Countering the Platformization of Education

On 17 December 2020, I will present “Countering the Platformization of Education” with Rossana Ducato at Shifting education from classrooms to online platforms – smooth as silk? a virtual event organised by Legal Hackers Luxembourg

Due to the spread of Covid-19 in the first months of 2020, the activities of most universities and schools across Europe had to migrate online. This rapid shift towards online education has been characterized by the use of third-party service providers (like Zoom, MS Teams, Skype, etc.).

The “platformization” of education, however, raises many concerns about copyright and data protection.

Agenda
18.00 – 18.15: opening by Chris Pinchen (Bee Secure ambassador and organizer of the Privacy Salon)
18.15 – 19.00: “Countering the Platformization of Education” by Rossana Ducato (University of Aberdeen) and Guido Noto la Diega (University of Stirling)
19.00 – 19.30: online apéro

Registration and more information here

AI inventions, AI-assisted inventions, AI-generated inventions and patent law

On 4 December 2020, I have talked about AI and patent law at the 2-day workshop Neuroni Artificiali e Biologici organised by the University of Trento. This is part of the ERC-funded project BACKUP led Professor Lorenzo Pavesi, Chair of Experimental Physics. BACKUP will address the fundamental question of which is the role of neuron activity and plasticity in information elaboration and storage in the brain.

This workshop assessed the legal, philosophical, and ethical issus in AI, robotics, and biotechnologies. Its goal was to start a multidisciplinary conversation to set up a community where we can identify paths for future collaborative research.

The workshop consisted of talks, including mine, roundtable conversations, and a white paper drafted by the PhD students in attendance.

Key takeaways of my talk

We must foster an inclusive and diverse public debate on AI & ethics. This has also practical consequences because immoral AI applications cannot be patented

The widespread use of AI applications to carry out research and produce inventions leads to the risk of over-monopolisation of ideas thus stifling innovation. A way to address the issue is to change the standard to assess the investive step, that is a requirement to meet for an invention to be patentable. Inventive step is assessed from the perspective of the person skilled in the art. This low threshold should be replaced with the higher threshold of the ‘AI-enhanced multidisciplinary team’.

The European Patent Office, the UK Intellectual Property Office and the US Patent and Trademark Office agree that AI cannot be an inventor. Fair enough, but how do we prevent human inventors to make-up humanity? How do we verify that an invention that is presented as human-made is not actually AI-generated? Could an AI system verify humanity?

Not only Zoom. Remote Teaching Digital Platforms, Copyright, and Data Protection

On 25th November 2020, Dr Rossana Ducato and I presented our research on remote teaching, copyright, and privacy at the 83th Nexa Lunch Seminar, research event hosted (virtually) by the Nexa Center for Internet & Society, a joint venture of the University of Turin and Polytechnic of Turin.

The rapid spread of COVID-19 in March 2020 shut down universities in most European countries. Teaching moved online and most universities are currently planning to deliver at least part of their teaching in the coming academic year in a blended form. With the online shift of teacher-student interactions, the choice of the teaching medium has never been more important (Ducato et al. 2020).

The post-pandemic university will have to make a responsible choice with regards to which tools to use to deliver their courses. Digital tools developed and operated by third parties significantly affect teachers’ and students’ fundamental rights and freedoms, including IP rights. Our research sheds light on the copyright issues arising from the use of some popular remote teaching platforms (e.g. Zoom) and it critically assesses whether these concerns remain pertinent in a post-COVID blended learning environment (Pascault et al. 2020).

Our project has analysed so far the terms and conditions, privacy policies and community guidelines of a sample of nine online services used across Europe in order to assess whether the needs of teacher and students are met. The analysis investigates whether sufficient and clear information is provided in order to enable teachers to carry out educational activities and interact with their students without uncertainties as to the potential legal consequences of their use and concerns regarding the protection of their content.

Key takeaways

The shift to online learning exacerbated existing problems, including digital dependency

The system of public HE does not have an infrastructure that can guarantee the fundamental right to education in remote learning

We observe a trend whereby HE institutions adopt third parties platforms that do not have learning as their core or mission.

The COVID emergency left little time for scrutiny: now it’s the time to stop and think again

Crucial to invest in a public infrastructure that allows better control over data and learning content

You can find our research on remote teaching, copyright, privacy here

The regulation of the Internet of Things: fit for the sustainable development goals?

On 26th November 2020, I presented ‘The regulation of the Internet of Things: fit for the sustainable development goals?’ at the Digital Technologies for Sustainable Development: Legal Challenges, organised by the Lomonosov Moscow State University. Thank you to Professor Larisa Sannikova (Russian Academy of Sciences, Institute of State and Law) for the kind invitation!

In this paper, I discussed how the Internet of Things (IoT) can facilitate the achievement of the UN sustainable development goals. In this context, I critically assessed whether intellectual property (IP) laws can play a positive role in governing the IoT and unleash its ‘sustainability-friendly’ potential. I offered a European IP perspective, with a focus on patent law, but many of the things I said raise similar issues in other jurisdictions and in other IP sub-systems such as copyright and trademarks.

The Internet of Things

The IoT refers to all those ‘smart’ devices that are connected to the Internet, equipped with sensors and actuating capabilities. Your smartphone, Amazon Echo, Apple Watch, Google’s Nest Thermostat. The phrase ‘Internet of Things’ was coined exactly 30 years ago by Procter & Gamble’s Kevin Ashton. Interestingly, Ashton saw the IoT as the fundamental disruptor of existing supply chains thanks to the fact that machines can now communicate with each other without human intervention. We now have accurate real-time information about our products wherever they are, because it is the product itself that talks to us. The IoT has unprecedented potential to realise the sustainability agenda and improve the global supply chain.

IoT and sustainability

To provide just an example of how the IoT is pivotal to sustainability let us simply focus on one aspect. The WTO considers enhancing the services sector as a key step to making sure that international trade contributes to accelerating progress in achieving the sustainable development goals. Enhancing the services sector. No other technology will bring an as extraordinary revolution on this front as the IoT.

Unleashing the sustainability potential of the IoT may require to change our existing laws on trade. Indeed, our understanding of trade – and the relevant regulation – has always relied on a fundamental dichotomy between goods and services. For example, disputes regarding goods will fall under the General Agreement on Tariffs and Trade and the Agreement on Technical Barriers to Trade. Conversely, if services are at issue, the General Agreement on Trade in Services will govern the litigation. With the IoT, traditional dichotomies fade away. Indeed, smart devices are an inextricable mixture of goods, services, hardware, software, and data. A more adequate way to regulate the IoT should take into account of the overcoming of the good-service dichotomy.

Servitization on steroids

Enhancing the services sector is seen as pivotal to the achievement of the sustainability agenda. Servitization has been a trend for many years now and rightly so. As research by Guillot found, 70% manufacturers are adopting servitization, thus shifting their focus from products to end solutions as a means to enhance their competitive advantage.

The IoT brings servitization to its extreme consequences: indeed, when every machine and everyday object becomes embedded with services and software, it becomes meaningless to imagine goods and services as separate entities. Smart devices have outnumbered human beings. They are allowing a number of actors that were excluded from traditional manufacturing to provide new and cheaper services in several fields, including smart home, smart cities, smart grids, and quantified self. The creation of IoT-enabled services may ultimately benefit more vulnerable stakeholders, including SMEs and entrepreneurs in developing and least developed countries, by contributing towards key sustainable goals such as decent work and economic growth, as well as industry, innovation, and infrastructure.

Intellectual Property: incentives to sustainable innovation

For the IoT to unleash its potential and facilitate the achievement of the sustainability agenda, it is crucial that it be governed adequately by the law, and in particular by IP Law.

IP is the law that creates temporary monopolies on inventions, literary works, and other intellectual creations in order to incentivize innovation and creativity. The main examples of IP rights include copyright, patents, trademarks, designs, and trade secrets. For many companies, including SMEs, IP assets are more valuable than physical assets. To give a sense of the value of IP, according to Interbrand, Apple’s trademarks are worth USD 215,000m; whereas Amazon’s branding value has jumped an outstanding +56% last year. The key to Google’s success is a trade secret on their search algorithm. IP is not just about creating value.

IP laws are a vital element of any sustainability strategy, in that they can promote innovation and economic growth, while reducing inequalities and improving access to health. However, depending on how they are interpreted and on which stakeholders can exercise actual influence on the lawmaking process, IP laws can also run counter the sustainability goals.

Is IP fit for the IoT?

IP can determine the success of the IoT. Or it could doom it to failure. To understand whether the IoT can be governed so as to contribute to the achievement of the sustainable development goals, we need to critically see if IP laws are fit for purpose. This means answering the fundamental question whether, in an IoT world, IP laws can still incentivise innovation and creativity while striking a balance between private economic interests and public non-economic ones. I would like to make just two examples of how IP laws govern – or fail to govern – the IoT.

Software patents and the IoT

One of the requirements for patentability is that the invention does not fall within the so-called excluded subject matter (Article 52 of the European Patent Convention). This means that there are public policy reasons not to allow patents on certain things, such as discoveries and scientific theories.

The most controversial exclusion from patentability regards computer programs. Applicants will not be granted a patent if the invention regards software “as such” (Article 52(3)). The EPO interpreted this exclusion to mean that a computer program can be patented if it produces a ‘further technical effect’ when run on a computer (T 1173/97 and G 3/08). Computer programs will have a technical effect, for example, when they affect a process that is carried out outside the computer or make the computer run more efficiently or effectively (HTC v Apple).

The IoT is likely to have an impact on this system in that the aforementioned exclusion rests on the software-hardware dichotomy, that the IoT disrupts. Moreover, as smart devices are increasingly used to control real-world processes and make traditional devices more effective, the relevant software inventions are likely to be regarded as producing a ‘further technical effect’ and therefore not excluded from patentability. With the ubiquitous presence of the IoT, we may factually overcome the software’s exclusion from patentability. It should not come as a surprise, therefore, that IoT patents and applications increased annually on average more than 40% compared to an average 6 %annual increase across all other technologies (UKIPO 2014).

A future where all software becomes patentable would not be a positive one, because it would lead to chilling effects and to the deployment of IoT devices and systems that are proprietary and therefore go against the openness ethos of the IoT. Indeed, the IoT must be open and interoperable, otherwise it becomes the Internet of Silos. It is my contention that a proprietary IoT would not be innovative and ultimately it would not achieve the sustainability goals.

Exceptions: limiting IP to favour sustainable innovation

Unlimited monopolies do not benefit innovation – if patents gave absolute powers to the IoT companies that own them they may benefit those companies but damage the competitors and the public at large. In this sense, it is fair to say that IP laws must be limited for them to be conducive to sustainability. Limitations can be internal and external.

The main example of internal limitations are called ‘exceptions’. In IP Law, by ‘exceptions’ we mean that under certain circumstances it is possible to use third parties IP without their permission. For example, under the UK Patents Act 1977, s 60, companies do not infringe competitors’ patents if they use the competitors’ patented invention for ‘experimental purposes’. For example, WattTime’s system, installed on selected devices, batteries, and thermostats, continuously monitors and updates power data from grids and allows smart devices to automatically switch to the cleanest energy supplier available. WattTime competitors can use this system without WattTime’s permission in order to experiment and develop a better and more sustainable product. The ‘experimental’ exception constitutes a very important limitation to the patent holder’s powers.

Patents are there to stimulate innovation: important to give others in the same field the right to carry out experiments using the public information that is made available as a result of the patent application procedure. This increases the likelihood of a further patent race as the patent reaches its 20 years expiry date. Competition between sustainable solutions will ultimately improve the way we tackle sustainability.

The overlaps conundrum

The possibility to rely on mechanisms such as the experimental patent exception is limited in the IoT. This is due to the problem of IP overlaps. Let’s take the example of Amazon Echo, that is Amazon’s speaker equipped with virtual assistant Alexa. Its code is protected under software copyright, its shape under design rights, its mechanisms under patent law, its logo under trademark law, its algorithm under trade secrets law, and its data under the sui generis right. One simple speaker, dozens of IP rights. These overlapping rights have a negative impact on IP exceptions.

Linking back to the experimental purpose exception, a company could rely on it to use its competitor’s IoT invention and make it more sustainable. However, the latter IoT company could still prevent its competitors from relying on the experimental exception by invoking the other IP rights. For example, under copyright law there is no experimental exception – therefore, the IoT company could claim that making experiments with their invention constitute an infringement of their copyright on the code of the computer program. In simple terms, IP overlaps effectively prevent the possibility to limit the powers of the IoT company by relying on the IP exceptions.

To address this situation, the best solution would be to introduce a form of fair use open-ended exception in all IP laws. A second best solution could be to amend the IP laws to streamline existing exceptions so that all IP laws provide the same exceptions.

Conclusion

To conclude, we can all play an important role in the achievement of the UN sustainable development goals. Investments in IoT could go a long way, in that they could lead to economic growth, innovation, good health, and new services. For this to happen, however, they must be adequately governed. This means, practically, that we need IP laws that are fit for the IoT. The IoT is set to disrupt patent laws for a twofold reasons.

First, because the non-patentability of software may be factually circumvented by the ubiquitous presence of software in any mundane device and at any step of the supply chain.

Second, because the overlapping of many IP rights in every smart device make it impossible to limit the IoT company’s powers by relying on the IP exceptions.

To wrap up, IP laws as they currently stand are likely to play a limited role in facilitating the sustainability potential of the IoT. The climate change movement made it clear that sustainability is an imperative – a moral imperative, but also a legal one. It’s crucial that IoT regulations is changed to overcome dated dichotomies (good/service, software/hardware) and that it limits monopolies so that the competition between different sustainable solutions will ultimately benefit society at large. This should include the generalised introduction of a fair use open-ended approach to IP exceptions and a stricter examination of software patent applications. Only more balanced and flexible IP laws would be allow the IoT to unleash its sustainability potential.

The ethics of killer robots. Developments, characteristics and consequences of Artificial Warfare

On Wednesday 25 November 2020, I attended an online conference organised by Rome-based Scuola Critica del Digitale (Centro Riforma dello Stato) and Forum Disuguaglianze e Diversità.

I chaired a panel on “The ethics of killer robots. Developments, characteristics and consequences of Artificial Warfare” with illustrious speakers Professor Teresa Numerico (Roma Tre University), Dr Letizia Oddo (University of Rome Tor Vergata), Stefano Quintarelli (computer scientiest, former MP) and Professor Guglielmo Tamburrini (University of Naples “Federico II”).

In recent years, pressure is mounting to deploy lethal autonomous weapons AKA killer robots. AI and robotics experts, as well as NGOs around the world (e.g. Stop Killer Robots and Humanr Rights Watch) are campaigning for a ban on these systems but the United Nations have not taken a clear stance yet.

The COVID-19 pandemic risks exacerbating existing tensions between current and emergeing powers. The perfect storm is completed by the fact that as soon as robot killers are deployed in a war, the esclation of the conflict would become incontrollable.

Consequently, to reach a consensus on the illegality and immorality of lethal autonomous weapons has never been more important. And yet, there are still people who argue that it is possible to design killer robots that comply with international human rights law, the laws of war, and the principles of ethics. The growing trend of ‘ethical AI’ risks being a dangerous ideological device that can be exploited to appease civil society’s concerns and thus develop dangerous AI applications in a space that is purposefully represented as lawless.

My research on killer robots can be downloaded for free here.

The full video of the conference is here:

Private ordering of data control in remote learning

Today, Tuesday 3rd November 2020, I’ve had the pleasure to e-meet the students of the “Law and Data” Course of the MSc Data Science coordinated by Professors Paolo Guarda and Roberto Caso (University of Trento). The topic of the seminar was ‘Private ordering of data control in remote learning’, a research-led session based on the research on the privacy and copyright issues in remote teaching carried out with Dr Rossana Ducato (then UCLouvain, now Aberdeen), Dr Giulia Priora (Sant’Anna), Dr Chiara Angiolini (Unitn), Dr Alexandra Giannopoulou (IViR), Dr Bernd Justin Jütte (Nottingham), Léo Pascault (Sciences Po Paris), and Dr Giulia Schneider (Sant’Anna).

Due to the COVID emergency, Universities and teachers switched to online teaching without proper scrutiny. In particular, without a careful consideration of how the remote teaching provider (e.g. Zoom, Moodle, etc.) deal with user content and personal data. Nobody read the Terms & Conditions that they were signing up to, but we did. And here’s what we found.

Private ordering – buried in the T&C there are insidious terms: read before using an Emergency Remote Teaching service

ERT providers can do whatever they want with our educational content and data, including sharing it with third parties and commercialuses

Teachers risk becoming the new © cops: freedom of expression and right to education?

Chilling effects: remember that you have a right to use third parties’ © without their permission (© defences/exceptions)

Copyright overprotectionv open science (Caso & Guarda 2020)

Our data is processed, shared, and transferred in dubious ways

Learning from the GDPR -We risk having our educational materials removed: we need a right to a human appealagainst automated enforcement of ©

‘More sharing, cooperation and solidarity after Covid-19?’(cf. Caso) – There is a strong case for a EU public open RT infrastructure to ensure actual control over data and educational content

Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching

On Friday 23 October, Giulia Priora and I presented “Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching” at the 12th Worldwive Annual Conference of the European Intellectual Property Teachers’ Network (EIPTN). The program is available here. The core takeaway of our presentation is: the move to remote teaching – and the associated risk that teachers and students lose control over the contents they share and that they inadvertently infringe copyright – provides an unprecedented pedagogical opportunity. For the first time, teachers and students are directly and clearly affected by copyright and this will make studying copyright more relevant and exciting than ever! We, as IP teachers, should take advantage of the situation and re-design the IP syllabi around an analysis of the terms & conditions of remote teaching platforms. This may include interactive games such as uploading contents that we believe is lawful (e.g. relying on the parody exception) and see what happens to it: will it be taken down automatically? How does the appeal mechanism work? What’s the room left to public interest in the delicate balance with proprietary interests?

The rapid spread of COVID-19 in March 2020 shut down universities in most European countries. Teaching moved online and most universities are currently planning to deliver at least part of their teaching in the coming academic year in a blended form. With the online shift of teacher-student interactions, the choice of the teaching medium has never been more important (Ducato et al. 2020).

The post-pandemic university will have to make a responsible choice with regards to which tools to use to deliver their courses. Digital tools developed and operated by third parties significantly affect teachers’ and students’ fundamental rights and freedoms, including IP rights. Our research sheds light on the copyright issues arising from the use of some popular remote teaching platforms (e.g. Zoom) and it critically assesses whether these concerns remain pertinent in a post-COVID blended learning environment (Pascault et al. 2020).

Our project has analysed so far the terms and conditions, privacy policies and community guidelines of a sample of nine online services used across Europe in order to assess whether the needs of teacher and students are met. The analysis investigates whether sufficient and clear information is provided in order to enable teachers to carry out educational activities and interact with their students without uncertainties as to the potential legal consequences of their use and concerns regarding the protection of their content.

We believe that critically reflecting on how remote learning service providers such as Zoom and Microsoft deal with the digital content that students and teachers share can greatly benefit IP students. First, it will help students understand the importance of private ordering in the context of copyright. While analysing legislation and case law remains important, nowadays it has become inescapable to look at how copyright is governed contractually. The remote learning scenario will help students understand how, in the field of copyright more so than in other fields, the legislative process is too slow and lobby-influenced to be able to regulate digital content adequately (Noto La Diega 2015).

Second, students are more likely to learn when the method or the subject matter affect them directly (Taylor and Parsons 2011). Affected by the pandemic in manifold ways, students are disengaged. Motivating them is of the utmost importance to achieve the learning outcomes and maximize student satisfaction. Motivation is regarded as the most important factor that educators should target in order to improve learning (Williams 2011). Reflecting on the copyright issues related to their own learning activities will foster motivation, resulting in more engaged and curious students.

Finally, copyright’s private ordering impinges on key copyright concepts: the legal notions of control, liability and content moderation. Buried in inaccessible terms of service, there are (i) licenses that effectively transfer the control over the learning contents from the teacher to the remote learning provider; (ii) terms that unfairly expose teachers and students to infringement actions; (iii) terms that allow remote learning providers to take down user content and disable accounts with little if any recourse.

This is part of a wider project with Rossana Ducato (Aberdeen), Alexandra Giannopoulou (Amsterdam), Chiara Angiolini (Trento), and Giulia Schneider (Sant’Anna). See e.g. here, here, and here.


Postdoctoral researcher, Institute of Law, Politics and Development (Dirpolis), Sant’Anna School of Advanced Studies, Pisa.

Intellectual Property and the Feminist Gaze

On Wednesday 30th September 2020, Stirling Law School hosted a guest lecture by Professor Ann Bartow (University of New Hampshire), former Director of the Franklin Pierce Center for Intellectual Property and a world-leading expert in Intellectual Property and feminst legal theory.

This was an exciting talk ranging from gender-fluid robots through to quilting. Professor Bartow convincingly argued that white cishet males have shaped Intellectual Property law, policy and practice and that much is still to be done to embed equality in Intellectual Property.

111th Annual Conference of the Society of Legal Scholars

At the 111th Annual Conference of the Society of Legal Scholars, I’ve presented two papers in the Intellectual Property and Cyber Law sessions. Respectively:

  1. On 1st September 2020 15-16:30 UK time – Panel “New Developments in IntellectualProperty Law” (IP session)

With Prof. Cristiana Sappa (IESEG), we’ll present “The Internet of Things at the intersection of dataprotection and trade secrets. Non-conventional paths tocounter data appropriation and empower consumers

The Internet of Things (IoT) has heralded a never-before-seen quantity of high-quality data. This includes both personal and non-personal data. Factual and legal control over IoT data gives companies unparalleled power to influence consumers, policy makers, and the other stakeholders of the IoT’s supply chain. The combination of analytics algorithms, the data goldmine structure and the output of data processes are regularly kept secret by businesses. Leveraging this portfolio of big data and trade secrets, IoT companies put in place practices that can negatively affect consumers, who are often unaware of them due to technical and legal secrecy. ‘Technical’ secrecy results from the opacity of the algorithms that underpin the IoT, especially when AI-enabled. ‘Legal’ secrecy, in turn, come from a combination of trade secrets and strategic contract management that keep IoT data practices secret. This begs the central research question of this article: how can consumers be empowered to counter IoT data appropriation?

Traditional consumer protection approaches, epitomised by the Consumer Rights Directive, are focused on pre-contractual duties to inform consumers. Their benefit to IoT consumers is limited by their reflecting a text-based paradigm, whereby information must be legible. This is not fit for the IoT, where displays tend to disappear and information is provided in audio or video formats. Consumer laws are drafted on the assumption of information asymmetries in business-to-consumer contracts, but they fail to account for the power imbalances that permeate IoT transactions. These power imbalances are exacerbated by control over a wealth of user data and corresponding granular knowledge of consumers’ vulnerabilities, behaviors, and biases. This knowledge can be used to impose opaque practices on consumers; among these, IoT data appropriation by means of trade secrets plays a key role.

Therefore, an emergent concern is whether the law provides tools that effectively safeguard consumers’ interests, in particular by ensuring substantial transparency as to the actual use of their personal data. How can this can be guaranteed, and the consumer empowered in a post-interface world of profoundly imbalanced relationships? The answer cannot be found solely within the trade secrets’ regime: data protection needs to be considered.

This article focuses on the trade secrets exceptions of legitimate interest and freedom of information, and on the General Data Protection Regulation (GDPR)’s rights to access, data portability, information, and not to be subject to solely automated decisions. We put forward that trade secrets’ exceptions and GDPR rights re-balance the interests of consumers vis-à-vis big IoT players such as Amazon. We propose a holistic approach that empowers consumers by countering data appropriation, thus redistributing data control.

2. On Thursday 3rd September 2020 at 15:15-16:45 UK time, Panel “Privacy at the Edges” (Cyber Law session)

I’ll present “The Internet of Personalised Things. IoT-Powered Consumer Manipulation as an Unfair Commercial Practice has been accepted for presentation at the 111th Annual Conference of the Society of Legal Scholars (you can still register!). The conference is organised by the University of Exeter under the leadership of Professor Rebecca Probert. It will take place on 1-4 September 2020 and, for the first time in the SLS‘s herstory, it will be entirely virtual (which brings the registration fee down!)

Personalisation is one of the key befits of the Internet of Things (IoT). IoT traders can combine data from multiple sources and access consumers’ most private spaces. At the same time, these traders retain control over their smart devices (‘Things’) throughout their lifecycles.

Thanks to this combination of deep knowledge of the consumer and control over the Thing, IoT traders can personalise products, services, prices, and even the terms of service that regulation the business-to-consumer relationship. The problem is that personalisation can lead to consumer manipulation and even discrimination – such detrimental effects can be referred to as the ‘Internet of Personalised Things’.

Situational data and information about consumers’ biases and vulnerabilities allow IoT traders to influence consumers’ decision-making in surreptitious ways. This can go from instilling the desire to purchase useless or even dangerous Things, to the exclusion of BAME people from certain job ads, through to electoral manipulation.

My paper will critically assess whether unfair trading laws – and in particular the Unfair Commercial Practices Directive as amended in 2020 – are fit for purpose and can provide a successful strategy to re-empower consumers, thus re-building trust in the IoT.

It is suggested that, despite some shortcomings, this regime can be invoked by consumer to counter IoT-powered manipulation, especially as the Directive provides special protections for vulnerable consumers and against traders’ undue influence impairing consumer freedom of choice.

The Directive does have some limitations but this should not come as a surprise. Being a neoliberal instrument aimed at pursuing a perfectly competitive single market, it cannot provide an entirely satisfactory response to an issue that capitalism itself created, namely the problem of manipulated needs as discovered by Marx.

You can still register here

Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching

On Friday 23 October, with Bernd Justin Jütte (Ireland)**, Giulia Priora (Italy), and Léo Pascault (France) we will present “Learning by Infringing? Copyright Private Ordering in Post-COVID Remote Teaching” at the 12th Worldwive Annual Conference of the European Intellectual Property Teachers’ Network (EIPTN). The program is available here.

The rapid spread of COVID-19 in March 2020 shut down universities in most European countries. Teaching moved online and most universities are currently planning to deliver at least part of their teaching in the coming academic year in a blended form. With the online shift of teacher-student interactions, the choice of the teaching medium has never been more important (Ducato et al. 2020).

The post-pandemic university will have to make a responsible choice with regards to which tools to use to deliver their courses. Digital tools developed and operated by third parties significantly affect teachers’ and students’ fundamental rights and freedoms, including IP rights. Our research sheds light on the copyright issues arising from the use of some popular remote teaching platforms (e.g. Zoom) and it critically assesses whether these concerns remain pertinent in a post-COVID blended learning environment (Pascault et al. 2020).

Our project has analysed so far the terms and conditions, privacy policies and community guidelines of a sample of nine online services used across Europe in order to assess whether the needs of teacher and students are met. The analysis investigates whether sufficient and clear information is provided in order to enable teachers to carry out educational activities and interact with their students without uncertainties as to the potential legal consequences of their use and concerns regarding the protection of their content.

We believe that critically reflecting on how remote learning service providers such as Zoom and Microsoft deal with the digital content that students and teachers share can greatly benefit IP students. First, it will help students understand the importance of private ordering in the context of copyright. While analysing legislation and case law remains important, nowadays it has become inescapable to look at how copyright is governed contractually. The remote learning scenario will help students understand how, in the field of copyright more so than in other fields, the legislative process is too slow and lobby-influenced to be able to regulate digital content adequately (Noto La Diega 2015).

Second, students are more likely to learn when the method or the subject matter affect them directly (Taylor and Parsons 2011). Affected by the pandemic in manifold ways, students are disengaged. Motivating them is of the utmost importance to achieve the learning outcomes and maximize student satisfaction. Motivation is regarded as the most important factor that educators should target in order to improve learning (Williams 2011). Reflecting on the copyright issues related to their own learning activities will foster motivation, resulting in more engaged and curious students.

Finally, copyright’s private ordering impinges on key copyright concepts: the legal notions of control, liability and content moderation. Buried in inaccessible terms of service, there are (i) licenses that effectively transfer the control over the learning contents from the teacher to the remote learning provider; (ii) terms that unfairly expose teachers and students to infringement actions; (iii) terms that allow remote learning providers to take down user content and disable accounts with little if any recourse.

This is part of a wider project with Rossana Ducato (Aberdeen), Alexandra Giannopoulou (Amsterdam), Chiara Angiolini (Trento), and Giulia Schneider (Sant’Anna). See e.g. here, here, and here.


** Assistant Professor in Intellectual Property Law, University College Dublin, Sutherland School of Law and Senior Researcher, Faculty of Law, Vytautas Magnus University, Kaunas

Postdoctoral researcher, Institute of Law, Politics and Development (Dirpolis), Sant’Anna School of Advanced Studies, Pisa.

PhD candidate at Sciences Po Law School.

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