4 | 2017 Volume 8 (2017) Issue 4 ISSN 2190-3387 Editorial: A Christmas Gift by Séverine Dusollier Designing Competitive Markets for Industrial Data – Between Propertisation and Access Law and Electronic Commerce Information Technology, Intellectual Property, Journal of by Josef Drexl From Cyberpunk to Regulation – Digitised Memories as Personal and Sensitive Data within the EU Data Protection Law by Krzysztof Garstka Copyright, Doctrine and Evidence-Based Reform by Stef van Gompel Non-Commercial Quotation and Freedom of Panorama: Useful and Lawful? by Eleonora Rosati Where is the Harm in a Privacy Violation? Calculating the Damages Afforded in Privacy Cases by the European Court of Human Rights by Bart van der Sloot Editors: Thomas Dreier Axel Metzger Gerald Spindler Lucie Guibault Miquel Peguera www.jipitec.eu Séverine Dusollier Chris Reed Karin Sein Journal of Intellectual Property, Information Technology and Electronic Commerce Law Table Of Contents Volume 8 Issue 4 December 2017 www.jipitec.eu [email protected] A joint publication of: Articles Prof. Dr. Thomas Dreier, M. C. J., KIT - Karlsruher Institut für Technologie, Zentrum für Angewandte Rechtswissenschaft (ZAR), Vincenz-Prießnitz-Str. 3, Editorial: A Christmas Gift 76131 Karlsruhe Germany by Séverine Dusollier 255 Prof. Dr. Axel Metzger, LL. M., Humboldt-Universität zu Designing Competitive Markets for Industrial Data – Between Berlin, Unter den Linden 6, Propertisation and Access 10099 Berlin by Josef Drexl 257 Prof. Dr. Gerald Spindler, Dipl.-Ökonom, Georg-August- From Cyberpunk to Regulation – Digitised Memories as Personal Universität Göttingen, and Sensitive Data within the EU Data Protection Law Platz der Göttinger Sieben 6, by Krzysztof Garstka 293 37073 Göttingen Copyright, Doctrine and Evidence-Based Reform Karlsruhe Institute of Technology, by Stef van Gompel 304 Humboldt-Universität zu Berlin and Georg-August-Universität Non-Commercial Quotation and Freedom of Panorama: Göttingen are corporations under Useful and Lawful? public law, and represented by their respective presidents. by Eleonora Rosati 311 Editors: Where is the Harm in a Privacy Violation? Thomas Dreier Calculating the Damages Afforded in Privacy Cases by the Axel Metzger European Court of Human Rights Gerald Spindler Lucie Guibault by Bart van der Sloot 322 Miquel Peguera Séverine Dusollier Chris Reed Karin Sein Board of Correspondents: Graeme Dinwoodie Christophe Geiger Ejan Mackaay Rita Matulionyte Giovanni M. Riccio Cyrill P. Rigamonti Olav Torvund Mikko Välimäki Rolf H. Weber Andreas Wiebe Raquel Xalabarder Editor-in-charge for this issue: Séverine Dusollier Technical Editor: Philipp Schmechel ISSN 2190-3387 Funded by Séverine Dusollier Editorial A Christmas Gift by Séverine Dusollier, Professor, Law School, SciencesPo Paris. © 2017 Séverine Dusollier Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Séverine Dusollier, Editorial: A Christmas Gift, 8 (2017) JIPITEC 255 para 1. 1 What could be a better Christmas gift than an extra is already provided by existing laws. Amongst the issue of JIPITEC? Yes, you are not dreaming, you have existing forms of protection, the article analyses in hands (or on your screen), a fourth issue of your sui generis protection in databases, trade secret favorite online journal, instead of the usual three per protection, patent right, unfair competition law, a year. What else could you wish for, than spending ‘digital’ property right, or factual and contractual the holidays curled up in your comfy armchair by the protection. Then it turns to potential economic fire, with a cup of tea, coffee, or a glass of wine on the justifications for recognising data ownership, but has table, with your clients, students, and colleagues out difficulty in finding any that would be convincing. of your mind until January, and finally some time to Therefore, Drexl argues against the creation of a new read scholarly articles in your field. system of data ownership. As to whether competition law could enhance better access to data, a thorough 2 One of the biggest pieces (not of cake, that will come analysis of the EU competition case law reveals its later) of this new issue is no doubt Josef Drexl’s article many shortcomings as regards the data economy, on ownership of data. Drexl is looking at the (once due to its very dynamic nature. Instead the article announced, then possibly left aside - for the time pleads for state intervention to promote access to being at least) project of the European Commission data, interoperability and portability, where public to adopt some legal protection for big data, in the interest considerations should play a key role. form of an exclusive property right or other form of regulation, ensuring some control over data in order 4 After such an intense reading, allow yourself a break to make data economy thrive (or so they say). The to play with the new console your child received EU ‘Free Flow of Data’ initiative was indeed ignited from Santa. When she has humiliated you (despite by a Communication that planned to address the the fact that you were the best Mario Bros player issues of ownership and access to data. The specter of in your class as a teenager), it would be a good time commodification of data, which was already fought to come back and read the not-so-unrelated article against 20 years ago, when the sui generis right in by Krzysztof Gartska on digitised memories as databases was discussed, is coming back. Although personal and sensitive data, drawing on the fictional the ‘Free Flow of Data’ draft Regulation published setting of a video game entitled Remember Me, a few weeks ago seems to exclude property rights, that imagines a world in which human memories it is not certain that it will not eventually return in can be digitised. Not only your online movements, some form or another. consumptions, communications, and interactions are recorded and processed by commercial entities, 3 Drexl’s paper extensively reviews how the data your memories could now be turned into assets too. should be regulated, looking at the issues of data In this science-fiction world (or perhaps a forecast ownership and access to data. The paper begins by into the future), are such digitised memories to be pondering whether the question of ownership should considered as personal data and what would that be raised at all, and what the economic justification mean? When memories can be stored, shared, would be to add more protection over data than what erased, or even hacked, issues of data processing 4 255 2017 Editorial and security abound. This very exploratory article empirical study will come easy for you. Based on a analyses some of them, most notably the possible study of around 1000 decisions of the European Court qualification of digitised memories as personal data of Human Rights, this paper looks at whether and and as sensitive data for the purposes of the GDPR. how harm is compensated and damages awarded Gartska’s conclusion is that the definitions laid down in privacy cases. The assessment is based upon by the GDPR are sufficiently technology-neutral to different factors, such as the country against which address any type of personal data, including what the complaint is directed, the type and number of could come in the future, and already illustrated by applicants, the type of damage that is compensated, dystopian games and narratives. the type of privacy at stake, and the ground on which a violation is established, each of which resulting in 5 Science-fiction pieces like that are fun, but evidence- statistical information and analysis thereof. Among based scholarship equally carries virtue. This is what the findings of the paper, one can see that in most Stef van Gompel’s article posits; deploring, as many cases in which a violation of article 8 ECHR has been others, what copyright lawmaking has become, he found, damages were awarded, including for non- explores how a traditional doctrinal approach, which pecuniary damages, but for relatively small figures. looks at formal consistency and legal-theoretical The compensation of non-pecuniary damages has foundations, could gain from evidence-based policy also increased over time. The amount of awards supported by empirical research. To that end, the unexpectedly appears to depend upon the country two approaches’ strengths and weaknesses are that is held liable, or the type of privacy violation, assessed and a number of concrete recommendations as well as upon the section of Court delivering the are given to lawmakers, notably the need to remove decision, or the type of persons complaining of a unnecessary and unproven affirmations, such as the violation (prisoners and migrants having been mantra of the need for a high protection of authors, awarded more limited amounts of money). Van der that says nothing of how it would lead to a better Sloot’s paper joins a promising line of research based copyright, or the liberation from international on empirical and statistical evidence that could copyright norms, seen as imperatives that cannot nourish our legal knowledge in privacy, intellectual be changed. Additionally, van Gompel suggests property, and any other IT-related topic, which to include doctrinal principles related to social JIPITEC would be pleased to publish in the future. and fairness objectives among the evidence to be considered, and not to confine the deliberations 8 The JIPITEC editorial team wishes you a very happy about how copyright should be designed to economic holiday and a fruitful year 2018. For those of you, who evidence. To such end, all positions, from creators have deservedly spent the holiday without looking and rightholders to users and the public at large, at your emails or internet and who only open this should be considered without letting one prevail new issue coming back to work in January, we hope over another.