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.

IPLaw2

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.

IALL 2018 Recap: What is the European Union, a Union of Citizens and States, a New Constitutional Topos?

By Caitlin Hunter

Eurocracy (4).JPGIn What is the European Union, a Union of Citizens and States, a New Constitutional Topos?, Peace Palace Law Library director Jeroen Vervliet kicked off the day with a lively question and answer session with Jaap Hoeksma about Hoeksma’s EU-themed board game, Eurocracy. Hoeksma was inspired to create the board game after he realized that, although he was a law professor, he could not satisfactorily explain what the EU was to his students. EU scholars fought fiercely over two conceptions of the EU. The inter-governmentalists conceived of the EU as an international organization formed by multiple states that fully retained their own sovereignty. In contrast, the federalists saw an ultimate end game in which the EU would become a single federated state. Because EU scholars themselves disagreed over what the EU was, Hoeksma could not clearly explain it to his students.

Hoeksma decided to take a piece of advice from Nietzsche: when you have a problem you can’t solve, turn it into a game! In the resulting Eurocracy board game, players take on the role of citizens of the EU fighting to win support for their political party. The board game served as a valuable tool for introducing students to the EU and also raised a deeper philosophical question: Why is it so complex for scholars to explain the EU, but so intuitive for students to understand it in the context of the game? The answer is a key shift in perspective. The game requires students to take on the perspective of an EU citizen. In contrast, scholars are trapped in a Westphalian model, which views states as the center of all international relations. This model is not functional for the EU, which is simultaneously a union both of states and of individual citizens.

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The failure to understand the EU as a union of citizens as well as of states has dramatic consequences for its ability to preserve democracy and defend its existence. In the 1980s, the union between EU states grew closer, while individual citizens were kept at bay. Citizens felt a strong and justified fear that they were trading democracy for bureaucracy. 1992’s Maastricht Treaty took a step in the right direction by formally recognizing individuals within the EU as citizens of both the EU and of their member states, entitled to vote and exercise their democratic rights as part of both systems. However, many politicians show little understanding of and commitment to the new Maastrichtian alternative to the traditional Westphalian model.

Critics refer to the EU as an “unidentified political object” or even “the Fourth Reich” and complain that it suffers from a democratic deficit. (Of course, as an audience member noted and Hoeksma agreed, the Westphalian model has many democratic deficits, too! They just don’t get as much press.) To preserve the EU in the face of its current crises, its supporters must continue to press for the rights of individual citizens within the EU, such as the adoption of the Charter of Fundamental Rights of the European Union in the 2007 Lisbon Treaty. As long as scholars remain stuck in a false dichotomy between federation and inter-governmentalism, the EU’s supporters cannot explain what the EU is about and preserve its democratic ideals.