The Luxembourg Space Resources Act and International Law

By Charles Bjork

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Image courtesy of Wikipedia commons.

Among the most intriguing and eagerly anticipated presentations at the 2018 Annual Course of the International Association of Law Libraries was a lecture by Professor Lorenzo Gradoni, a Senior Research Fellow at the Max Planck Institute for Procedural Law, on Luxembourg’s recently enacted Space Resources Act and whether or not it is in conflict with international law governing the use of outer space.  Sadly, Professor Gradoni had to cancel at the last minute, and there was not enough time to locate a replacement speaker.  Paul Mousel, a founding partner of the law firm Arendt & Medernach, who spoke about the practice of law in Luxembourg, was kind enough to provide the conference delegates with some background information that helped to explain how Luxembourg improbably became a pioneer in the field of space law.  Time constraints precluded Mr. Mousel from discussing the new Space Resources Act in detail.  Since the topic is of interest to me, I decided to do some research on my own.  What follows is a summary of the context provided by Mr. Mousel, along with my own findings about the origins of Luxembourg’s Space Resources Act and whether it is compatible or in conflict with the multilateral treaties that govern the use outer space.

Although few people today think of Luxembourg as an industrial powerhouse, it was one of Europe’s largest steel producers from the middle of the 19th century until the last quarter of the twentieth century.  The energy crisis of the 1970s accelerated the decline of Luxembourg’s steel industry.  As it became apparent that most steel production eventually would shift to lower-cost jurisdictions, Luxembourg began looking for ways to diversify its economy.   Banking and financial services offered one path.  The emerging field of satellite-based communications and broadcasting offered another.  The Cold War between the United States and the Soviet Union provided the impetus for the development of artificial satellites.  As with other technologies originally developed for military purposes, it wasn’t long before civilian applications began to emerge.

To better understand how Luxembourg managed to establish itself as a center for the satellite communications industry, some background information on satellite operations will be helpful.  Most communications satellites operate in a geostationary orbit, directly above the Earth’s equator, following in the direction of the Earth’s rotation.  From the ground, a satellite in such an orbit appears to be motionless, occupying a fixed position in the sky.  A ground-based antenna can communicate with the satellite simply by pointing to that fixed position without having to rotate back and forth to track the satellite’s movement.  There are two main limitations on the use of geostationary orbits by communications satellites.  First, only a finite number of satellites can safely operate within the relatively narrow band above the Earth’s equator.  Second, the number of radio frequencies that can be used to communicate with satellites operating within a geostationary orbit also is limited.  These frequencies must be allocated for use on an exclusive basis in order to prevent one satellite operator’s transmissions from interfering with another operator’s transmissions.

The entity responsible for allocating the limited number of orbital positions and radio frequencies available for satellite broadcasting is the International Telecommunications Union (ITU), a specialized agency of the United Nations.  For each of its member states, the ITU set aside a fixed number of geostationary orbital positions, as well as a fixed number of uplink and downlink frequencies for communicating with satellites operating in geostationary orbit.  National telecommunications regulators, such as the Federal Communications Commission in the U.S., may assign these orbital positions and frequencies to public or private entities operating within their respective jurisdictions.  If there are no entities capable of using the orbital positions and frequencies allocated to a particular ITU member state, those positions and frequencies remain available for the use of entities based outside the jurisdiction on a “first come, first served” basis, subject to the oversight of the ITU.

Just as its steel industry was contracting, Luxembourg suddenly found itself in possession of two potentially lucrative assets:  geostationary orbital positions for satellites to occupy and radio frequencies for communicating with the satellites occupying those orbital positions.  As Mr. Mousel explained, Luxembourg’s location on the border between France and Germany makes it ideally situated to transmit satellite broadcasts to most of Europe’s largest television markets.  The only thing Luxembourg needed to take advantage of this opportunity was a domestic satellite operator.  If no domestic satellite operator emerged, Luxembourg risked losing its ITU-allocated orbital positions and radio frequencies to foreign entities willing to claim them.

At that time, in the early to mid 1980s, the only satellite operators in Europe were state-owned broadcasters.  Lacking the resources and technical expertise to develop a state-owned champion of its own, the government of Luxembourg decided to offer seed money to subsidize the establishment of a privately-owned satellite company.  It was approached by Clay T. Whitehead, an American who had worked in the Nixon administration as the first director of the Office of Telecommunications Policy, and who later helped Hughes Aircraft to launch its satellite subsidiary.  In exchange for the seed money, the assignment of the requisite orbital positions and radio frequencies, and the right to broadcast television directly into viewers’ homes, Whitehead agreed to base his new company in the Grand Duchy and allow its government to take a minority stake in the business.  Thus was born Société Européenne des Satellites (SES), Europe’s first privately-owned satellite operator.

Luxembourg’s gamble on SES soon paid off.  In 1988, just three years after it was founded, SES launched its first satellite, the Astra 1A, into geostationary orbit, which enabled it to enlist as clients many of the key players in Europe’s emerging satellite television industry, including the German broadcaster RTL and Rupert Murdoch’s Sky TV.  Thirty years later, SES operates more than 50 geostationary satellites and is among the world’s leading providers of satellite-based video and data connectivity services.  The government of Luxembourg has retained its minority stake in the company.

With the enactment of its Space Resources Act in 2017, Luxembourg hopes to build on its success in the field of satellite communications and establish itself as a center for what many observers anticipate will be the next chapter in the commercial development of outer space: mining.  Long before scientists confirmed that the Moon, certain types of asteroids, and other celestial bodies contain rich deposits of precious metals and minerals, Hollywood screenwriters had envisioned a future in which humans would turn to space to replenish the Earth’s depleted resources.  As private enterprises continue to play a larger role in space exploration, it is only a matter of time before the commercial extraction of resources from outer space moves from the realm of science fiction to reality.

The most valuable space commodity – at least during the initial stages of commercial development – may not be platinum or other precious metals, but ice.  In addition to being melted to provide drinking water for astronauts, ice can be broken down into its component parts, hydrogen and oxygen.  The former can be converted into fuel, while the latter is essential for human respiration.  If ice mined in space can provide a reliable source of drinkable water, breathable air, and fuel, it would no longer be necessary to transport those essential resources from the Earth, making space exploration and long-term human habitation in space more viable and less costly than they are now.  Moreover, if communications satellites can be refueled in mid-orbit with fuel derived from hydrogen locked in space ice, it would dramatically extend their useful lifespans and significantly reduce the amount of hazardous space debris.

Even as technological advances bring space mining closer to reality, investors in companies seeking to extract resources from outer space will be reluctant to move forward without legal clarity on the ownership of such resources.  It was the United States, not Luxembourg, that took the first step in creating a legal framework for the recognition of property rights in space resources.  On November 25, 2015, Congress enacted the Space Resource Exploration and Utilization Act (SREUA) as part of the larger Space Launch Competitiveness Act.  The SREUA defines a “space resource” as any abiotic resource, including water and minerals, in situ in outer space.  It also defines an “asteroid resource” as a space resource found on or within a single asteroid.

Section 51303 of the SREUA states that any U.S. citizen engaged in the commercial recovery of an asteroid resource or a space resource is entitled “to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.”  The term “U.S. citizen” is defined to include 1) an individual who is a citizen of the U.S.; 2) a business entity organized under the laws of the U.S., or the laws of any U.S. state; or 3) a business entity organized under the laws of a foreign jurisdiction, provided that a controlling interest in the business is held by an individual or entity described in 1) or 2) above.  In other words, the SREUA’s recognition of property rights in resources extracted from outer space applies only to individual American citizens, American-based business entities, and the foreign subsidiaries thereof.

Luxembourg became the second country, and the first in Europe, to establish a legal framework for the ownership of resources extracted from outer space with the passage of its Space Resources Act, which entered into force on August 1, 2017.  Like its American counterpart, the Luxembourg statute explicitly recognizes a property interest in resources extracted from outer space.  However, there are two critical difference that set Luxembourg’s Space Resources Act apart.   First, the Luxembourg statute establishes an accreditation and licensing regime for entities seeking to engage in space mining.  Only entities that have applied for and received a license for their space mining activities may assert an ownership interest in the resources extracted.  Second, the Luxembourg statute does not include a nationality clause.  Any corporation, limited partnership or limited liability company established under Luxembourg law, or any European company with a registered office in Luxembourg, may submit an application for accreditation and licensing.  It doesn’t matter who owns or controls the entity submitting the application.  As long as the entity is established under Luxembourg law, or is a European company with a registered office in Luxembourg, it may submit an application.

Luxembourg has a long history of enacting tax loopholes and less burdensome regulatory regimes to entice multinational enterprises to establish foreign subsidiaries within its borders.  Critics refer to these foreign subsidiaries, created solely for the purpose of tax and regulatory arbitrage, as “letterbox companies.”  The Space Resources Act is meant to lure start-ups, not established multinationals.  It draws its inspiration from the seed money the Grand Duchy provided to launch SES, Europe’s first privately-owned satellite operator.  In fact, even before the Space Resources Act entered into force, the government of Luxembourg established a €200 million Space Fund for making strategic investments in fledgling companies that aspire to be space mining pioneers.  To date, the Space Fund has invested in half a dozen mostly American start-ups, including Seattle-based Planetary Resources and San Jose-based Deep Space Industries.  Once they establish subsidiaries in Luxembourg, these start-ups will be able to apply for space mining licenses under the Space Resources Act.

Are Luxembourg’s Space Resources Act and its American counterpart compatible with the multilateral conventions that govern outer space?  No treaty provision directly addresses the private ownership of space resources.  The most relevant provision is article II of the Outer Space Treaty, which states that “[o]uter space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”  Some scholars have interpreted this provision to preclude the private ownership of resources extracted from outer space.  The more widely accepted view is that article II only prohibits nation states from asserting their sovereignty over celestial bodies and does not prevent private parties from claiming ownership of extracted resources.  Supporters of space mining often make an analogy to deep seabed mining, which is permitted under the Law of the Sea Convention, or to fishing boats operating in international waters, which claim ownership of the fish they catch without asserting a property interest in the ocean.

The ownership of extracted resources is by no means the only legal issue that must be resolved for space mining to become a reality.  Private enterprises will be reluctant to begin prospecting in space unless they are reasonably certain that they will have an exclusive right to extract the resources that they discover.  How will companies assert their right to extract resources from a particular celestial body?  Will there be a space mining registry?  If so, who will administer it?  Will companies need to establish a physical presence on a celestial body before they can assert a mining claim?  How will the scope and duration of such claims be determined if nation states cannot assert sovereignty over celestial bodies?  How will companies prevent competitors from interfering with their mining claims?  Neither the Luxembourg Space Resources Act nor its American counterpart address any of these thorny questions, and it is highly unlikely that such matters can be satisfactorily resolved through domestic legislation.

Recognizing the need for international cooperation, the Hague Institute for Global Justice, an independent think tank, established the Hague Working Group on Space Resources in 2014.   The Working Group consists of a geographically diverse collection of stakeholders, including government agencies, non-governmental organizations, academic institutions, and industry representatives.  Its goal is to identify the building blocks for developing an international framework to govern the use of space resources.  This framework will provide a basis for negotiating a new international legal agreement on space resources or, if that is not feasible, for the development of soft law instruments that will serve the same purpose.  The Working Group completed its initial round of meetings on December 18, 2017, and issued this progress report.  The second round of meetings began in January.  The most recent meeting was held at the end of November.  Appropriately enough, it took place in Luxembourg.

 

Suggestions for further reading:

Atossa Araxia Abrahamian, How a Tax Haven Is Leading the Race to Privatize Space, The Guardian (July 15, 2017), https://www.theguardian.com/news/2017/sep/15/luxembourg-tax-haven-privatise-space.

Chelsey Davis & Mark J. Sundahl, The Hague Working Group on Space Resources:  Creating the Legal Building Blocks for a New Industry, 30 Air & Space L 7 (2017).

Rachel Mitchell, Note, Into the Final Frontier:  The Expanse of Space Commercialization, 83 Mo. L. Rev. 429 (2018).

Jinyuan Su, Legality of Unilateral Exploitation of Space Resources Under International Law, 66 Int’l & Comp. L. Q. 991 (2017).

Space Resources Luxembourg (official government website).

Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace, 674 Journal Officiel du Grand-Duché de Luxembourg, July 28, 2017, p. 1.

U.S. Space Resource Exploration and Utilization Act, 51 U.S.C. §§51301 et seq.
U.S. Space Launch Competitiveness Act, P.L. 114-90, 129 Stat. 704.

IALL 2018 Recap: Traditional Cultural Expressions and International Intellectual Property Law

By Joan Policastri

Dr. Lily Martinet of the Max Planck Institute in Luxembourg began by giving a brief description of what is included in Traditional Cultural Expression (TCE) and how it intersects with Intellectual Property (IP) Law.  While historically TCE has been associated with copyright law, developments within the United Nations have evolved the concept to meet with ideas from human rights, intellectual property law, and cultural law. Another aspect of this evolution is the sourcing of ideas originating in anthropology that are now being incorporated into law. The documents which have brought these together are The Convention on the Protection and Promotion of the Diversity of Cultural Expression (2005), The United Nations Declaration on the Rights of Indigenous Peoples (2007), and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

While there is no accepted definition of TCE in international law, Dr. Martinet uses this: “tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested. Examples include traditional music, performances, narratives, names and symbols, designs and architectural forms.”

The Key characteristics of TCE are: 1) cultural content, 2) a collective essence, which can include groups, tribes, nations, or other communities, but not an individual, and 3) intergenerational transmission. Cultural expressions result from the creativity of individuals, groups and societies, and that have cultural content. Cultural content refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities (Art. 4 of the Convention on Diversity of Cultural Expression).

In order to complete the picture, the diagram below shows the intersection of TCE and Traditional Knowledge. The overlap is Intangible Cultural Heritage.

IPLaw1

Some examples of TCE include the Māori Tā moko patterns, patterns used in Alençon Lace (an example of intergenerational transmission), and Champagne. Other topics raised were the registration of dance moves as cultural expressions, or the series of postures in Bikram Yoga.

Slides provided visual experiences of these expressions, including this example of “Misuse of Traditional Cultural Expressions” of the Tā moko patterns. Ironically, colonial governments once banned tattoo use by the traditional peoples who created them, but now indigenous designs are being exploited by commercial interests.

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The current situation was described as a quagmire and existing legal instruments have rarely been applied in practice. Dr. Martinet gave three reasons why laws need to be elaborated:

1) The misuse/appropriation of the expressions. While there might be an element of public domain, the central issue is that traditional peoples are not consulted prior to the use of their expressions, the benefits of the use are not shared with the originators, and the commercial users do not acknowledge the source(s). These practices lead to unfair and unethical uses.

2) Distortion. The commercial users appropriate the symbol without its meaning, without understanding the values it expresses, and denigrate the expression. Tā moko are not simply designs and true Tā moko are not superficial. Tā moko are about identity and they are carved into the skin.

3) The non-traditional users may claim a right in the expression. For example, a tattoo artist claimed royalties in a design and used the claim against the indigenous people who originated it.

An interesting question was raised concerning what could be considered historical appropriations such as Claude Monet’s use of Japanese style in his painting, “The Japanese Footbridge and the Water Lily Pond” (1899).

The core issue is the Community’s right to protect its cultural expressions; to preserve the dynamic development of cultures. But will the laws stifle freedom of expression? Dr. Martinet believes that finding a good balance is the key.

For more information on Intangible Cultural Heritage, see https://dpc.hypotheses.org/category/the-osmose-program-english-version. It references the Indian Arts and Crafts Act in the United States.

IALL 2018 Recap: Special Features of Luxembourg Law, such as its Sources

By Jessica Pierucci

This year’s IALL Annual Course was hosted in the country of Luxembourg.  On October 1, 2018, attendees were treated to a fantastic discussion of special features of Luxembourg law by Gilles Cuniberti, Professor of Private International Law and Comparative Law at the University of Luxembourg. This recap summarizes these fascinating details of the laws of this small European country.

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Professor Gilles Cuniberti discusses special features of Luxembourgish law.

Luxembourg is a civil law jurisdiction, meaning that codes and non-codified statutes are the county’s primary source of law. Case law, while not an official source of law, nevertheless plays an important role in practice. Academic writing is also highly influential.

Luxembourg is a small jurisdiction. As of 2018, the county’s population of about 600,000 residents includes only 313,000 nationals. As of December 2017, the country’s judiciary includes a total of only 249 judges. Accordingly, the country has limited institutional capacity in the court system, so there are frequently few or no Luxembourg cases to refer to on a given topic.

Luxembourg was a French province until 1815 and, as such, Luxembourg law is primarily grounded in the Napoleonic codes. Although France has since reformed many of its laws, there has not been a strong desire or institutional capacity in Luxembourg to make the same reforms. As a result, understanding the law can sometimes require turning to old pre-reform French law books to help understand and interpret the current law of Luxembourg.

While much Luxembourg law is borrowed, Luxembourg uses its institutional capacity for law making in two key ways: First, to comply with international obligations and implement EU legislation and, second, to create innovative laws in banking and finance and in space law. Luxembourg is a prominent finance capital and the richest state in Europe. The space industry is a current state priority, leading to the proliferation of laws to implement this priority.

Academic literature is highly influential in the Luxembourg legal system. Luxembourg did not have its own university until the University of Luxembourg was established in 2003. As a result, judges and lawyers received their training abroad, frequently in France and Belgium, so French and Belgian scholarship is frequently cited in cases. Further, judges only practice law for two years after law school before becoming judges and often turn to academic writing, frequently from the country where they studied, to help them decide cases, particularly those based on imported law. In recent years, the Belgian influence has waned and it’s possible that, as the University of Luxembourg matures with more scholarship on Luxembourg law produced by law professors in Luxembourg, the French influence could wane with it. But given that masters programs are generally not offered in Luxembourg and university students at the University of Luxembourg are all required to partake in an Erasmus semester studying abroad, among other factors, the French influence is likely to remain for the foreseeable future.

While Luxembourg is a civil law jurisdiction, case law has recently played a greater role in the Luxembourg legal system despite not being an official source of law. Judges frequently follow Belgian courts for commercial law and consider French cases generally authoritative. One example is tort law, which is an almost entirely judge-made area of law in France and that is all but missing from the codes. Luxembourg courts typically follow French torts cases, with two notable exceptions. France has rejected acceptance of risk and personal immunity of employees, but Luxembourg still has these two elements of tort law.

The worldwide influence of French case law, including on Luxembourg, may be the result of two key factors. First, judges of many Francophone countries were educated in France because the county is generally considered prestigious and welcoming, but Russia, China, and other countries are becoming more welcoming, so it’s possible this could shift in coming years. Second, the French encyclopedia Juris Classeur (LexisNexis) is available electronically and has almost become authoritative in Luxembourg, allowing an exhaustive and detailed understanding of French law.

Ultimately, Luxembourg is a small civil law jurisdiction that has imported much of its law and continues to rely on the laws of other countries in numerous ways, but the country is slowly shaping its own legal tradition as it has done with business and finance, and space law.

IALL 2018 Recap: Robot Law

By Mike McArthur

We were privileged to hear Ms. Mady Delvaux-Stehres of the European Parliament provide some insight into the recent discussion and drafting of the report on Civil Law Rules on Robotics. Since she and the other members of the working committee didn’t have backgrounds in robotics, they relied on a team of specialists to get them up to speed. After about a year of work, she began drafting of the report.

The first issue the committee needed to address was the definition of robot they would use in the report. They wanted to encompass the wide application of uses, but ultimately excluded robots used for military application, as that would have ushered in a whole other level of considerations.

Ms. Delvaux-Stehres outlined 5 major themed challenges that faced the committee:

(1) Safety and security, encompassing cyberhacking and cybersecurity, are the most critical issues for the European Union.

(2) Data protection and privacy is still a concern, even with GDCP in force. She explained that it is yet to be seen how effective this new law will address advances in AI.

(3) Ethical considerations related to reliability, transparency, accountability and fairness are also a concern. So much data is fed into the system with machine learning, but there still needs to be a way to determine how reliable the results are. This process often happens in a black box, though, and the more the committee delved into the topic, the more questions that seemed to emerge.

(4) Jobs and skills are being impacted as well. The committee were not concerned about the winners, but were concerned about how society would take care of the losers. Education is effective but slow and there are still many resistant to change. On a side note, she mentioned she introduced the idea of taxing robots, but it was quickly dismissed by a majority of representatives.

(5) Finally, specialists from a broad range of disciplines would need to be brought into the discussion, and they could not just rely on computer scientists. Examples she provided included lawyers and philosophers.

The talk then pivoted to issues related to liability. The current framework has limitations and the definitions are insufficient per Delvaux-Stehres. Using an autonomous car as an example, she mentioned that the types of damage that could occur far exceed the main category of product liability, namely defective products, and even that is narrowly defined. Summing up the government’s responsibility, she further explained that increasingly sophisticated products will require a very large safety net.

Further issues that the committee discussed included the question of obligatory insurance, which would be challenging to set rates for due to a lack of available data. Also, the concept of e-personality, or evolving algorithms, and whether liability would be assigned to the developer. And lastly, the speaker concluded by positing a few rhetorical questions. How do we need to change to make sure that AI will not just benefit the wealthy few, but society at large? How can we limit and control the mega-tech companies? Definitely topics that would require entire conferences of their own.

IALL 2018 Recap: Introduction to the Legal System of Luxembourg and Its History

By David Isom

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Professor Jörg Gerkrath of the University of Luxembourg speaks at IALL 2018.

Fittingly, the opening session of the 2018 IALL Annual Course was an “Introduction to the Legal System of Luxembourg and Its History,” given on the morning of October 1 by Jörg Gerkrath, Professor of European Law at the University of Luxembourg. Professor Gerkrath began by noting the Grand Duchy’s national motto: Mir wëlle bleiwe wat mir sinn (“We want to remain what we are”)—but does Luxembourg know what it is, and how did it come to be what it is? While it is impossible to fully address the history of Luxembourg and its legal system in such a brief lecture, he attempted to give provide introductory answers to both of these questions.

As a very small country—both in area (about 2,500 square kilometers) and population (about 580,000 people)—Luxembourg has long been influenced by (and sometimes ruled by) its larger neighbors since its founding in 963. Professor Gerkrath noted that Luxembourg’s history can be divided into three major phases: from roughly the 10th to the 15th centuries, as a small county; from the 15th to the 19th centuries, as a subject of foreign domination—including being part of the French Empire, the German Confederation, the Kingdom of the Netherlands, and the Kingdom of Belgium in the 19th century alone; and from the 19th century to the present, as a small independent state. Luxembourgish independence was a process which began with the Congress of Vienna in 1815, when it gained independence from the French Empire, was elevated to a Grand Duchy, and was given to King William I of the Netherlands. Its independence was further developed by the First (1839) and Second (1867) Treaties of London, with a constitution taking effect in 1868 ushering in an era of constitutional stability.

Professor Gerkrath explained that in its relatively short history as an independent nation, Luxembourg has been deeply involved in various international organizations and unions, including an economic union with Belgium and later the Benelux Union; the European Coal and Steel Community, the European Economic Community, and the European Union; the International Monetary Fund, World Bank, and United Nations; and the North American Treaty Organization. Luxembourg is also a signatory of the Schengen Agreement and a member of the Eurozone.

Professor Gerkrath also explained the structure of Luxembourgish government. It is a parliamentary monarchy; the head of state is the Grand Duke (currently Henri), and it has a unicameral legislature, the Chambre des députés (Chamber of Deputies). The Grand Duke appoints a government with the support of the parliamentary majority, forming the Conseil de gouvernement (Government Council) headed by the Prime Minister. Legislation is written by the Chamber of Deputies and promulgated by the Grand Duke. The Conseil d’État (Council of State, composed of 21 councilors serving 15-year terms) is required to examine and issue opinions on all laws passed by the Chamber of Deputies before they are promulgated, ensuring that they conform with the constitution, international law, and the rule of law—but its opinions are merely advisory. Universal suffrage was introduced by constitutional amendment in 1919, and voting is mandatory. While the constitution states that Luxembourgish is the country’s language, French is the primary language of its laws (with the exception of some fiscal documents in German), and its official journal (the Journal officiel du Grand-Duché de Luxembourg) is in French.

Professor Gerkrath’s lecture dovetailed with the one that followed, “Special Features of Luxembourg Law, such as its Sources” given by Professor Gilles Cuniberti, and Professors Gerkrath and Cuniberti answered questions jointly following their lectures.

IALL 2018 Recap: Privacy in European Cross-Border Settings

By Meredith Capps

In Privacy in European Cross-Border Settings, Dr. Christina Mariottini spoke of a new understanding of privacy, distinguishing between the traditional notions of privacy, which were territorial and time-limited, versus privacy in an automated and computerized setting, where violations are potentially permanent in nature and information is ubiquitous.  Whereas in the year 2000, 738 million people used the Internet, now 4.2 billion do, creating a complex and layered legal privacy landscape.

Historically, continental Europe, the US, and the UK have embraced different rationales for a right to privacy.  In continental Europe, privacy is considered an expression of dignity and self-determination.  In the US, privacy is considered an expression of liberty and protection from government intrusion (ex. unreasonable searches and searches), and commodified in certain instances (ex. a right to publicity).  Conversely, in the UK there was until recently no general tort for violation of privacy.  Privacy is generally defined in accordance with the notion of an individual’s space, whereas data protection refers to the specific area of the law that regulates the “processing of data associated with an identifiable individual.”  Defamation and the right to reputation are defined as allegations or imputations, characterized by a certain degree of falsehood, of a fact made public that disparages the reputation.  The right to freedom of expression must be balanced against the right of privacy in these conceptions.

Dr. Mariottini went on to describe a number of sources of regulation of privacy in the EU:

  • Article 8 of the European Convention on Human Rights, which states: “everyone has the right to respect for his private and family life, his home and his correspondence.” The European Court of Human Rights (ECHR) construes article to include data protection.
  • The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) of 1981 (modernized in 2018), the first binding legal instrument adopted in the EU in the field of data protection.
  • The Charter on Fundamental Rights of the EU, Articles 7 and 8, recognizing respect for private life and protection of personal data as closely related, but separate fundamental rights. (In addition, Article 53 clarifies that these provisions set a minimum standard.)
  • And, most recently, the General Data Protection Regulation (GDPR), the aim of which is to protect all EU citizens from privacy and data breaches in today’s data-driven world.

GDPRIn the GDPR, “personal data” is “any information relating to an identified or identifiable natural person (‘data subject’)…in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.”  “Processing” refers to “any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means…”

The GDPR includes several notable provisions.  Whereas prior privacy regulations were ambiguous with respect to territorial scope, Article 3 expands territorial scope to include personal data processed outside the EU.  Data subjects can easily withdraw consent to use of their data, and data controllers must notify data subjects of breach within 72 hours of knowledge of that breach.  Data subjects also retain a right to access their personal data and a right to have their data erased and no longer disseminated—the “right to be forgotten.” The law enforcement directive provides rules governing use of personal data by law enforcement authorities

Dr. Mariottini concluded by discussing the outlook on the current proposals for new legislation.  E-evidence regulations governing access to and preservation of electronic data held by companies is one area of concern, and Mariottini discussed debates regarding the CLOUD Act in the US, and improving existing mutual legal assistance agreement.  In response to questions from the group, Mariottini noted that despite criticism, the GDPR is serving as a model, with Brazil about to adopt similar legislation, and even China considering the issue.  She noted that though social media platforms such as Facebook were quick to draft policies purporting to align with GDPR, most of these policies do not, in fact, comply with EU law.

IALL 2018 Preconference Workshop on Library Innovation & Robot Usage

By Mike McArthur

TORY and Presenters

TORY, Ms. Juja Chakarova, and Dr. Johannes Travert at the IALL Preconference Workshop on Library Innovation & Robot Usage.

The 2018 IALL Annual Course kicked-off its pre-conference workshop at the Max Planck Institute for Procedural Law (MPI) in Luxembourg on Sept. 30th. The presenters included Ms. Juja Chakarova, the Head of the Library at MPI, robot designer Dr. Johannes Trabert of MetraLabs GmbH, and TORY, the inventory control robot previously used at the MPI library.

To frame the presentation, Ms. Chakarova began by explaining that the discussion would be limited to innovations that were relevant to libraries, specifically those dealing with text, letters, and languages while largely excluding those related to media, art, and other fields. She then continued by describing some of the tools that have impacted libraries throughout Europe, from the development of the typewriter in the late 1800s, to the 1960s and the introduction of automation provided by the PDP-11 line of “mini-computers.” Pointing to the Apollo 11 experiments, she contrasted the capacities of computing at the time where NASA computers ran at 40 kHz and utilized 64 kB of memory. A typical laptop today is hundreds of times more powerful, running at 2.6 Ghz and using multiple GB of memory. It isn’t a stretch to say that the entire computing power of the Apollo mission is eclipsed by a simple Google search.

After some more descriptions of technological advancement related to Moore’s Law and the disruptive influence brought by “increasingly capable machines” in Richard Susskind’s book “The Future of Professions,” Ms. Chakarova finished by bringing it back to innovation as it relates to librarians. Mentioning how card catalogs and loan cards once revolutionized the user experience, she shared that her library had directly tackled their inventory issues through the use of an innovative robot.

Dr. Trabert stepped forward to explain. Having previously worked at NASA’s Jet Propulsion Lab, he had returned to Germany to work for a company that develops mobile service robots, mostly to do simple tasks such as to guide customers to products in a store. His company worked with the MPI library to design a robot that would automate their inventory control functions using RFID, which has replaced the need for visual, camera-based functions. The goal, he said, was to free the librarians for work they were more suited for, especially interaction with patrons.

The robot that MPI had used for setting up its inventory control is named TORY. Using a set of programs, maps, and sensors, TORY is capable of autonomous movement around the library even when patrons are present, which can sometimes be tricky as standard safety features must be robust enough to let it operate around untrained people. Dr. Trabert had graciously brought TORY back to the library for a live demonstration. A table with numerous books had been set up on a card table at the front of the room and TORY quickly rounded the table while a list of titles and a tile count streamed onto the projector screen.

At this point the audience peppered the presenters with questions:

  • Does it work with compact shelving? Answer: It is surprisingly mobile, but can’t turn the crank for you…)
  • What do students do to TORY? Answer: We have a very responsible patron base so no hats, stickers, or other pranks.
  • How much do these cost? Answer: This model is about 30,000 euros and there is no leasing model yet.
  • What about a warranty? Answer: There are of course many maintenance packages.
  • What happens if there is an error? Answer: Robots like TORY have an emergency signal they send out when their sensors are blocked.

We also discovered that to process the 35,000 volumes in the collection, a few students were hired to place RFID strips in each book, which was completed over the course of two months.

Ms. Chakarova finished up by explaining that in countries like Japan where the population is more inclined to trust robots, they are being used in a wide variety of capacities. And while there is a general fear that automation will displace our jobs, an informal survey of the audience found that almost 90% were not afraid. This wrapped-up the pre-conference workshop.