Against the Dehumanisation of Decision-Making. Algorithmic Decisions at the Crossroads of IP, Data Protection, and Freedom of Information

You can find here the full text of my latest work on algorithms and automated decision making with a focus on intellectual property, the EU General Data Protection Regulation (GDPR), and freedom of information.

Nowadays algorithms can decide if one can get a loan, is allowed to cross a border, or must go to prison. Artificial intelligence techniques (natural language processing and machine learning in the first place) enable private and public decision-makers to analyse big data in order to build profiles, which are used to make decisions in an automated way.

This work presents ten arguments against algorithmic decision-making. These revolve around the concepts of ubiquitous discretionary interpretation, holistic intuition, algorithmic bias, the three black boxes, psychology of conformity, power of sanctions, civilising force of hypocrisy, pluralism, empathy, and technocracy.

The lack of transparency of the algorithmic decision-making process does not stem merely from the characteristics of the relevant techniques used, which can make it impossible to access the rationale of the decision. It depends also on the abuse of and overlap between intellectual property rights (the “legal black box”). In the US, nearly half a million patented inventions concern algorithms; more than 67% of the algorithm-related patents were issued over the last ten years and the trend is increasing.

To counter the increased monopolisation of algorithms by means of intellectual property rights (with trade secrets leading the way), this paper presents three legal routes that enable citizens to ‘open’ the algorithms.

First, copyright and patent exceptions, as well as trade secrets are discussed.

Second, the GDPR is critically assessed. In principle, data controllers are not allowed to use algorithms to take decisions that have legal effects on the data subject’s life or similarly significantly affect them. However, when they are allowed to do so, the data subject still has the right to obtain human intervention, to express their point of view, as well as to contest the decision. Additionally, the data controller shall provide meaningful information about the logic involved in the algorithmic decision.

Third, this paper critically analyses the first known case of a court using the access right under the freedom of information regime to grant an injunction to release the source code of the computer program that implements an algorithm.

Only an integrated approach – which takes into account intellectual property, data protection, and freedom of information – may provide the citizen affected by an algorithmic decision of an effective remedy as required by the Charter of Fundamental Rights of the EU and the European Convention on Human Rights.

Recommended citation: Guido Noto La Diega, Against the Dehumanisation of Decision-Making – Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information, 9 (2018) JIPITEC 3 para 1.

Can the law fix the problems of fashion? An empirical study on social norms and power imbalance in the fashion industry

The fashion industry is affected by an imbalance of power that goes beyond the outsourcing of part of the manufacture to developing countries. Said imbalance characterizes the whole supply chain and hinders freedom of expression, freedom to conduct business and, hence, creativity and innovation. In order to understand fashion, IP lawyers and lawmakers need to take into account that the law is not the main device for regulating the relevant relationships. Indeed, fashion is a closed community, a family where complaining is rather frowned upon and where contracts do not reflect the actual relationships between the parties.

In order to rebalance power, this article explores the possibility of treating good faith and inequality of bargaining power as unifying principles of contract law. However, in light of the evidence collected during a number of in-depth interviews with fashion stakeholders, it seems clear that social norms are the main source of regulation of relationships and, therefore, intervening at the level of the contracts may not be helpful. Competition law, in turn, may be of more help in rebalancing power; however, cases such as Coty v Parfümerie Akzente do not augur well. Moreover, competition law is useful when the relationship is over, but it is in all the stakeholders’ interest to keep the relationship alive while fixing its imbalance. This study confirms recent findings that social norms do not just have a positive impact on fields with low IP-equilibrium and sheds light on the broader consequences of the reliance on social norms and on its relationship to power imbalance.

This work makes a twofold recommendation. First, IP lawyers should engage more with the unfamiliar field of social norms. Second, advocates of a reform of IP aimed at transforming the industry into an IP-intensive one should be mindful that the effort may prove useless, in light of the role of social norms, especially if power is not distributed.

This is the abstract of Guido Noto La Diega, ‘Can the law fix the problems of fashion? An empirical study on social norms and power imbalance in the fashion industry’ (2018) Journal of Intellectual Property Law & Practice, jpy097, https://doi.org/10.1093/jiplp/jpy097

Please find the full text here

Uber Law and Awareness by Design. An Empirical Study on Online Platforms and Dehumanised Negotiations

I have published an article that sheds light on the main consumer law aspects of the sharing economy through an empirical analysis of online platforms. Given the recent European consultation with the purpose of understanding (whether, or, more likely) how to regulate platforms, it is critical that consumer law considerations will be part of future regulations. For instance, it is hardly acceptable that the consumer acts in the belief that the contractual party (thus the potentially liable party) is the platform, but in reality the former disclaims any responsibility and claims to be a mere intermediary, which only seldom actually is.

After a critical analysis of the Italian legislative proposal on platforms and collaborative economy, the articles moves on to illustrate the use case of Uber, the $60 billion ride-hailing platform, which is acting at the margin of existing laws, thus giving rise to protests and debate around the world. After an assessment of the Italian ruling preventing Uber to provide the UberPop service in Italy, the use case is the perfect tool to show the main reasons for concern of consumers is the lack of awareness of their rights and obligations. This articles deals with two factors of the said lack: the contractual quagmire and the corporate labyrinth.

In the conclusions, an ambitious, albeit feasible, practical proposal is presented. It is suggested the development of a mobile app that helps the consumers to assess the legal quality of the contracts they are entering in order to access the services offered through the platform. At the same time, this app, called ‘Awareness by Design’, should contribute to raise awareness in consumers, thus creating critical mass and making platforms understand that trust, transparency, and accountability are competitive advantages.

Please cite as Guido  Noto La Diega, ‘Uber Law and Awareness by Design. An Empirical Study on Online Platforms and Dehumanised Negotiations’ (2016) 2 Revue européenne de droit de la consommation/ European Journal of Consumer Law 383

The full text is available at https://ssrn.com/abstract=3277557

Some considerations on intelligent online behavioural advertising

The Cambridge Analytica scandal in March 2018 was a useful reminder of how personal data is used to target users and of how such targeting has profound societal consequences.

Online behavioural advertising refers to advertisements, which are tailored to the tastes and habits of the user who actually views them. It is an intricate phenomenon for a number of reasons, including a twofold regulatory interweave. Firstly, between top-down and self-regulation. Secondly, between the personal data perspective and the competition one.

My paper Some considerations on intelligent online behavioural advertising is now live and open access. It aims to get the knots out in the belief that rising awareness about the issues in online behavioural advertising is pivotal to a fair online environment. The paper is particularly timely in light of new regulations (draft ePrivacy Regulation and General Data Protection Regulation), worrying industry moves (e.g. the Facebook / WhatsApp data synchronisation), and the advent of new technologies.

In particular, it will be shown that artificial intelligence presents not only threats to consumers, but also opportunities for bespoke compliance mechanisms. As an appendix, the “Cooperative Charter for an Integrated Approach to Online Behavioural Advertising” is presented in order to facilitate the dialogue between the stakeholders and ensure a balanced regulation of online behavioural advertising.

Please cite as Guido Noto La Diega, ‘Some considerations on intelligent online behavioural advertising’ (2017) 66-67 Revue du droit des technologies de l’information 53-90

Full text is here

Emergency Remote Teaching: a study of copyright and data protection terms of popular online services (Part I)

What happens to teachers’ and students’ digital content and personal data once all learning is moved online?

With a group of colleagues from the UK, Italy, Belgium, France, and the Netherlands, we have analysed the terms of service and privacy policies of Emergency Remote Teaching tools such as Zoom, Teams, and Moodle. In this first part, we have focused on the copyright issues, and in particular on issues of ownership/control, liability/infringement, and content removal/teaching exception.

You can find the full text of the post on the Kluwer Copyright Blog

This research was 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), and Giulia Schneider (Sant’Anna).

I have presented it on Friday 3rd July 2020 at the at the Strathclyde Centre for Internet Law & Policy webinar series (info here).

Part II of the research, with a privacy focus, is available here.

SCILP Seminar – ‘Copyright Issues In Remote Emergency Teaching’ – Assoc Prof Guido Noto La Diega

Artificial Intelligence and Databases in the Age of Big Machine Data

AIDA has now been published and it contains my contribution to the AI and IP debate: Artificial Intelligence and Databases in the Age of Big Machine Data

This paper deals with those databases where Artificial Intelligence technologies are used to obtain, verify, or present the database’s contents (‘AI databases’). 

The overarching research question is whether AI databases can be protected under the copyright and sui generis regimes provided by the Database Directive. The alleged inadequacy of the sui generis right for the data economy and, in particular, for machine- generated data led the European Parliament to call on the Commission to abolish said right and the Commission to propose the introduction of a data producer’s right as a new property that would have done what the sui generis right had been unable to. 

It is this paper’s contention that, contrary to popular belief, the sui generis right is fit for AI databases and that a different solution would lead to overprotection of said subject matter by contractual means. The sui generis right may be the best, if not the only, way to protect AI ‘authorial’ works. Indeed, even if AI works currently fall outside the scope of copyright law for lack of originality, they could nonetheless be protected if part of a database. Thus, thanks to AI, the sui generis right may become more important than ever.

More info here. AIDA 2018 is available on IusExplorer.

Please cite as Guido Noto La Diega, ‘Artificial Intelligence and Databases in the Age of Big Machine Data’ (2019) 25 AIDA 2018 93

Can Permissionless Blockchains be Regulated and Resolve Some of the Problems of Copyright Law?

I’m delighted to share my latest research on blockchains and copyright!

In October 2018, the European Parliament passed a resolution on distributed ledger technologies that recognised blockchains’ potential to disrupt copyright and creative industries. The aim of ‘Can Permissionless Blockchains be Regulated and Resolve Some of the Problems of Copyright Law?’ – chapter I co-authored with James Stacey – is to examine blockchain technologies and provide an assessment of their disruptive potential upon the legal sphere of intellectual property, and in particular copyright in the music industry.

In order to do so, this chapter will start off by clarifying that the blockchain does not exist, because there are several different types of blockchains and, accordingly, different legal and regulatory issues are involved. After identifying the type of permissionless blockchain that is analysed in this chapter – that is permissionless, Turing complete, open, distributed, peer-to-peer, transparent, tamper-resistant and censorship resistant –, we move on to identify the definitional and non-definitional features of blockchain technologies.

For the blockchain to unleash its disruptive potential, it must be clarified whether it complies with existing laws and whether new regulations are needed. Should existing regulations be found insufficient, only then a serious discussion around new regulations could be started and this should take into account the necessity not to stifle innovation, the level of development of the relevant technologies, the importance of involving all the stakeholders and to place the discussion at a supra-national level.

The focus of the chapter is to critically assess whether public permissionless blockchains can be used to disrupt intellectual property law by resolving some of the problems in copyright law, with particular regard to the issues of copyright registration, infringement, and transactions.

It will be shown how the blockchains can resolve the registration issues by allowing forms of tamper-resistant, censorship-resistant, user-friendly, and privacy-friendly copyright registration.

As to infringement, the blockchains can prevent it by making it easier for copyright owners to track the use of their works and for music consumers and new intermediaries such as Spotify and iTunes to identify the owners, seek a license, and pay the royalties.

Finally, smart contracts could be used to automate licensing and as forms of digital rights management, but this could be criticised from an efficient breach perspective, as well as by pointing out the difficulties of this technology in coping with copyright exceptions or defences.

It is perhaps too soon to conclude that a 10-year-old technology will ultimately disrupt copyright, but there are already some indications that the Ethereum-type blockchains’ features will radically change copyright by fixing some of its most urgent problems.

The full text can be downloaded from the Research Projects section of this website.

Please cite as Guido Noto La Diega and James Stacey, ‘Can Permissionless Blockchains be Regulated and Resolve some of the Problems of Copyright Law?’, in Massimo Ragnedda and Giuseppe Destefanis, Blockchain and Web 3.0: Social, Economic, and Technological Challenges (Routledge 2020) 30-47

Can AI and the IoT be Governed to Achieve the UN Sustainable Development Goals? An Intellectual Property Law Perspective

The WTO can play an important role in achieving the UN sustainable development goals. Investments in AI and IoT could go a long way, in that these technologies 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 laws – and IP laws above all, given their role in incentivising creativity and innovation – that are fit for AI and IoT.

AI could lead to unprecedented research developments with revolutionary impact on healthcare. They would do so not only by changing the way we carry out research – with AI-powered data mining and cancer-predicting deep learning models – but also by making us rethink certain IP laws. The reference is to the patent system that has hitherto been abused by pharmaceutical companies that have developed strategies to retain perpetual and absolute monopolies on medical inventions, thus preventing access to medicines, especially in developing and least-developed countries.

AI could change this. It could, indeed, change the standard currently applied to assess one of the key requirements for patentability, i.e. inventive step. We currently assess if an invention presupposes an inventive step and is hence patentable from the point of view of the ‘person skilled in the art’, a notional worker who lacks ingenuity and has limited knowledge. With AI becoming commonplace and increasingly creative, the new standard to be adopted may and should be the AI-enhanced researcher. Such a person would be more likely to consider new inventions as obvious and this would counter the over-protection of pharmaceutical inventions.

Finally, the IoT is set to disrupt all the fields and all the laws that have been built on the good-product and hardware-software dichotomy. Patent laws are likely to be profoundly impacted – and may need a significant revision – because their exclusion from 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.

To conclude, IP laws are likely to play a limited role in governing AI and the IoT. It seems more probable that these technologies will ‘govern’ current IP laws in the sense of leading to new interpretation and policies that will make them more ‘sustainability-friendly’.

Click here for the full paper

Blockchain-enabled smart contracts, copyright licensing, and the right to change one’s mind

The concept of smart contract predates the blockchain and was first presented in 1994 by Nick Szabo who defined it as ‘a computerized transaction protocol that executes the terms of a contract.’ The promise of automated execution has become even more alluring with the new generation of smart contracts, that are a collection of code and data (…) that is deployed using cryptographically signed transactions on the blockchain network.’ Indeed, these new smart contracts inherit all the features of the underlying blockchain infrastructure, including ‘the tamperproof nature (…) that anchors their automated execution.’ In a music copyright context, smart contracts could be used for several purposes, such as to automate the execution of a licence or as a form of digital rights management (DRM).

Whilst the use of blockchain-based smart contracts in copyright can be praised or criticised for a number of reasons, this article will assess their compatibility with a principle that we deem inherent to our legal system, i.e. the right to change one’s mind. Contract law is designed to recognise such a right. This can be inferred by the compensatory nature of damages pursuant to the theory of efficient breach, and the prevalence of damages over specific performance. Since smart contracts ‘prohibit or make more costly efficient breach,’ should their adoption be encouraged?

Please find the full text of the blog post at https://infolawcentre.blogs.sas.ac.uk/2019/10/16/blockchain-enabled-smart-contracts-copyright-licensing-and-the-right-to-change-ones-mind-guido-noto-la-diega-phd-fhea/

Who owns AI creations?

The World Intellectual Property Organization (WIPO) has received more than 250 responses to its call for public comment on a Draft Issues Paper on Intellectual Property Policy and Artificial Intelligence, with submissions collected from a wide array of stakeholders from across the globe.

I am one of the experts who submitted their comments. My main recommendations are as follow:

A. The scope of WIPO’s policies and documents regarding AI should be better defined by both defining AI and, given that AI is a controversial and fuzzy umbrella term, the focus should be on the main AI technologies, starting with machine learning.

B. The law should exclude from the availability of patent protection any invention that has been generated autonomously by an AI application.

C. As for AI-aided inventions, their examination should be stricter and the main means to achieve this end would a shift from the ‘person skilled in the art’ to the AI-enhanced researcher.

D. Prior art should not be limited to the field of technology of the product or service that emerges from the invention; it should include also the fields that are related to it and may be affected by it. AI-generated content should quality as prior art.

E. A condition of the renewal of a patent should be the renewed disclosure of the machine learning algorithm as is at the date of the request of renewal. A system of deposit for algorithms, similar to the deposit of microorganisms, would be useful. The data used to train the algorithm should be included in the disclosure.

F. A sui generis right should be considered as an option both for AI inventions and AI works (collectively ‘big machine data’). Such sui generis right should be accompanied by binding and mandatory fair use provisions; contracts and technological protection measures should not be allowed to sidestep or run counter the sui generis fair use. WIPO should commission legal and economic studies to assess the viability and impact of such a proposal.

G. AI works fall outside the scope of copyright law. They are not their author’s own intellectual creation, they do not carry their personal touch, nor are they the result of free and creative choices.

H. AI should not be given legal personality. Such a personality would not cope well with copyright rules and principles and could be used by human infringers to attempt to escape liability.

Please download the full text here

Cite as Guido Noto La Diega, ‘Comments on WIPO’s Draft Issues Paper on Intellectual Property and Artificial Intelligence’ (WIPO/IP/AI/2/GE/20/1) (WIPO.int, 21 December 2019). WIPO Public Consultation on AI and IP Policy. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3551908

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