the Irish for rights

Exhausting exhaustion – the limits of the first sale doctrine in EU copyright law

ExhaustionThe exhaustion of intellectual property [IP] rights by the first sale of the protected work is a fundamental principle of IP law. Where a work or product covered by an IP right is sold by the rightholder, that IP right is exhausted in the sense that it can no longer be exercised by the rightholder to prevent the purchaser from selling or lending the work or product to a third party. For example, Article 4(2) of the Software Directive (Directive 2009/24/EC) provides

The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, …

Article 4(2) of the InfoSoc Directive (Directive 2001/29/EC) is in similar terms. In Case C-166/15 Ranks and Vasilevics, the Court of Justice of the European Union [CJEU] explored the limits of this rule, and established the point at which the exhaustion doctrine is itself exhausted. As to the rule, the CJEU held:

The holder of the copyright in a computer program who has sold, in the EU, a copy of that program on a material medium (such as a CD-ROM or a DVD-ROM) with an unlimited user licence can no longer oppose the subsequent resale of that copy by the initial acquirer or subsequent acquirers of that copy, notwithstanding the existence of contractual terms prohibiting any further transfer.

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Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring

EU data monitoringI am a signatory to the following:

Open Letter to the European Commission – On the Importance of Preserving the Consistency and Integrity of the EU Acquis Relating to Content Monitoring within the Information Society

Recent developments, starting with the Communication on Online Platforms and the Digital Single Market Opportunities and Challenges for Europe released on 25/05/2016, followed by a series of proposals (Proposal for a Directive amending the Audiovisual Media Services Directive, Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market) and soft law initiatives (the EU Internet Forum against Terrorism and the Code of Conduct on Countering Illegal Hate Speech Online) seriously put at risk the consistency and integrity of the EU acquis related to the information society.

A key component of this acquis is the prohibition of general monitoring obligations to the benefit of providers of intermediary services. It is a means to achieve at least two central objectives: the encouragement of innovation as well as the protection of fundamental rights of all Internet users, namely the rights protected by Articles 8 and 11 of the European Convention of Human Rights. Yet, the proposed Copyright Directive, in particular, seems to negatively affect both the domain and effect of Article 15 of the E-Commerce Directive. The signatories of this open letter therefore urge the European Commission to take into account the human rights dimension of Article 15 of the E-Commerce Directive, as made explicit by the Court of the Justice of the European Union, and to make sure its implications are carefully examined across sectors.

There are blogposts by other signatories are here (Eleonora Rosati on IPkat) and here (Sophie Stalla-Bourdillon on peep beep!); and the letter can be downloaded here.

Dearer to us than a host of truths is an exalting illusion? EU Data Transfer Regulation after Schrems

Kuner & FennellyMy favourite Steve Jobs aphorism (and there are so many from which to choose) is

People who know what they’re talking about don’t need PowerPoint.

(see Steve Jobs by Walter Isaacson (Simon and Schuster, 2011) 337). Last Thursday, Chris Kuner elevated this from apothegm to axiom, resoundingly proving the truth of that insight, by providing a masterclass in compelling presentation without resort to the crutch of powerpoint or similar slides. Chris is pictured above left, chatting with David Fennelly, before delivering a powerful lecture on “Reality and Illusion in EU Data Transfer Regulation” in the light of the decision of the Court of Justice of the European Union in Case C-362/14 Schrems v Data Protection Commissioner [2015] ECR I-nyr (Grand Chamber, 6 October 2015) to a rapt audience in Trinity College Dublin. He began with a quote from Chekov:

Dearer to us than a host of truths is an exalting illusion.

This is from Chekov’s short story “Gooseberries” (see Richard Pevear and Larissa Volokhonsky (tr) Selected Stories of Anton Chekov (Random House, 2009) 311 at 317), where the Nikolai is deluding himself that his gooseberries – actually “hard and sour” – are in fact the succulent and luscious fruit which he had always dreamed of growing. So it is, Chris argued, with EU regulation of trans-border data flows, which is at present an exalting illusion running up against a host of political realities.

In Schrems, the CJEU held that national data protection authorities [DPAs] could independently make decisions on the adequacy of data protection regimes in countries to which EU data is exported, notwithstanding a Commission decision on such adequacy, and that the Commission Safe Harbour decision on the adequacy of the US data protection regime was invalid. Four themes can be discerned in the judgment. First, there is a strong affirmation of the right to data protection under the EU Charter of Fundamental Rights, building on the prior judgments in Joined Cases C-293/12 and C-594/12 Digital Rights Ireland and Seitlinger (Grand Chamber, 8 April 2014) [and Case C-131/12 Google Spain (Grand Chamber, 13 May 2014)]. Second, EU data protection standards – and in particular, the Charter – apply to transfers to third countries. Third, the CJEU elevated the role of independent national DPAs (especially as against the EU Commission) and empowered individuals to complain to such DPAs. And, fourth, the CJEU held that the “adequate level protection” of international transfers of data required by EU law is equivalent to the level of data protection provided by EU law – Chris stressed that “equivalent” here is not necessarily “identical”, but that this is still a high bar.

The impact of the CJEU decision in Schrems goes far beyond the context of the invalid safe harbour. Chris gave four examples. Read more

GradLink in TCD Law School

TCD logoHere in Trinity College Dublin, the GradLink Mentoring Programme aims to develop current students’ knowledge of the labour market and career paths, through nurturing career learning relationships with alumni mentors working in a range of career areas. The School of Law is participating in this year’s programme, connecting third year (Junior Sophister) students with graduates of the School who have kindly agreed to act as mentors, to pass on pass on knowledge and experience, and offer advice, guidance and information to our students on issues relating to their career and professional development. There are guidelines for mentors and students here (pdf). One past student said:

I very much enjoyed the GradLink Mentoring Programme as it gave me the chance to get advice from someone with experience in the field I wish to work in. It was invaluable to be able to take the time once a month to remove myself from thinking purely about college to think about my future and where I want to go. The wide range of advice my mentor gave me will definitely be helpful when I am looking for employment and the experience gave me confidence that people can find work in my area of qualification.

The School is privileged to have an excellent group of mentors who have carved out successful careers both in the legal profession (barristers, solicitors, in-house lawyers, government lawyers) and beyond (in business, media, government and so on). One past mentor said:

I really enjoyed participating in the GradLink programme. I was assigned three students, who were all fantastic and very engaged. It was great to be involved in this way with Trinity and nice to feel like I am giving back in some ways.

For this year’s students, there will be a launch event on Wednesday of next week, 12 October 2016, at 6:30pm in the Trinity Long Room Hub.. At the event, students will have the opportunity to meet mentors, who will briefly introduce themselves and their sector of employment, job role, or specialism. The deadline for interested students to register for a place is Monday of next week, 10 October 2016.

Free speech for Trump but nobody else? Let’s see what Denis O’Brien might have to say about that

O'Brien & Trump

Denis O’Brien and Donald Trump (via Flickr)

Denis O’Brien (above left) and Donald Trump (above right) are classic crybullies: they cry in public when criticised, whilst bullying others – claiming to be victims, whilst intimating their critics. So, Denis O’Brien (among the 21 Irish lawsuits initiated by him since 2010) seeks to sue the Oireachtas for a TD’s speech about some of his business dealings, to to redact RTÉ’s publication of the same material, and to sue a PR firm for conspiracy and defamation, all the while claiming never to have experienced the level of abuse, venom and hatred resulting from taking a stand to protect privacy in relation to his financial affairs. Donald Trump is notorious for his cheap personal attacks, on the parents of a Muslim American soldier killed by a suicide bomber in Iraq, on a former Miss Universe, and a judge who is hearing a fraud case against his defunct university, all the while decrying media criticism and threatening to change the law to weaken the First Amendment and muzzle the press.

The sanctimonious hypocricy at the heart of this strategy is egregious. The First Amendment, against which Trump inveighs when it is used against him, is the very thing on which Trump relies when he harangues everybody else. The First Amendment standard which allows him to criticise Hilary Clinton (see New York Times v Sullivan 376 US 254 (1964)) is the same standard which allows him to criticise judges (Garrison v Louisiana 379 US 64 (1964)) and it is the same standard that allows the New York Times to criticise his tax affairs. If he changes the Sullivan standard so that the New York Times can’t do that, then he changes the standard that protects his own incoherent fulminations.

Of course, Trump won’t be able to change the Sullivan standard; it is too well entrenched in the jurisprudence of the US Supreme Court for that (see Hustler Magazine v Falwell 485 US 46 (1988) 52 (Rhenquist CJ); but cf the views of the late Scalia J). So, instead, Trump is working in other ways to curb the media and undermine the First Amendment – and if this sabotages Sullivan and leads to its reversal, so much the better: “when the New York Times or the Washington Post writes a hit piece, we can sue them”. But, even without a change in the law, his celebrity and alleged personal resources mean that he can wage war against media organizations he doesn’t like. For example, the day after Gawker.com conceded defeat in the face of billionaire Peter Thiel’s determined (and long-secret) war against it, Trump’s wife has taken to the fight, using Thiel’s law firm to over allegations about her immigration status when she first went to the US. This is just straightforward bullying by Trump, Theil and their ilk, using their fortunes to intimidate the media.

Meanwhile, Trump’s crying also continues. In the sort of personal attack that he would sue over, Trump’s latest assault is on Irish businessman Denis O’Brien, and his association with the Clintons. Trump makes the kind of allegations that have in the past seen O’Brien reach for his lawyers. O’Brien is keeping his counsel at the moment, but if he remains true to form and responds with a lawsuit, then where he launches it will have a large bearing on the outcome. If he sues in Ireland, his damages will be limited; and, however much they might be, they would not in any event be recoverable in the US. If he sues in the US, Trump will smugly wrap himself in the US flag and the First Amendment; but it would be interesting to see Trump’s own bullying tactics used against him; and he may find that he has bitten off more than he can chew on this one. The whole episode neatly illustrates Trump’s foul-smelling hypocrisy and crybullying forked tongue – hiding behind the First Amendment to assail the Clintons via O’Brien, taking advantage of the media coverage his onslaught has generated, but yet threatening the media when he doesn’t like what they say, seeking to hold them to higher standards than he holds himself. He should take a deep breath and a long look in the mirror, thank his lucky stars for the US Constitution (even if he doesn’t know what it says), and leave the First Amendment alone. As for O’Brien, if he does sue Trump, at least this time he’ll be taking on someone his own size. But, otherwise, he too should take a deep breath and a long look in the mirror, thank his lucky stars for the Irish Constitution (even if he too doesn’t know what it says), and leave its free speech provisions alone.

Reality and Illusion in EU Data Transfer Regulation post-Schrems

Crhis KunerOn the first anniversary of the judgment of the Court of Justice of the European Union in Case C-362/14 Schrems, Professor Christopher Kuner (pictured left), Professor of Law at the Vrije Universiteit Brussels, will give a public lecture on

Reality and Illusion in EU Data Transfer Regulation post-Schrems

The lecture will be held in the Neill Theatre, Trinity Long Room Hub, Trinity College Dublin, on Thursday 6 October 2016, at 1:00pm.

In Case C-362/14 Schrems v Data Protection Commissioner [2015] ECR I-nyr (Grand Chamber, 6 October 2015), the Court of Justice of the European Union invalidated the EU-US Safe Harbour arrangement allowing personal data to be transferred to the US. The judgment is a landmark in the Court’s data protection case law, and illustrates the tension between the high level of legal protection for data transfers in EU law and the illusion of protection in practice. The judgment has undermined the logical consistency of the other legal bases for data transfer besides the Safe Harbour, and reactions to it have largely been based on formalism or data localization measures that are unlikely to provide real protection. Schrems also illustrates how many legal disagreements concerning data transfers are essentially political arguments in disguise. The EU and the US have since agreed on a replacement for the Safe Harbour (the EU-US Privacy Shield), the validity of which will likely be tested in the Court. It is crucial for data transfer regulation to go beyond formalistic measures and legal fictions, in order to move regulation of data transfers in EU law from illusion to reality.

Professor Christopher Kuner is a leading expert on the law of data protection and, in particular, the law governing the international transfer of data. He is Professor of Law and Co-Chairman of the Brussels Privacy Research Hub at the Vrije Universiteit Brussel and Senior Privacy Counsel in the Brussels office of Wilson Sonsini Goodrich & Rosati. He is also a Visiting Professor in the Department of Law in the London School of Economics and Political Science, an associate professor in the Law Faculty of the University of Copenhagen and an affiliated lecturer and Honorary Fellow of the Centre for European Legal Studies of the University of Cambridge. He is the author of Transborder Data Flows and Data Privacy Law (OUP, 2013) and Editor-in-Chief of the Journal of International Data Privacy Law (also published by OUP).

ADAPT centre logoAttendance is free, and all are welcome to attend, but booking is essential, so please register at eventbrite.

The lecture is organised by the Ethics & Privacy Working Group of the ADAPT Centre, TCD, in conjunction with the Trinity Long Room Hub, TCD School of Law, TCD School of Religions, Peace Studies and Theology, TCD Library and DCU Institute of Ethics.

Some forthcoming legislation on the administration of justice, cybercrime, education, intellectual property, and privacy

Government Buildings by night, via Wikipedia

Government Buildings,
Merrion Square, Dublin.
Image via wikipedia

Government Chief Whip Regina Doherty has announced the Government’s Legislation Programme for the Autumn Session 2016 (pdf). It is a considerable update of the programme published last June (pdf) when the government came into office.

The June programme had the feel of a holding document, published to get a new government to the Summer Recess. This programme has a far more substantial feel about, published to demonstrate the government’s confidence in its capacity to promote and enact legislation.

After the publication of the June programme, I examined proposed legislation from the Department of Education and Skills (here; and see also here), the Department of Jobs, Enterprise and Innovation (here; and see also here and here), and the Department of Justice and Equality (here and here). Under those headings, very little has changed. But there are some notable additions, not least of which is the Interception of Postal Packets and Telecommunications Messages (Regulation) (Amendment) Bill. All we are told is that work is underway on a Bill to “amend various pieces of legislation in respect of electronic communications”. There is no further explanation. This is probably the Bill to provide for further covert surveillance of electronic communications promised by the Minister earlier this Summer. It is also likely to cover incoming requests from overseas to access to data held in Ireland. It may also include preparatory work for the response to the investigations being carried out by retired Chief Justice John Murray and retired Supreme Court judge Nial Fennelly. However, at present, this is just speculation, so we shall have to wait and see what the Department has in mind.

As to the administration of justice, priority legislation to be published by the Department of Justice and Equality this session includes a Bill to make provision for periodic payment orders to replace lump sum damages, and a (hastily-promoted?) Bill to establish the long-awaited Judicial Council. Indeed, that Bill is expected to undergo pre-legislative scrutiny this session, as is a Bill to replace the Judicial Appointments Advisory Board with a new Judicial Appointment Commission – indeed, the cabinet agreed yesterday to bring forward the heads of such a Bill by November. All of these developments are very welcome – provided that the Appointments Bill permits legal academics to apply for appointment to be bench, especially at appellate level. It would not be difficult to draft the necessary legislative provisions, and there is no reason in principle not to do so.

As to cybercrime, first, the busy Department of Justice and Equality is promoting the Criminal Justice (Offences Relating to Information Systems) Bill 2016, to implement Directive 2013/40/EU on attacks against information systems. It is on the Dáil Order Paper, awaiting Second Stage. Second, in the ‘I’ll believe it when (if) I see it’ category is the long-promised and almost long-forgotten Cybercrime Bill to give effect to the Council of Europe Convention on Cybercrime 2001. Yes, you read that right, it’s a 2001 Convention. It is 15 years old, which is a lifetime online.

As to education, legislation envisaged at some stage from the Department of Education, but probably not in this session, includes the Higher Education (Reform) Bill and the longer-threatened Universities (Amendment) Bill (critiqued here, here, here, and here). And the Technological Universities Bill 2015 remains on the Dáil Order Paper, awaiting Committee stage.

As to intellectual property, pre-legislative scrutiny is expected shortly on the Knowledge Development Box (Certification of Inventions) Bill. Heads of a Bill to amend Article 29 of the Constitution to recognise the Agreement on a Unified Patent Court were approved on 23 July 2014, though, in the light of Brexit, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Jobs, Enterprise and Innovation to the Oireachtas. Finally, the Copyright and Related Rights (Amendment) (Miscellaneous Provisions) Bill has been “referred to committee” pre-legislative scrutiny. This is presumably the Joint Committee on Jobs, Enterprise and Innovation. However, the Bill is not in the pre-legislative scrutiny list for this session, so we probably won’t see it in committee before Christmas.

As to privacy, the most important piece of legislation mentioned in the Programme is the Data Protection Bill, to transpose the EU Directive 2016/680 and give full effect to the General Data Protection Regulation (Regulation 2016/679). Heads are expected before the end of 2016 (but I’m not holding my breath). A Data Sharing and Governance Bill will be published and sent for pre-legislative scrutiny, to mandate and facilitate lawful data-sharing and data-linking for all public bodies, and a Health Information and Patient Safety Bill go further in the context of health information. In both cases, the drafting will be tricky, not least because the Bills will have to be compliant with the decision of the Court of Justice of the European Union in Case C?201/14 Bara. The Criminal Records Information System Bill and the Passenger Name Record Bill implement EU obligations. However, in the case of the latter, since there is a challenge before the CJEU in respect of a related measure, a cautious approach for the time being may mean that other Bills may progress ahead of it from the Department of Justice and Equality to the Oireachtas.

Finally, it is heartening to see that work has commenced on a Bill to remove blasphemy from the Constitution, and interesting to see active proposals to establish an Electoral Commission and to amend the transfer of records in the National Archives from 30 years to 20 years.

Read more

National Anthems and Political Dissent

Obama Hand on Heart for AnthemFor various reasons (set out here, here, here, and here), I have been musing recently about what should and should not be in a National Anthem Bill. In the US, legislation provides that, when the national anthem (since 1931, “The Star-Spangled Banner“) is being played, “persons present should … stand at attention with their right hand over the heart” (emphasis added). Although the photograph left shows Barak Obama doing so as President in 2009, there was a minor controversy during the 2008 election when he neglected to do so at a campaign event. More recently, US gymnastics gold medalist Gabby Douglas apologized in the face of criticism when she neglected to do during the playing of national anthem at an olympics medal ceremony. Neither Obama nor Douglas meant anything by it. Obama said his grandfather taught him to put his hand on his heart only during the pledge of allegiance, and only to sing during the national anthem. And Douglas was just overcome by the emotion of the moment.

But some people do take advantage of the anthem to make a political point. At the 1968 Olympics, US 200-metre medallists Tommie Smith (gold) and John Carlos (bronze) raised their own gloved hands during the national anthem while looking down as a way of opposing US state-sanctioned racism. In 1996, basketballer Mahmoud Abdul-Rauf of the Denver Nuggets was suspended indefinitely and without pay for declining to stand for the anthem in protest at the treatment of Muslims in the US (though a compromise was soon reached). Jeremy Corbyn, Leader of the opposition Labour Party in the UK, and life-long Republican, caused controversy by not singing the national anthem at a commemorative service for WWII veterans, and caused even more controversy when he sang the anthem at a service to mark the Queen’s 90th birthday with one hand in his pocket.

Most recently, American footballer Colin Kaepernick (quarterback for the San Francisco 49ers) refrains from standing to attention with his hand on his heart during the anthem before football games – he began by remaining seated, but now kneels on one knee. It is his way of opposing racism in the US, and in particular protesting at police brutality against people of colour. He is now being joined in his protest by other athletes in many sports. And just last Sunday, 100 people knelt outside the outside the Bank of America Stadium in Charlotte, North Carolina, as the national anthem played before the Carolina Panthers lost at home to the Minnesota Vikings.

Smith and Carlos, Mexico Olympics, 1968In 1968, Smith and Carlos faced significant criticism for their protest (pictured right). Little has changed. So do Kaepernick and his fellow refuseniks now – indeed, their protests are proving very unpopular with fans. But President Obama, who has invited Smith and Carlos to the White House, has defended Kaepernick and those following his lead, saying that they have the right to protest in this way. As Jeffrey Toobin points out in the New Yorker, this right was copper-fastened in “the most eloquent opinion in the history of the [US] Supreme Court”. The opinion is that of Jackson J in West Virginia State Board of Education v Barnette 319 US 624 (1943), and Toobin says that it “stands as perhaps the greatest defense of freedom of expression ever formulated by a [US] Supreme Court Justice”. Allowing for a little hyperbole, Barnette is certainly a major free speech case, and it equally certainly protects Kaepernick’s protest.

Walter Barnett (his name was misspelled by a court clerk), a Jehovah’s Witness, declined to allow his two daughters to recite the pledge of allegiance in a state grade school; the girls were expelled; but the Supreme Court held that the action of a State in making it compulsory for children in the public schools to salute the flag and pledge allegiance violated the free speech protections in the US constitution. Read more

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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