights are being gained on brains. For instance, an article was published in May 2018 describing that researchers created the first high resolution single-trial full movie reconstruction. They achieved this by measuring the output from the retina104 of a rat.105 In 2011, it was already possible to create a (somewhat blurry) movie of what was seen through
95 The Emotiv headset is an 14 channel EEG connects through Bluetooth to PC and mobile devices. More information can be found on: https://www.emotiv.com/epoc/ accessed 6 June 2018. 96 Zhang and others (n 8) 2. 97 For instance the Neurosky head set. More information can be found on: http://neurosky.com/biosensors/eeg- sensor/biosensors/ accessed 6 June 2018. 98 Zhang and others (n 8) 6. 99 ibid 9. 100 Nemrodov and others (n 9) 9. 101 Stopczynski and others (n 18) 3. 102 ibid. 103 Zhang and others (n 8) 2. 104 The retina can be found in an eyeball with which, by stimulation of light, one is able to create vision. The retina is actually an extension of the brain and is connected to the brain by the optic nerve, as is explain on: https://www.britannica.com/science/retina accessed 7 June 2018. 105 Vicente Botella-Soler and others, ‘Nonlinear Decoding of a Complex Movie from the Mammalian Retina’ (2018) 15 PLOS Computational Biology
27 the eyes of the test-subject. The researchers reconstructed the visual experiences from brain activity evoked by movies. However, this research used an fMRI.106 For some time, it was thought that the EEG could not reconstruct images as clearly as the fMRI, due to its low- resolution view on brain activity. However, the research in January 2018 achieved image reconstruction using an EEG. The research proved that EEG-based reconstruction can provide results as accurate as the fMRI. 107
Based on all the developments that have and will occur, it is clear that good quality brain reading technologies can soon become part of consumer wearable technologies. Therefore, research in the interaction of these ground-breaking technologies and the law is essential.
2.5 Conclusion
This conclusion answers sub-question one: “What is the current application of the EEG and what types of brain data can be extracted with the use of this technology?” The current applications of the EEG are BCIs used for the conversion of brain signals into either text or images. These technologies are advancing rapidly, for instance because of the Smartphone Brain Scanner108 and the movie reconstructions109.
The information extracted by the EEG are considered brain data. There are two types of brain data: raw and inferences. Brainwaves are not considered brain data, but are the starting point in conducting any brain-reading research with an EEG. The brainwaves are used by the EEG to create the first type of brain data, the raw brain data. These raw brain data are the basis for the inferences, which are the second type of brain data.
The source to create brain data can be different. In the text conversion example, actual thoughts were used to create the output. In the image reconstruction example, the brainwaves converted were signals received from the eyes, which passed through the brain and were recorded by the EEG. This difference is important for the analysis of copyright protection and is compared and used as a guideline in the following chapters.
106 Nishimoto and others (n 6) 2. 107 Nemrodov and others (n 9) 15. 108 As was done in Stopczynski and others (n 18). 109 As was done in Nishimoto and others (n 6).
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Chapter Three
The Law: Copyright and the Idea/Expression Dichotomy
3.1 Introduction
The development of new technologies often fosters enthusiasm and new opportunities. However, certain possible downsides or negative consequences of new technologies are mainly encountered after its application. Finding ways to deal with these downsides can be challenging, especially when no clear options are available. The possible negative consequences of the widespread use of neuro-technologies are hard to predict, but as many technologies have negative consequences, the chances this new development does is almost certain.
The remainder of this thesis explores a possible protection of brain data by copyright law under Dutch and EU law and shows how certain assumptions focusing on copyright law crumble when confronted with this new technology. Therefore, this chapter provides a theoretical analysis of the protection of brain data by copyright and dives into the sub- question: “How could Dutch and EU copyright law provide potential protection for the types of brain data?”
The previous chapter explained the technical theory behind brain data. In Paragraph 3.2 certain assumptions are introduced and Paragraph 3.3 explains the rationale behind the proposed framework and its connection to brain data, both benefits and drawbacks are discussed. Based on the overview provided in this Paragraph, and explanation of copyright can be found in Paragraph 3.4 which covers both the Dutch and EU perspective. The last paragraph, Paragraph 3.5 concludes and answers the second sub-question.
3.2 The basic assumptions underlying this research
This research treads a new path, as it examines the newest technologies and the workings of copyright law. The basic principles of copyright law are questionable due to technological developments analyzed in this research. To bring the technology and the law together, certain assumptions are necessary. This paragraph distinguishes different assumptions that underlie this research: assumptions about neuro-technology and assumptions about copyright law. The latter are based on assumptions found in literature and the way the law has been applied. The former are assumptions created by the writer to create a fixed moment in the technological advancements to test the legal analysis. This research does not challenge the
29 assumptions based on the developments of neuro-technology because this thesis is focused on analyzing the law. This research uses the assumptions of copyright law to create a positivistic analysis of the current copyright framework under Dutch and EU law to protect brain data. However, these legal assumptions seem to struggle when applied to neuro- technologies.
The technology assumption is that the use of neuro-headsets will become popular consumer wearables. As the consequences of technologies are often both advantageous and disadvantageous, the most apparent possible downside is a misuse of the collected brain data by companies offering these headsets and BCI technologies. This misuse could be linked to the loss in control over the ideas of individuals using these technologies. Therefore, protection should be granted, by for instance awarding a ‘tool’ for protection.
There are two copyright law assumptions. First, it is assumed that the copyright systems in the Netherlands and the EU are fully developed and that they can be applied in any circumstance. Second, it is assumed that copyright systems are “technology neutral”, because the core principles of copyright can be applied to any field of technology.110 This would mean that applying the requirements of copyright to a new technology would produce a clear result—either it can or cannot be protected by copyright. To test these assumptions, the copyright frameworks of the Netherlands and the EU are assessed.
3.3 Rationales of copyright
The creation of the copyright framework is based on certain rationales. These rationales are based on the idea that providing protection for creative works will further advance creative processes and investment in creation. 111 Additionally, copyright should promote the production and dissemination of works, which would lead to an increase in access to information.112 Furthermore, the European Information Society Directive 113 states that a high level of copyright protection is crucial to intellectual creation and can ensure the maintenance and development of creativity.114 Moreover, an effective system of copyright protection can
110 Assumption mentioned in Alexandra George, ‘The Metaphysics of Intellectual Property’ (2015) 7 The WIPO Journal 16, 11. 111 Leslie A Kurtz, ‘Speaking to the Ghost: Idea and Expression in Copyright’ (1993) 47 University of Miami Law Review 1221, 1252. 112 Wilkinson and Gerolami (n 36) 322. 113 Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167. 114 Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167, recitals 9-10.
30 provide creators with adequate resources for safeguarding their independence and dignity.115 Copyright protection thus mainly focuses on ensuring a constant increase in new creative works by giving creators room to create and the chance to earn back their investments. Additionally, rights are granted to creators to protect their and the work’s reputation.116 All this is justified by the idea that a work should be someone’s intellectual property because it ‘belongs’ to them, as the work is ‘emanating from the creator’s inalienable personality’, or in other words: ‘is the fruit of their intellectual labor’.117
These rationales originate from a long development of copyright law. However, this development is now confronted with a new disruptive technology that is changing the basic concepts of copyright law. In the past, when a creator wanted to express an idea, it needed to become tangible for others to perceive it. The process of turning an idea into a work, often referred to as an expression, in principle requires an Idea Expression investment of labor, time and money.
Figure 3 – The iterative process Therefore, brain-to-text and image conversion, is a where the initial idea changes based disruptive technology, as no one needs to ‘invest’ in in the on the development of the expression creation of a work. Additionally, the process of creating has changed. Before there would be a constant process where the idea would be further defined through the creation of the expression, and the development of the expression would further develop the idea (Figure 3). BCI technologies, however, provide a ‘hard’ translation of brainwaves to raw brain data, from which inferences are formed. Consequently, a relevant question is whether copyright law still could be applied despite this change in the way a work is created. To answer this question, certain benefits and drawbacks of copyright protection are mentioned below. By answering this question, it will become apparent whether the types of brain data can be placed in the current Dutch and EU copyright law framework.
3.3.1 The benefits of copyright protection for brain data
Possible legal protection for brain data can be found in different areas of law, including copyright. This research focuses on copyright, because it is an existing and working system focused on the commercial value of information and if brain data would be considered to fall within it, the scope of protection would be easily understandable, as the framework is already known. Additionally, copyright law provides strong exclusive rights for the holder of the
115 Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167, recital 11. 116 These rights are referred to as moral rights. 117 Kur and Dreier (n 37) 6.
31 copyright. This would be a beneficial form of protection, as brain data are a unique part of the individual that may require such a strong protection. Moreover, the application, boundaries and criteria of copyright law are simply based on what lawmakers decided, defined or stipulated them to be.118 Copyright is a product of law and this law can be adapted by these same lawmakers. Copyright law is not a natural rule, as can be found physics. If the law would be deleted, copyright law would cease to exist.119 This means copyright law could be adapted to fit a new disruptive technology. Lastly, copyright law provides certain rights to the makers of the work. One of these rights is called moral rights.120 These moral rights encloses for instance the right for the maker of a work to have their name mentioned and to resist the adaptation of their work.121 These moral rights were created because it is thought that the makers should always have some control over their work, even if the maker chooses to, for instance, sell their economic rights. Even after selling it, the work will always remain a creation of the maker and thus determines the reputation of the maker.122 As brain data are the data of individuals and should always stay theirs, this is a useful parallel.
3.3.2 The drawbacks of copyright protection for brain data
Based on the change in how a work is created through BCI technologies, a complication arises due to the idea/expression dichotomy. The idea/expression dichotomy refers to the principle that an expression is protected under copyright, but ideas are not. 123 , 124 This dichotomy is the principle in copyright that creates a balance between providing incentives to create works that can be protected by copyright and providing protection to the public domain, so basic ideas can be used for new creations.125 However, the question remains whether brain data are an expression or an idea. When using BCI technologies, the final work126 is created by the BCI, based on the ideas of the individual. Thus, when using BCI- technologies, the creation of an idea in one’s head is the hardest part as this will be the only ‘labor’ necessary to create and the creation of the expression can be ‘outsourced’ to the BCI.
118 George (n 110) 3. 119 ibid. 120 In Dutch referred to as ‘persoonlijkheidsrechten’. 121 Gielen and Alkema (n 37) 501. These moral rights can for instance be found in Article 25 DCA. 122 ibid. 123 That ideas are not protected can be found in article 9(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), article 2 of the World Intellectual Property Organization Copyright Treaty, and the Guidance notes on the Berne Convention 12, 2.3. 124 Kurtz (n 111) 1222; Carl Mazurek, ‘Through the Looking Glass: Photography and the Idea/Expression Dichotomy’ (2017) 6 Journal of Intellectual Property and Entertainment Law 278, 280. 125 Kurtz (n 111) 1233. 126 Which in this research are considered the inferences on brain data.
32
However, copyright infringement does not only arise when there is literal copying, for instance in the case that the exact words are copied. 127 Copyright infringement Figure 4 – The process mainly occurs when the infringer copies the overall impression of of idea to expression work and captures the audience in the same way the first author did.128 To assess the overall impression, the features and elements are important.129 This means copyright protects more than a mere expression, it seems that also some types of ideas are protected.130 The dichotomy created between the idea and expression is, thus, not black and white. There is a grey area where the idea and expression are intertwined and where the idea can be protected. One could thus state it is not a dichotomy, but more a spectrum. That some types of ideas are protected is not strange, as the idea is the core of a creator’s intellectual creation. Therefore, this research distinguishes between protectable ideas (referred to as concepts, see Figure 4) and simple ideas that are not protected.
Until recently, the creators’ ideas remained locked in their minds.131 Copyright protects the expression of an idea that is captured in the work. The idea is the first step, where the expression is derived from the underlying idea. This means that the creator’s idea would never become truly known. 132 However, this has changed with the application of BCI technologies. It could be argued that the idea itself is captured in the brain data, especially the raw brain data. Therefore, the raw brain data already contains the ‘raw’ form of the work. Yet, the creation of the work that can be perceived by humans, the expression, only takes place when inferences are made from the raw brain data. These inferences would then again be an expression of the idea. However, for the expression to be protected by copyright, the work needs to adhere to the criteria known as fixation. The question would then be whether the form of fixation in raw brain data already adheres to the fixation requirement in copyright.133
127 Kurtz (n 111) 1255. 128 An additional element that was referred to that could be important is the fact that when the infringer copies the work of the original author, this infringer not only captures the audience but also receives the economic rewards that should have belonged to the first creator, as was mentioned in ibid 1238. 129 As was decided in HR 22 February 2013, ECLI:NL:HR:2013:BY1529 (Stokke/H3), para 3.4. In this case it was decided that a chair for children is not copyright protected because the form is determined by technical elements, even though it may have original elements. 130 Kurtz (n 111) 1248. 131 ibid 1245. 132 ibid 1248, 1250. 133 Alexandra George suggested that this could be the case if the brain itself became recognized as sufficient documented form, in George (n 110) 11–12.
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Nevertheless, a true distinction between the types of brain data and at which point a type becomes a protectable expression can depend on how far the idea is developed. It would be detrimental to creativity if exclusive rights are granted to basic, simple and general ideas, as they would be removed from the public domain. If a complex or specific idea, the concept, which combines multiple simple or general ideas, receives copyright protection, a far smaller part of the public domain will be restricted, as the protection is only granted for that combination of the simple ideas.134 Simple and general ideas should be left in the public domain to prevent the removal of the basic building blocks needed to create concepts that could receive protection. Only concepts, which can be considered individualized by the creator, are protected by copyright and the idea/expression dichotomy assures that the basic building blocks remain free to use.135
Despite the uncertainties the idea/expression dichotomy raise in the protection of copyright, the benefits of copyright protection for brain data seem to outweigh the drawbacks. Therefore, a practical analysis of brain data takes place in chapter 4. To analyze brain data, the Dutch and EU copyright law framework is explained in the following paragraph.
3.4 Copyright
3.4.1 The Netherlands
In the Netherlands, the framework of copyright law is codified in the Dutch Copyright Act of 1912 [DCA], which has changed multiple times due to EU directives and regulations.136,137 Article 1 DCA describes copyright protection under Dutch law: Copyright is the exclusive right of the creator of a work of literature, science or art, or of his assignees, to make public and to reproduce it, subject to the limitations imposed by law.138 Under copyright law, one may refer to an author to define the creator of the work. However, copyright does not just protect an author, it protects creators in a much wider category.139 According to article 10, paragraph 1, the Dutch Copyright Act protects “any product in the area of literature, science or art, in any way and form”. In line with this broad definition, the
134 Kurtz (n 111) 1254. 135 ibid 1257, 1261. 136 Geerts (n 37) 52. 137 The term copyright substantially has 3 different meanings in practice, it namely is an objective right, subjective right and a right in the sense of the monetary compensation for the copyright either based on a contract or the law, as explained in ibid. 138 Emphasis added. 139 Rudi Holzhauer and Sander Gellaerts, Van Idee Naar IE (4th edn, Wolters Kluwer 2015) 36.
34 criterion for copyright protection is that the work is a product of the human spirit.140,141 Finally, the work needs to qualify as a work in the sense of article 10 DCA.142
The criteria that need to be fulfilled for a work to fall under article 10 DCA are given in the case of the Dutch Supreme Court called Lancôme/Kecofa,143 and were further analyzed in the Endstra case. 144,145 The Supreme Court asserted that a work should be considered a product that can be protected by copyright when:
a) It is perceptible to the human senses. b) It has its own original character and carries the personal stamp of the author. c) The original character and the personal stamp are not the elements that result in the work obtaining a technical effect.146
As stated in Dutch literature on copyright, what has not been expressed147 cannot be protected copyright law.148 Therefore, based on the current literature ideas and thoughts are duty-free.149 However, this basic assumption on which the copyright criteria are based is not straightforward, as explained in Paragraph 3.3.2. Additionally, style cannot be protected
140 In Dutch this is referred to as: “een voortbrengsel van de geest”. 141 The object of copyright protection is immaterial and is referred to as the corpus mysticum. The material object, a book for instance, in which the work is fixated, the corpus mechanicum, is not protected. However, the product does need to be voiced or recorded in some way. 142 Bernt Hugenholtz, ‘De Endstra-Tapes’ [2008] Ars Aequi 819, 821. 143 HR 16 June 2006, ECLI:NL:HR:2006:AU8940, (Kecofa/Lancôme): In this case Kecofa tries to sell certain perfumes by publishing a list where they state that the smell of these perfumes correspond to the more expensive perfumes of Lancôme. Lancôme is of the opinion that this is an infringement of their copyright on smell and that Kecofa, by comparing perfumes, is acting unlawfully. The Dutch Supreme Court decided in this case in favor of Lancôme on the basis of article 6:162 Dutch Civil Code. This meant that Kecofa was indeed acting unlawfully as the combination of fragrances can be copyright protected under Dutch law. 144 Geerts (n 37) 55. 145 HR 30 May 2008, ECLI:NL:HR:2008:BC2153 (Endstra-tapes). However, the ‘test’ to receive copyright protection was first mentioned in the case HR 4 January 1991, ECLI:NL:HR:1991:ZC0104, NJ 1991,608 (Van Dale/Romme). In this case it was for the first time determined that there can only be copyright protection for facts when the collection is the author’s own intellectual creation and carries the author’s personal stamp. In the choices that are made the personal vision of the creator needs to become apparent which means the choices need to be subjective/personal. 146 HR 16 June 2006, ECLI:NL:HR:2006:AU8940, (Kecofa/Lancôme), para 3.2.2; Geerts (n 37) 55. 147 That what has not been given a form that can be perceived by a human. 148 Geerts (n 37) 55. 149 ibid.
35 based on the cases Van Gelder/Van Rijn150 and Decaux/Mediamax.151,152 Moreover, the work need not be finished153,154 or be based on conscious design to receive copyright protection.155
3.4.2 The European Union
The protection of copyright has expanded over the years and has never been as broad in terms of protectable subject matter.156 However, to obtain copyright protection on a work, the main criterion is that there needs to be some degree of creativity/originality.157 Additionally, once a work is finished, it will automatically receive copyright protection.158
When assessing the acquis communautaire of EU copyright laws, there is more harmonization than the regulations and directives would suggest.159 The CJEU has de facto harmonized the criteria for copyright protection, following from numerous case laws. Based on these cases, a summary of the originality standard can be understood. 160 First, EU copyright law requires that the work is the “author’s own intellectual creation”.161 Second, the author’s own intellectual creation162 can be present when the author can exercise free and creative choices. Third, the standard of originality requires the author to express the creativity
150 HR 28 June 1946, NJ 1946/712 (Gelder/Van Rijn), para 4.7. In this case the Dutch Supreme Court ruled for the first time that style is not eligible for copyright protection. 151 HR 29 December 1995, NJ 1996/546, (Decaux/Mediamax) para 3.4. In this case, HR 28 June 1946, NJ 1946/712 (Gelder/Van Rijn) case was confirmed. 152 Furthermore, in Dutch law, there is a difference between original and authentic work. The work needs to be authentic, which means that it needs to be an expression of what the creator moved to create the work, based on the HR 28 June 1946, NJ 1946/712 (Gelder/Van Rijn) case. The judge is always the one who determines whether the above mentioned conditions are met and thus whether a work is original. However, authenticity is different from originality. For authenticity no absolute originality is required, as nothing is absolutely original. The determining factor are the choices that are made (Holzhauer and Gellaerts (n 139) 38.) 153 Gielen and Alkema (n 37) 450. 154 ibid. 155 HR 30 May 2008, ECLI:NL:HR:2008:BC2153 (Endstra-tapes), para 3.2. 156 Willem Grosheide and Jan Brinkhof, Intellectual Property Law (1st edn, Intersentia 2005) 130. 157 Kur and Dreier (n 37) 3. 158 Article 5(2) of the Berne Convention for the Protection of Literary and Artistic Works. 159 Margoni (n 38) 1. 160 ibid 13. 161 C-302/10 Infopaq International v. Danske Dagblades Forening [2009] ECR I-06569, para 36. The judgement was based on recitals 4,9 to 11 and 20 of the Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167, according to Rosati (n 38) 976. In this case Infopaq infringed the copyright of Danske Dagblades Forening by scanning summaries of articles for commercial purposes. These articles were intellectual creations as “through the choice sequence and combination of the words that author can express his creativity” para 45. 162 The intellectual creation is the type of originality that is required for copyright protection.
36 in an original manner.163 Fourth, the author needs to put their personal stamp on the work.164 This means that when the expression in the work is determined by technical or functional rules, there can be no copyright protection, for instance, when there is only one way to express an idea or the expression is predetermined by a specific goal or constrained by narrow rules and no room is left for creative choices.165 Lastly, based on the further interpretation of the case law, the court emphasizes the qualitative contributions of the author, rather than the quantitative. This means that to reach the required level of originality, it is sufficient for the author to make some free and creative choices by which the author can put a personal stamp on the work. Conversely, skill and labor are not important, no matter how significant, and, therefore, cannot lead to the creation of a work possessing the required originality.166
On the 25 of July 2018, the EU advocate-general [AG] published his opinion on a Dutch case that was redirected to the CJEU for preliminary questions.167 In this case, the question arose whether taste can be copyright protected. The parties arguing for the inclusion of taste in the copyright framework based their arguments on the older case Kecofa/Lancôme from the Dutch Supreme Court, which decided that smell can be copyright protected.168 The AG
163 C-393/09 Bezpecnostnı ´ softwarova´ asociace - Svaz softwarove´ ochrany v Ministerstvo kultury [2010] ECR I-13971, para 50. In this case the security software association sought authorization to act as a collecting society for copyright in computer programs. However, the CJEU decided that the graphic user interface in question did not fall under the Council Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs. It, however, could be qualified as a work. Nevertheless, no protection could arise where the expression of the components of the graphic user interface was dictated by their technical function. Lastly, it was decided that there is no communication to the public through broadcasting the graphic user interface as there is no interaction between the user and the interface, which is required. 164 C-604/10 Football Dataco v. Yahoo! [2012] ECR I-000, para 38 (in this case the CJEU decided that football fixture lists are not protected by copyright if the complication is not the author’s own intellectual creation. Of no importance is whether the compilation required significant skill and labour.); C-302/10 Infopaq International v. Danske Dagblades Forening [2009] ECR I-06569, para 45; C-393/09 Bezpecnostnı ´ softwarova´ asociace - Svaz softwarove´ ochrany v Ministerstvo kultury [2010] ECR I-13971, para 50; C- 145/10 Eva-Maria Painer v. Standard VerlagsGmbH [2011] ECR I-12533, paras 89, 92. In this case the CJEU decided that portrait photos can be protected by copyright by making creative choices in setting up, shooting and developing the photo. By doing this, the photographer can stamp the word with their ‘personal touch’. 165 C-403/08 Football Association Premier League v. QC Leisure and Karen Murphy v. Media Protection Services [2011] ECR I-09083, para 98; This case concerns broadcasting rights. There can be no copyright in a football match. It was decided that a sporting event cannot be regarded as an author’s intellectual creation. It, however, is possible that the FAPL can have copyright protection in certain works contained in the broadcast of the football matches. C-393/09 Bezpecnostnı ´ softwarova´ asociace - Svaz softwarove´ ochrany v Ministerstvo kultury [2010] ECR I-13971, para 49; C-604/10 Football Dataco v. Yahoo! [2012] ECR I-000, para 38. 166 Margoni (n 38) 14–15. 167 C-310/17 Levola Hengelo BV v Smilde Foods BV [2018] Opinion of AG Wathelet. 168 HR 16 June 2006, ECLI:NL:HR:2006:AU8940, (Kecofa/Lancôme); RB Den Haag 3 May 2017, ECLI:NL:RBDHA:2017:4384, (Levola Hengelo BV/Smilde Foods BV); RB Gelderland 10 June 2015, ECLI:NL:RBGEL:2015:4674, (Levola Hengelo BV/Smilde Foods BV). In this case Smilde created a cheese which tastes very similar to the cheese created by Levola. Levola claims to have copyright
37 argued that taste cannot be copyright protected because taste cannot be identified objectively. Taste is subjective and as the parties opposing the protection stated, taste is unstable and can change, for instance when the product is nearing its expiration date.169
The CJEU had not yet delivered its decision at the time this thesis is written, but this case will be fundamental in deciding the boundaries of copyright protection. If the CJEU agrees with the AG, this would overturn Kecofa/Lancôme. The AG asserted that taste should not be protected based on its subjective elements as then the scope of protection would be vague and individual.170 It is not merely enough that a taste can be considered original, it need to be a work. Furthermore, the AG asserts that the instability is an additional obstacle against categorizing taste as work.171
The question is then whether this potential new boundary is relevant for the protection of brain data. The outcome of the case could suggest whether brain data would be protected based on subjective or objective elements and whether there are additional obstacles that would prevent brain data from being considered a work.
Interestingly, the comparison of these requirements shows how copyright and brain data could meet. The main point of interest is that skill and labor are not relevant for copyright protection.172 Since the invested time and effort is not what determines copyright protection, the use of a brain-reading device would not stand in the way of copyright protection for the work created by this device.
3.5 Conclusion
This paragraph answers sub-question 2: “How could Dutch and EU copyright law provide potential protection for the types of brain data?”
The legal assumptions known in the current framework of Dutch and EU copyright laws, based on its rationales and application, show a theoretical possibility for copyright protection for the types of brain data. These legal assumptions give a chance to protect the commercial
protection on their cheese and that Smilde infringes their exclusive right. No answer has been provided yet as the case has been referred for preliminary questions to the CJEU. 169 Hearing notes by Tobias Cohen Jehoram and Syb Terpstra in the case C-310/17 Levola Hengelo BV v Smilde Foods BV [2018],
38 value within the brain data as copyright law is considered to be a fully developed and working system, in addition to being technology neutral. However, the idea/expression dichotomy already shows a complication in the protection of brain data.
Even though a drawback can be found, a practical analysis of brain data and copyright protection would still be interesting as there are benefits. Copyright laws have a strong connection to the creator, as can be seen through the creation of moral rights. These moral rights provide the possibility for creators to always have a say in the work they created.173 These rights ensure that creators can keep control over their work. Such a ‘tool’ should stay present even with the development of neuro-technologies. Therefore, brain data could be protected by the current Dutch and EU copyright law framework. However, the answer to the second sub-question is drawn from a more theoretical point of view. A practical analysis is salient to understand the consequences of the protection of brain data by copyright and this takes place in the following chapter.
173 Gielen and Alkema (n 37) 501.
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Chapter Four
The Application: Copyright Meets Brain Data
4.1 Introduction
The purpose of this chapter is to attempt to apply the Dutch and EU framework of copyright protection to the different types of brain data. Therefore, this chapter aims to answer the following sub-question: “Which problems arise when the types of brain data are analyzed within the current Dutch and EU copyright law framework”?
To be complete in the practical analysis, brainwaves are included in Paragraph 4.2 to draw a clear distinction between the other types of brain data and the limits that exist in applying copyright principles on brainwaves. Further, this chapter deals with raw brain data (Paragraph 4.3) and inferences on raw brain data (Paragraph 4.4). These two types of brain data are again divided into two scenarios namely, brain data received from memory and imagination or from visual perception. This distinction is based on the different technologies covered in Chapter 2. The analysis of brain data and copyright law does encounter certain problems, which are covered in Paragraph 4.5 and reflect back on the assumptions stated in Paragraph 3.2. Lastly, Paragraph 4.6 concludes and answers the third sub-question.
4.2 Brainwaves
Brainwaves are the physiological signals registered by the EEG and the starting point of any brain reading device. As concluded in paragraph 2.3.1, brainwaves do not fall under the term ‘data’. These brain signals cannot be stored and subsequently analyzed.174 In addition to the fact that these signals are not copyright protected, considering brainwaves protected by copyright provides many difficulties. In the following paragraph it is explained that the requirement of perception, a necessary criterion for copyright protection, is not to be interpreted too narrowly. It may be the case that that an apparatus is necessary.175 However, the apparatus in question here, the EEG, uses the brainwaves to create raw brain data. Raw brain data are in itself merely data that do not show the work. The EEG, thus, does not create a work. This is different for raw brain data because the BCI does create the work.
174 Al-khouri (n 72) 2. 175 Ysolde Gendreau, Axel Nordemann and Rainer Oesch (eds), Copyright and Photographs An International Survey (1st edn, Kluwer International 1999) 206.
40
Additionally, another known analogy, where the brain is a computer, does not work either. The brain cannot be compared to a computer and an idea cannot be compared to a Word document. An idea in a brain is not saved in a certain place like a document is on a hard drive of a computer.
4.3 Raw brain data and copyright
Raw brain data are the first type of data created by the EEG after the brainwaves of an individual are measured. These brain data are “raw”, as the data are not interpretable for most people. Only after inferences are made will the public understand the content of these raw brain data. However, raw brain data may already be important to protect, as it contains the creative value, the idea, in its “raw” form. This raw form may be considered an idea, but where it is exactly situated on the spectrum from idea to expression is still unclear. Nevertheless, the technical form of raw brain data is analyzed in comparison to copyright law as they are the source of any work created by the BCI. In this paragraph, both the perspective of memory and imagination (4.3.1.) and visual perception (4.3.2) are covered and potential copyright protection is analyzed from both a Dutch and EU perspective.
4.3.1 Memory and Imagination
With a BCI, the person using an EEG can write a text merely by thinking of it. To analyze whether this type of brain data can be protected by copyright, the criteria for the Netherlands (Paragraph 4.3.1.1) and the EU (Paragraph 4.3.1.2) are used.
4.3.1.1 The Netherlands
These raw brain data are captured and translated from brainwaves by the EEG, and are thus clearly a product from the human spirit as the BCI is directly reading brain signals. Thus, the criteria from the Kecofa/Lancôme case can be used to analyze whether raw brain data can qualify as a work and thus receive copyright protection.
However, an important element in the process of creation is being changed by the use of BCI- technologies. In the past, when one would like to express an idea, their idea would change and crystallize while creating the expression. There would be an iterative process changing the idea based on the outcome that would be seen in the expression. The EEG, however, provides what one could call, a moment of ‘hard’ translation where the idea measured through its brainwaves is fixated in the raw brain data.
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a) It is perceptible to the human senses
The raw brain data are perceptible to the human senses, as people can see the data. However, the work that is captured inside the data cannot be perceived. These data do not portray the creation, it merely contains it.176 To show the work, it needs to be converted to text. The final text that is created is in the course of this research referred to as inferences on raw brain data. The raw brain data are still data, but inferences from raw brain data can be considered information. Information can be protected by copyright, while pure data cannot.177 Therefore, the data should in principle not be protected. However, the enumeration included in article 10(1) DCA is not limited and is open to new types of work that could be protected. 178,179 This has become apparent as both Dutch lower and higher courts have protected new works, such as puzzles, dolls, videogames, chocolates and the smell of perfume 180
Additionally, the requirement of perception of the work by human senses should not be analyzed too narrowly. It is merely essential that the work be perceivable by some means, which need not be immediate. 181 For instance, an apparatus can be used. 182 An obvious comparison here is the video fixed on film. A video play-back apparatus is necessary to see and listen the work, but there is no discussion about protection of the film by copyright. Another example is photographic negatives, which need to be developed for people to perceive a photo, but underdeveloped negatives are protected by copyright.183 As can the photos that are saved in a digital format. After all, they can be made perceivable for third
176 By using BCI-technologies, involving for instance, artificial intelligence (as was done in Zhang and others (n 8) 2.) it can extract this information and create a work that could be protected by copyright. This is, for instance, the case in brain-to-text conversion in Zhang and others (n 8). 177 Data that is organized in an original way and for which a substantial investment is made could be protected by a sui generis database right. However, this is not the case here as the thoughts are just translated into data and are not collected in a creative way. Any database protection would be based on the Database Directive (Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases [1996] OJ L77/2) which covers two aspects of database protection, namely database copyright protection and sui generis database protection Koščík and Myška (n 22) 46–47. These two aspects of protection can be distinguished based on the criteria they need to fulfill and the substance of the right. The database copyright does not extend to the content of the database and is limited to the selection and arrangement, in other words, the structure of the database. The sui generis protects the contents of the database, the aggregated data, work or other materials. Bernt Hugenholtz, ‘Something Completely New: Europe’s Sui Generis Database Right’ in S Krankel and D Gervais (eds), The Internet and the Emerging Importance of New Forms of Intellectual Property (Kluwer Law International 2016) 216. 178 Article 10(1) DCA: includes the following statement: ‘in general any product in the field of literature, science or art, in whatever way or in whatever form it is expressed.’ 179 Hugenholtz, ‘De Endstra-Tapes’ (n 142) 821. 180 ibid. 181 Gendreau, Nordemann and Oesch (n 175) 206. 182 ibid. 183 ibid.
42 parties and are therefore laid down in their own material form.184 As raw brain data are merely the essential first type of brain data when creating the final end-product, it is similar to photos saved in its digital format. This would mean that raw brain data could also be protected by copyright, because it is an essential step in creating the work that is protected with the use of BCI-technologies.
b) It has its own original character and carries the personal stamp of the author.
In the Endstra case, the Dutch Supreme Court ruled that the original character and the personal stamp of the author means that the form cannot be derived from another.185 In principle, the work contains the personal stamp of the author when the form is the result of creative human labor and of creative choices, which are the product of the human spirit. The raw brain data do not have their own original character, it is merely the product of EEG analysis. The work that may have an original character and that carries the personal stamp of the author is captured inside that raw brain data. One cannot see it, it first needs to be inferred. Nevertheless, a possible way to protect raw brain data is by the analogy of the negatives of the photo. As the end product can be protected, the text, the raw brain data can be protected as it is merely a step in the creation.
c) The original character and the personal stamp are not the elements that result in the work obtaining a technical effect
The last element186 is relevant to whether raw brain data can be protected because its end- product, the inferences on raw brain data, are protected. This criterion arose from the Technip case, where the question was whether the drawing of a kinetic schedule could be protected by copyright. Here the court decided that it could receive copyright protection if the original character and personal stamp are not necessary to obtain a technical effect.187 This seems to be the case because the configuration of raw brain data, the peaks and troughs, are determined by the EEG, which provides that type of data.
Concluding, the raw brain data are the result of a technical procedure, namely EEG reading. However, the data are not protected, as the elements that are shown are not original or carry a personal stamp. Thus, raw brain data do not meet the criteria for copyright protection under Dutch law, especially when the end-product is not copyright protected either. If the analogy
184 ibid. 185 This is also on the basis of article 13 DCA. 186 HR 16 June 2006, ECLI:NL:HR:2006:AU8940, (Kecofa/Lancôme); Geerts (n 37) 55. 187 HR 24 February 2006, ECLI:NL:HR:2006:AU7508, (Technip/Goossens).
43 of the photo and its negative holds, the protection could be expanded to also protect raw brain data that leads to a copyright protected concept, as it contains the concept.
4.3.1.2 The European Union
The criteria for copyright protection in the EU are discussed in Paragraph 3.3.2 and are used to analyze raw brain data. The same analysis as was done in Paragraph 4.3.1.1 is applied here but using the requirements provided by the CJEU.
EU copyright law provides protection for a work when that work is the author’s own intellectual creation.188 A work is considered the author’s own intellectual creation when the work reflects the author’s personality. This is the case when the author can exercise free and creative choices.189 As the raw brain data here is created by either imagination or memory, it should be an intellectual creation. Even if the brain data are based on memory, the brain cannot remember each detail with such precision that a complete replication from mere memory is possible.190 The assumptions made in the creation of a memory reflect the author’s personality.
Additionally, based on the general definition of the word imagination, a work created from imagination should be considered the author’s own intellectual creation. However, this creation cannot be perceived in the form it is presented, namely the raw brain data. Again, the creative value may be captured in the raw brain data, but one cannot perceive it without making the appropriate inferences. Therefore, the raw brain data do not reflect the author’s personality. It does, however, contain the author’s personality.
The same logic could apply here as used in the Dutch law analysis. If the end-product can be protected, the first form necessary to create the end-product can also be protected. However, this logic has not been used in any previous case law. Additionally, the opinion of the EU AG in the case about copyright protection of taste shows a possible new direction of limiting the reach of copyright.191 The main objections were that the scope of protection is decided subjectively and that taste can change; however, raw brain data are not subjective as it is mere data and does not change.
188 C-302/10 Infopaq International v. Danske Dagblades Forening [2009] ECR I-06569, para 36). ). The judgement was based on recitals 4,9 to 11 and 20 of the Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167, according to Rosati (n 38) 976. 189 C-145/10 Eva-Maria Painer v. Standard VerlagsGmbH [2011] ECR I-12533, para 88. 190 Rodrigo Quian Quiroga, ‘Neuronal Codes for Visual Perception and Memory’ (2016) 83 Neuropsychologia 227, 229. 191 C-310/17 Levola Hengelo BV v Smilde Foods BV [2018] Opinion of AG Wathelet, para 55-59.
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As with Dutch law, current EU copyright law does not protect raw brain data. The main issue is that raw brain data are just data. It does not show any personal creation and copyright only protects concepts that can be perceived.
4.3.2 Visual perception
EEG signals can be used to create a pattern analysis for image reconstruction. The EEG monitors the information that passes through the person’s eyes and is registered by the brain. To analyze whether this type of brain data can be protected by copyright, the criteria for the Netherlands (Paragraph 4.3.2.1) and the EU (Paragraph 4.3.2.2) are used again.
4.3.2.1 The Netherlands
As the object of protection, the raw brain data, and the analysis are the same as in Paragraph 4.3.1.1, only the second requirement for copyright protection under Dutch law is discussed.
The analysis of the second criterion creates a problem, since one cannot perceive the original character of the work. However, this analysis is based on raw brain data created through visual experiences, which are not based on the imagination of the individual using the BCI technology. The presumption would be that what is seen through the eyes of a person is a mere reflection of reality and can thus not have an original character or carry the personal stamp of the author. It would originate from the non-creative part of the brain. This means that if the end-product, the inferences, do not meet the criterion for copyright protection, then the raw brain data will not be protected either.
4.3.2.2 The European Union
This analysis follows the same reasoning as the previous paragraph, the only difference is that here the raw brain data are based on visual perception. Therefore, the same conclusion can be drawn, namely that it may be the author’s own intellectual creation, but that is not what is perceived in the raw brain data.192 Additionally, the raw brain data assessed here is created based on visual perception of the individual. The conclusion whether this brain data can be protected depends again on whether the inferences can be protected.
192 C-302/10 Infopaq International v. Danske Dagblades Forening [2009] ECR I-06569, para 36). The judgement was based on recitals 4,9 to 11 and 20 of the Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167, according to Rosati (n 38) 976.
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4.4 Inferences on raw brain data and copyright
Inferring raw brain data is the last step in the brain-reading creation of a work. At this point the raw brain data, that is merely data, is analyzed and processed in such a way information is created, either in the form of a text, photo or video. In this Paragraph both the perspective memory and imagination (4.4.1.) and visual perception (4.4.2) is covered and potential copyright protection is analyzed from both a Dutch and EU perspective. At the end of this paragraph a short overview is provided where both memory and imagination, and visual perception are compared, and the Dutch and EU law for each type.
4.4.1 Memory and Imagination
4.4.1.1 The Netherlands
The three main criteria for copyright protection from Kecofa/Lancome are discussed and analyzed in this paragraph as the inferences on raw brain data are a work that is a product of the human spirit and is recorded by the EEG. In order to analyze whether this type of brain data can be protected by copyright, the criteria provided in Paragraphs 3.4.1 for the Netherlands and Paragraph 3.4.2 for Europe are used.
a) It is perceptible to the human senses.
This is the case as these inferences are a text in this example which is perceptible to the human senses. The first criteria can thus be met.
b) It has its own original character and carries the personal stamp of the author.
The creativity captured in raw brain data is expressed and translated by the BCI system and is thus in line with the analysis in Paragraph 3.4.1.1. The only difference here is that the raw brain data is transposed into the final product, which is the idea expressed with the help of computer programs incorporated in the BCI technology. However, these computer programs are merely a tool to create the product thought of by the individual.193 They do not add any
193 It is not the machine that creates the idea, it merely “puts” in the labor to create something that is perceptible to the human senses. Often these technologies are seen as a tool where the researcher in the end still makes all the decisions. If that is the case the work, if considered original, it is still created by the researcher who could then be considered the owner. This is different the moment the software decides what is included in the ‘work’ without any input of the researcher. When a computer, through machine learning, can create a work, one cannot characterize the EEG and the software used as a tool anymore. However, a full elaboration falls outside the scope of this research as it merely focusses on a computer assisted creations and not computer
46 creativity to the product; the creativity is drawn from the brainwaves received from the individual.
However, as the product is based on memory or imagination, it could be borrowed from another work. Yet, the brain is generally incapable of remembering each detail with such precision that a complete replication is possible. The analogous types of assumptions that are made, elicit the creation of false memories. 194 Each memory thus carries the personal assumptions of the creator. What is drawn from memory or imagination could thus be considered creative and may contain the creative choices necessary to meet the originality requirement for copyright protection.
Additionally, the person using the BCI might not have intended to create anything, but is doing so subconsciously. Nevertheless, this is not a problem as this criterion does not require that the creator of the work deliberately wants to create and thus makes conscious creative choices, as it would lead to insurmountable problems in the burden of proof.195 However, a complication arises when the creation is based on a general idea that should not be copyright protected. A short video made by a burst of inspiration could be the beginning of an idea, but not yet thought out enough, that it could be considered an expression. This again shows the problems concerning the idea/expression dichotomy.
However, the Ernstra-case clarified that a work does not need to be a coherent creation in order to received protection.196 Nevertheless, it is still uncertain when an idea is expressed enough for it to be protected and how that would relate to the Endstra case. Especially since it still has to be a human creation and not a random human act. A fight between a married couple is not a ‘play’, a crying baby is not a ‘music piece’ and gossiping is not an ‘oral presentation’.197
Concluding, the inferences on raw brain data meet this second criteria. The final product can have an own original character and can carry the personal stamp of the author. This is the case because the brain is incapable of remembering each detail with such precision that a
generated creations Colin R Davies, ‘An Evolutionary Step in Intellectual Property Rights – Artificial Intelligence and Intellectual Property’ (2011) 27 Computer Law & Security Review 601, 607. 194 Quian Quiroga (n 190) 229. 195 HR 30 May, ECLI:NL:HR:2008:BC2153 (Endstra-tapes), para 4.5.2. 196 HR 30 May, ECLI:NL:HR:2008:BC2153 (Endstra-tapes), para 4.5.2. 197 Hugenholtz, ‘De Endstra-Tapes’ (n 142) 821.
47 complete replication is possible.198 Additionally, it is not necessary that the author is required to make conscious creative choices199 nor does it have to be a coherent creation.200
c) The original character and the personal stamp are not the elements that result in the work obtaining a technical effect.
As the product of brain data here is either an image, a text or a video, which are considered to be creative despite their fixed form, the third criterion is met.
4.4.1.2 The European Union
The criteria for EU copyright protection are discussed in Paragraph 3.3.2. EU copyright law provides protection for a work when that work is the author’s own intellectual creation .201 A work is considered the author’s own intellectual creation when the work reflects the author’s personality. This is the case when the author can exercise free and creative choices.202 As the brain data here is created by either imagination or memory, it should be an intellectual creation. Even if the brain data are based on memory, the brain cannot provide a complete replication from memory203 and the assumptions in the creation of a memory reflect the author’s personality. Additionally, based on the definition of the word imagination, a work created from imagination is an author’s intellectual creation. This means that also the third criterion that the author should be able to express the creativity in an original manner, is fulfilled because the creativity is either expressed through its own assumptions or through imagination.204
However, artists are not only creative, but also often use various techniques to express their ideas. A portrait painting of Picasso is different than that of Van Gogh. These artists invest time and money in perfecting their own style. Even though style is not protected, the work is and therefore one could argue that it is worth the time. Therefore, it seems copyright protects the effort and investment made in the work. However, based on the case law of the CJEU,
198 Quian Quiroga (n 190) 229. 199 HR 30 May, ECLI:NL:HR:2008:BC2153 (Endstra-tapes), para 4.5.2. 200 HR 30 May, ECLI:NL:HR:2008:BC2153 (Endstra-tapes), para 4.5.2. 201 C-302/10 Infopaq International v. Danske Dagblades Forening [2009] ECR I-06569, para 36. The judgement was based on recitals 4,9 to 11 and 20 of the Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167, according to Rosati (n 38) 976. 202 C-145/10 Eva-Maria Painer v. Standard VerlagsGmbH [2011] ECR I-12533, para 88. 203 Quian Quiroga (n 190) 229. 204 C-393/09 Bezpecnostnı ´ softwarova´ asociace - Svaz softwarove´ ochrany v Ministerstvo kultury [2010] ECR I-13971, para. 50.
48 emphasis is given to the qualitative rather than the quantitative contributions of the author.205 The main point is thus the personal input of the author through the author’s free and creative choices. The skill and labor necessary to create the product is irrelevant.206 The fact that the brain data are thus created by an EEG will not take away its copyright protection when little manual labor occurs, but the creative choices of the user is clear and substantial.
Thus, copyright protection is not based on the energy invested in creating the work, but the development of the idea. This development of the idea happens in a person’s brain and is expressed in a form that is perceptible to people’s senses, at which point it can be copyright protected. Therefore, just because the idea is captured by the EEG without the intent of the creator should not stand in the way of copyright protection, as this person should still be rewarded for coming up with the idea.
As was the case under Dutch copyright law, EU copyright law requires a personal stamp of the author on the work. 207 This stamp is considered to not be present when the expression of the work is determined by technical or functional rules. This would be the case when there is only one way to express an idea or the expression is predetermined by a specific goal or constrained by narrow rules leaving no room for creative choices, there can be no copyright protection. 208 However, the final form, the inferences on raw brain data, are either a text, photo or video which are known to be able to carry the personal stamp of the creator. Thus, it seems that under EU copyright law, inferences on raw brain data could be protected.
Concluding, inferences on raw brain data could be protected by copyright as it is able to reflect the author’s personality in the end-products (the text, photo or movie). The BCI technology translates the thoughts, based on either imagination or memory, of the individual into the product. The only additionally element is that the product is created by the BCI technology. As explained in the previous paragraph, BCI technology it is not considered to add any creative value to the product and thus is a tool, just as pen and paper are a tool to express words by hand.209
205 Lionel Bently and Brad Sherman, Intellectual Property Law (1st edn, Oxford University Press 2014) 102. 206 Margoni (n 38) 14. 207 C-604/10 Football Dataco v. Yahoo! [2012] ECR I-000, para 38; C-302/10 Infopaq International v. Danske Dagblades Forening [2009] ECR I-06569, para 45; C-393/09 Bezpecnostnı ´ softwarova´ asociace - Svaz softwarove´ ochrany v Ministerstvo kultury [2010] ECR I-13971, para 50; C-145/10 Eva-Maria Painer v. Standard VerlagsGmbH [2011] ECR I-12533, paras 89, 92. 208 C-403/08 Football Association Premier League v. QC Leisure and Karen Murphy v. Media Protection Services [2011] ECR I-09083, para 98; C-393/09 Bezpecnostnı ´ softwarova´ asociace - Svaz softwarove´ ochrany v Ministerstvo kultury [2010] ECR I-13971, para 49; C-604/10 Football Dataco v. Yahoo! [2012] ECR I-000, para, 39. 209 As explained in n193.
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4.4.2 Visual perception
4.4.2.1 The Netherlands
As the object of protection, the inferences on raw brain data and the analysis are the same as in Paragraph 4.3.2.1, only the second requirement for copyright protection under Dutch law is discussed.
To conclude that the product created by the BCI can be considered to have an original character and carry the personal stamp of the author, it is necessary to understand what happens in the eyes and brains of the individual recording their brain data. As explained in Paragraph 2.3.3, some researchers claim that parts of the brain used to process visual perception are considered non-creative, since they provide a literal reflection of what one sees. However, based on the scientific understanding of the human eyes and brain, this is not the case. People’s visual perceptions involve constantly making inferences about what is seen. This manifests in visual illusions, where unconscious and unavoidable assumptions lead to false interpretations. 210 This means that every individual can perceive the same sight differently. An example of this provided by Austin Burton, is where two individuals stand across a waterfall. If one person watches the waterfall from the north, and the other from the west, both will have a very different visual perception. These perceptions may further differ if one person is, for instance, taller than the other.211
Besides visual differences based on perspective, there are differences in visual perception attributed partly to the substantial variance in the size of brain structures that are responsible for the processing of visual information.212 As a result, some individuals can distinguish more visual detail than others or experience the surface of an object as larger.213 Other studies show that applying attention to a stimulus can change multiple dimensions of motion coherence214 or sensory perception, such as color.215 This means that there is considerable variance among people in how they perceive the environment, which leads to objective differences. 216
Additionally, creative choices are important for the originality and personal stamp of the creator. These creative choices become apparent as every person chooses, either consciously
210 Quian Quiroga (n 190) 229. 211 Bruton (n 35) 279–280. 212 Sarah Richmond, Geraint Rees and Sarah JL Edwards, I Know What You’re Thinking : Brain Imaging and Mental Privacy (1st Edition, Oxford University Press 2012) 60. 213 Schwarzkopf, Song and Rees (n 39) 1–3. 214 Liu, Fuller and Carrasco (n 40) 1093–1094. 215 Fuller and Carrasco (n 40) 4042–4044. 216 Richmond, Rees and Edwards (n 212) 60.
50 or subconsciously, to focus on certain aspects of what the person is perceiving due to subjective preferences. For instance, in the waterfall example, if the first person is interested in bird-watching, that person may be focused on the birds that pass by. This could mean that in the end-product, created by the BCI technology, birds could play a bigger role than in the end-product of the other person who is more interested in the plants and flowers surrounding the waterfall.217
These objective and subjective differences in visual perception are important in the assessment of whether the work has its own original character and carries the personal stamp of the author. Since no two people perceive the same view identically, the expression of these perceptions through the EEG should be different. These biological differences provide the original character, which means that a work originating from one person could only carry that person’s personal stamp.
Concluding, the inferences on raw brain data originating from visual experiences could fall under copyright protection due to the inherent workings of the human eyes and brain.
4.4.2.2 The European Union
This paragraph is in line with the conclusions drawn in the previous paragraphs. The only point of interest here is the explanation for personal stamp of the author based on the Painer case of the CJEU. That case demonstrated that the photographer stamped the work with a personal touch through the choices made in the creation of the portrait.218 The question then arises whether these choices need to be made consciously or can also be based on subconscious preferences. This is important, because if the subconscious preferences are also considered a choice, then the subconscious preferences made to perceive are as much a choice as the subconscious preferences when taking a photograph.
The choices made for a portrait photo are limited and photographers do not consciously tell themselves why they take certain shots, instead they experiment and take various photographs before choosing one. They do not just set up the shot and only take one photo. Therefore, subconscious choices involved in providing the personal touch and the inferences from raw brain data based on visual perception meet this criterion for copyright protection.
217 These are the subjective differences, as also mentioned in Bruton (n 35) 282. 218 C-145/10 Eva-Maria Painer v. Standard VerlagsGmbH [2011] ECR I-12533, para 92.
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4.4.2.3 Conflicting rights
Another difference between the memory and imagination and the visual perception occurs when what an individual visually perceives is already a copyright protected work. The question then arises whether the work created by the BCI based on the visual experiences of the user could be copyright protected and whether it could be an infringement of the first person’s copyright. This again depends on the work that is created by the BCI. As both objective and subjective differences in visual perception could create a work that meets the criteria for copyright protection.
The question is then whether this ‘new’ work is infringing the original work. If the creation of the BCI shows the protected features of the original work to such an extent that the overall impression of the two works is so similar that the new work cannot be regarded as an independent work in comparison to the original work, there is an infringement.219 When the new work has a different character on its own and the overall expression is not alike, one could conclude that there is no infringement. Even if the BCI created work differs substantially but the style can be recognized, there does not have to be an infringement, as style is not protected by copyright.220
Thus, it is of importance whether there is a clear misappropriation of those elements protected for the overall impression of a work.221 If these elements or features can be found in the new work, this may lead to an infringement. 222 However, what these protected elements and features are, is not merely the exact expression of the work. When analyzing the overall impression, one enters the grey area in the idea/expression spectrum.
4.5 Problems encountered
The analysis of the criteria of copyright on brain data shows that these criteria, in principle, are equipped to deal with new technologies. Both the Netherlands and the EU’s criteria attempt to be “technology neutral”. However, these criteria rely on an assumption, namely
219 HR 29 November 2002, ECLI:NL:HR:2002:AE8456 (Una Voce Particolare), para 3.5. This case concerned a television program called Una Voce Particolare. It was decided in this case that an infringing reproduction takes place when the overall impressions, that are the result of copyright protected features, differ too little to be able to qualify the reproduction as a new original work. 220 As was made clear under Dutch law in the cases: HR 28 June 1946, NJ 1946/712 (Gelder/Van Rijn) and HR 29 December 1995, NJ 1996/546, (Decaux/Mediamax). 221 HR 22 February 2013, ECLI:NL:HR:2013:BY1529 (Stokke/H3), para 3.4. 222 An additional element that was referred to that could be important is the fact that when the infringer copies the work of the original author, this infringer not only capture the audience but also receives the economic rewards that should have belonged to the first creator, as was mentioned in Kurtz (n 111) 1238.
52 that the difference between idea and expression is clear. The expression is protected, the idea is not. This assumption has already been brought down in Paragraph 3.3.2, which showed that complications arise when the idea/expression dichotomy is applied to work created by neuro-technologies. Additionally, even though this notion has always been known as a dichotomy, if one dives deeper into its practical workings, a spectrum can be recognized where a third form can be found: the concept. The concept inhibits the grey area between the unprotected idea and the protected expression.
It may seem strange that such an important notion of copyright law is not discussed more extensively. However, it seems to be the case that a ‘working concept’ was created because after the year 2000 this subject is discussed much less in the academic literature.223 Only with the rise of computer software, did writers revisit the problems encountered in the idea/expression dichotomy.224
Therefore, due to the development of technologies and their “disruptive” nature, this dualistic nature of copyright should be reexamined to understand how copyright law can adapt to new technologies, such as brain-reading. Currently, copyright law cannot cope with these technologies that are this disruptive and are capable of touching the core of copyright protection, namely the idea/expression dichotomy.
4.6 Conclusion
This paragraph answers sub-question 3: “Which problems arise when the types of brain data are analyzed within the current Dutch and EU copyright law framework”?
Problems arise due to the impact new neuro-technologies have on the copyright framework. The copyright framework is based on the process where an idea is crystallized further by expressing it in a work. This process changes with the use of a BCI, because there is a hard translation of the idea into raw brain data. This creates uncertainty about what the unprotected
223 When searching for articles on the idea/expression dichotomy, the only substantial and useful articles are ones from before the year 2000: Mazurek (n 124); Kurtz (n 111); Karen Poston, ‘All Puff and No Stuff: Avoiding the Idea/Expression Dichotomy’ (1989) 9 Loyola Entertainment Journal 337; Lerina Saint Waltrip, ‘Copyright Law -The Idea/Expression Dichotomy: Where Has It Gone?’ (1986) 11 University of Limerick Journal 411; Edward Samuels, ‘The Idea-Expression Dichotomy in Copyright Law’ (1989) 321 Tennessee Law Review 321; Richard H Jones, ‘The Myth Of The Idea/Expression Dichotomy In Copyright Law’ (1990) 10 Pace Law Review 551. 224 These articles on the idea/expression dichotomy are written after the year 2000 but merely focus on the protection of computer programs by copyright. Ed Barker and Iona Harding, ‘Copyright, the Ideas/Expression Dichotomy and Harmonization: Digging Deeper into SAS’ (2012) 7 Journal of Intellectual Property Law & Practice 673; Jay Rubin, ‘Television Formats: Caught in the Abyss of the Idea/ Expression Dichotomy’ (2006) 16 Fordham Intellectual Property, Media & Entertainment Law Journal 661.
53 idea and the protected expression are and when a protectable concept arises. Raw brain data are not a work that can be protected by copyright, as what is perceived is merely data without any creative features. The creative and original content is captured inside the data, and becomes apparent when inferences are made from the raw brain data. In line with the discussion on the idea/expression dichotomy, however, it is strange to leave the idea that is the core of the work unprotected when it is already fixated in raw brain data. Therefore, protection should occur when the inferences on those raw brain data create a copyright protected work. Otherwise the creative data, that can be considered a concept, is free for all to use.
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Chapter Five
Conclusions
5.1 Conclusion
This chapter answers the central question of this research: “How do the current legal assumptions in Dutch and EU copyright law cause friction when applied to the protection of the types of brain data?”
This research is based on the future development of neuro-technologies and more specifically, the development of BCIs using an EEG. This research uses two main articles to assess the technology against the copyright law framework. These articles also provide a distinction used in the legal analysis. The first article focuses on brain-to-text conversion, where the text is created from memory or imagination. 225 The second article focuses on image reconstruction, where the end-product is based on visual perception.226 This end-product is created using BCI technologies. When dealing with BCIs, two types of brain data are distinguished. The EEG uses brainwaves to create the first type of brain data: raw brain data.227 These raw brain data are then interpreted by the BCI into inferences on raw brain data. These inferences on raw brain data are the end-product, which can be a text, photo or video.
These two types of brain data hold certain characteristics. These characteristics relate to how BCIs create a work from brainwaves. The EEG uses brainwaves, which contain an idea, to create a work. This work is based on the intellectual creation of the creator. In general, an intellectual creation can be protected by copyright. The question is whether the work created through this new process can also be copyright protected. This is a new process because when creating a work without a BCI, there is an iterative process between the idea and the expression, where the idea becomes clearer though the development of the expression. The idea never leaves the mind of the creator, because the expression is merely an abstraction of the idea.
Copyright law is based on the idea/expression dichotomy. This dichotomy creates a balance between providing incentives to create works that can be protected by copyright and
225 Zhang and others (n 8). 226 Nemrodov and others (n 9). 227 Jones, Schall and Shen (n 52) 227.
55 providing protection to the public domain so basic ideas can be used for new creations.228 The main assumption is that ideas cannot be protected, but expressions can be. However, as the expression is not merely the exact word of what the creation entails, uncertainty arises about to what extent an expression is protected.229 In this thesis, a third part of the process is distinguished that may receive protection: the concept. The dichotomy created between the idea and expression is not black and white. There is a grey area where the idea and expression are intertwined. The concept covers the grey area between the unprotected idea and the protected expression.
This grey area seems to grow as BCIs create a ‘disruption’ in the normal process of creation. Due to the ‘hard’ translation from brainwaves to raw brain data, the unprotected idea is fixated and seems to already enter the grey area that could be treated as the possibly protected concept. Thus, the scope of this grey area seems to grow with the use of neuro-technologies. The question is then whether this theoretical realization has any effect on the practical criteria used to consider whether a work is protected by copyright. Therefore, the third chapter ends by explaining the current framework for copyright law in the Netherlands and EU.
In the fourth chapter, these practical criteria for copyright protection are analyzed for brainwaves, raw brain data and inferences on raw brain data. Additionally, brain data received from imagination or memory and visual perception are distinguished. Based on the criteria for copyright protection, it becomes clear that raw brain data most probably cannot be protected under this current system, as it is merely data and the intellectual creation cannot be perceived. The inferences on raw brain data can be protected because these inferences are either a text, photo or movie, which are a form that is protectable. The difference in analysis between memory or imagination and visual perception lead to the same conclusion, but are based on different arguments. For memory and imagination, the threshold for originality and creativity is more easily met, as imagination is based on the creativity and thus originality of the creator. One may argue that a memory could be considered not original. However, human brains always make assumptions, which lead to false memories and can lead to originality.230 The visual perception can be considered unoriginal as it is a mere replica of what one sees. However, the interplay between the eyes and the brain is not one-on-one. While creating visual perceptions, one constantly makes inferences about what is seen. This manifests in visual illusions, where unconscious and unavoidable assumptions lead to false interpretation.231 This means that every individual perceives the same view in a different
228 Kurtz (n 111) 1233. 229 ibid 1255. 230 Quian Quiroga (n 190) 229. 231 ibid.
56 manner. These inferences and assumptions are based on subjective 232 and objective 233 differences between individuals. Therefore, even brain data received from visual perception can be considered original and protectable.
In order to protected brain data, a distinction needs to be made between raw brain data and inferences on raw brain data. The inferences on raw brain data that lead to a work that can be copyright protected may lead to the protection of raw brain data. It is then important to protect only those raw brain data that are the source of the inferences, because they are the source of the creation. That is exactly where the commercial value of the brain data lies and why it should be protected. The source of the creation is that what is of value for the individual.
Certain assumptions mentioned in this research are thus necessary to undertake the analysis, but also lead to problems. Copyright is a well-developed system, but friction in the protection can arise. Both Dutch and EU copyright law are based on the same assumption, that the idea/expression dichotomy is a functional concept. This means that when following the positive laws, creations through an EEG are protectable. However, taking the analysis a step further, the practical effects of such a protection lead to an important gap in protection. This gap arises due to the current understanding of the idea/expression dichotomy. However, based on the findings in this research, this distinction between the idea and expression can better be seen as a spectrum, instead of a dichotomy. This is how the current assumptions in legal doctrine cause friction when applied to brain data.
The individual requirements of copyright law do lead to a working definition that can be applied to new technologies. However, the heart of copyright law, the idea/expression dichotomy, does not adapt well. In the past, the legal doctrine developed in the literature and case law was deemed appropriate to apply copyright law practically, but based on the findings of this research, it will not stand much longer when confronted with these neuro-technologies.
5.2 Critics and Limitations
The initial idea of this thesis was to find a way to protect all brain data, either by using the current copyright framework or otherwise by creating a new framework. However, during this process certain problems arose which could not easily be addressed, such as the uncertainty regarding the idea/expression dichotomy. After realizing that these problems were truly complicated, the aim of this thesis changed. Thus, this thesis does not provide a
232 Bruton (n 35) 282. 233 Richmond, Rees and Edwards (n 212) 60; Liu, Fuller and Carrasco (n 40) 1093–1094; Fuller and Carrasco (n 40) 4042–4044.
57 solution, it provides an overview of the problems found when copyright law is applied to brain data.
Furthermore, an important limitation to this research is that it covers a technology that is not developed to the point where it can accurately depict what is happening in the brain on a screen. This means the assumption that consumer wearable headset will become wide-spread popular may be erroneous.
Additionally, it should be critically assessed whether an extension in the scope of protection of copyright law should take place due to the criticism found in Dutch literature, that copyright law is become a lengthening piece of privacy. This criticism is based on the Endstra case, which is a case that plays a big role in this thesis.234
Lastly, the idea/expression dichotomy is a very complicated concept that will not easily be transformed in a new work-able notion for new technologies.
5.3 Recommendation
Both Dutch and EU legislators should be aware of new disruptive technological advances. The development of neuro-technologies and their consumer application need the protection that can be found in copyright law. However, the idea/expression dichotomy found in copyright law prevents this. It is thus necessary that this dichotomy, which has found a working format, be revisited and adapted to new technologies to come. This will ensure appropriate protection where copyright does not lose its essential place in society. Additionally, a clarification of the boundaries of copyright protection would be essential to understand when and where raw brain data may be protected. The proposed solution would create clear boundaries, where raw brain data is only protected when the inferences are a work that is protected. This is important, since raw brain data are the source of the creation of the end-product that can be copyright protected.
234 Hugenholtz, ‘De Endstra-Tapes’ (n 142) 820; Bernt Hugenholtz, ‘Auteursrecht Op Alles’ [2007] Nederlandse JuristenBlad 1–2
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Appendices
Figure 1 – An example of raw brain data (retrieved from http://sisec2010.wiki.irisa.fr/tiki- index2574.html?page=Artifact+removal+in+EE G+data accessed 10 January 2018).
Figure 2 – The process of brain-to-text conversion (created by author).
Figure 3 – The iterative process where the initial idea Idea Expression changes based on the development of the expression (created by author).
Figure 4 – The process of idea to expression (created by author).
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Bibliography
Books and Articles
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Tables of Legislation
Table of legislation – The European Union
Database Directive Council Directive 96/9/EC of 11 March 1996 on the legal protection of databases [1996] OJ L77/2 Information Society Council Directive 2001/29/EC of 22 May 2001 on the Directive harmonisation of certain aspects of copyright and related rights in the information society [2001] OC L 167 Software Directive Council Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs. It, however, could be qualified as a work. Nevertheless, no protection could arise where the expression of the components of the graphic user interface was dictated by their technical function General Data Council Regulation (EU) 2016/679 of 27 April 2016 on the Protection Directive protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L119/1
Table of legislation – The Netherlands
Dutch Copyright Act Auteursrecht, 23 September 1912, stb, 1912
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Tables of Cases
Table of Cases – Court of Justice of the European Union
C-203/02 The British Horceracing Board and Others [2004], I-10415 C-302/10 Infopaq International v. Danske Dagblades Forening [2009] ECR I-06569 C-393/09 Bezpecnostnı ´ softwarova´ asociace - Svaz softwarove´ ochrany v Ministerstvo kultury [2010] ECR I-13971 C-403/08 Football Association Premier League v. QC Leisure and Karen Murphy v. Media Protection Services [2011] ECR I-09083 C-145/10 Eva-Maria Painer v. Standard VerlagsGmbH [2011] ECR I-12533. C-604/10 Football Dataco v. Yahoo! [2012] ECR I-000.
Table of Cases – Dutch Supreme Court (Hoge Raad)
HR 28 June 1946, NJ 1946/712 (Gelder/Van Rijn) HR 4 January 1991, ECLI:NL:HR:1991:ZC0104 (Van Dale/Romme) HR 29 December 1995, NJ 1996/546, (Decaux/Mediamax) HR 29 November 2002, ECLI:NL:HR:2002:AE8456 (Una Voce Particolare) HR 24 February 2006, ECLI:NL:HR:2006:AU7508, (Technip/Goossens) HR 16 June 2006, ECLI:NL:HR:2006:AU8940, (Kecofa/Lancôme) HR 30 May 2008, ECLI:NL:HR:2008:BC2153 (Endstra-tapes) HR 22 February 2013, ECLI:NL:HR:2013:BY1529 (Stokke/H3)
Table of Cases – Lower Dutch Courts
RB Gelderland 10 June 2015, ECLI:NL:RBGEL:2015:4674, (Levola Hengelo BV/Smilde Foods BV) RB Den Haag 3 May 2017, ECLI:NL:RBDHA:2017:4384, (Levola Hengelo BV/Smilde Foods BV
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Opinion of the Advocate General CJEU
C-310/17 Levola Hengelo Bv v Smilde Foods BV [2018] Opinion of AG Wathelet
Websites
BrainCo: https://www.brainco.tech/ Britannica https://www.britannica.com/science/retina CSOonline: https://www.csoonline.com/article/3239969/security/company- with-no-privacy-policy-to-collect-brainwave-data-on-1-2-million- students EEG measurement http://sisec2010.wiki.irisa.fr/tiki- (Figure 1) index2574.html?page=Artifact+removal+in+EEG+data EEGSmart: https://www.youtube.com/watch?v=DqeVNt5kK98 Emotiv: https://www.emotiv.com/myemotiv/ MUSE: http://www.choosemuse.com/ NeuroSky: http://neurosky.com/
Miscellaneous
Keynote Speech Kuneva, M, European Consumer Commissioner Keynote Speech [2009] http://europa.eu/rapid/press-release_SPEECH-09- 156_en.htm Hearing notes Hearing notes by Tobias Cohen Jehoram and Syb Terpstra in the case C-310/17 Levola Hengelo BV v Smilde Foods BV [2018], https://www.boek9.nl/system/files/B92018/B920180604%20Spree kaantekeningen%20Smilde.pdf
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