René Mahieu, ‘The right of access to personal data: A genealogy’

In this paper, I analyze several traditions of data protection to uncover the theoretical justification they provide for the right of access to personal data. Contrary to what is argued in most recent literature, I do not find support for the claim that the right follows from the German tradition of ‘informational self-determination’ or Westin’s idea of ‘privacy as control’. Instead, there are two other less known theories of data protection which do offer a direct justification for the right of access. First, American scholars Westin and Baker developed the ‘due process’ view according to which access helps to expose error and bias in decision-making, thereby contributing to correct decisions and allowing the people who are affected to be involved in the decision making. Second, in what I call the ‘power reversal’ view of access, Italian legal scholar Rodotà argues that, in particular when seen from a collective point of view, the right enables social control over the processing of personal data and serves as a counterbalance to the centers of power by placing them under the control of democratic accountability.

Mahieu, René, The right of access to personal data: A genealogy, Technology and Regulation, 2021, 62–75, Published 2021-08-20.

Fishman and Garcia, ‘Authoring Prior Art’

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow question of whether someone might have drawn from a preexisting third-party source, copyright infringement disputes would seem to have little doctrinal use for prior art.

But that principle turns out to be missing a big part of what’s actually going on in copyright litigation today. In this Article, we identify a surprising trend: parties in cases involving music are increasingly discussing anticipatory earlier works, and judges are increasingly holding it against them if they don’t. The concept of prior art, once for inventors only, is now for authors, too.

A major cause for this change, we argue, is the influence of a small cadre of expert witnesses. We interviewed several of the most active experts in music copyright disputes, and we analyzed dozens of reports that they have filed over the last two decades. Our data revealed a group that has been focused on authorial prior art since well before the courts were. These experts’ professional self-understanding, moreover, diverges sharply from the traditionally limited role that experts are supposed to play in evaluating copyright infringement. They view prior art research as a major part of their job. And for many of them, that research is important not just because it can sift between copying and independent creation, but also because it informs their normative view of what expression deserves legal exclusivity in the first place. Because of this expert community, prior art isn’t just for patents anymore.

Fishman, Joseph and Garcia, Kristelia, Authoring Prior Art (November 18, 2021). Vanderbilt Law Review, forthcoming 2022.

Gurgula, Padamczyk and Shemtov, ‘Specialised IP Judiciary: What are the Key Elements to Consider When Establishing or Reforming an Effective IP Court?’

Intellectual property (‘IP’) is one of the key instruments for fostering innovation and promoting the growth of national economies. Given both the economic significance and the legal complexities associated with IP rights due to constant technological development, the benefits of having specialised IP judiciary are increasingly recognised across the globe. Many countries have either established or have been considering the introduction of various forms of such specialised judiciary. This paper examines this trend and explores some key considerations in relation to the efficacy of IP judiciary. It draws on some of the findings of a recently completed project funded by the UK Government on the creation and functioning of a new IP court in Ukraine. While there is no ‘one size fits all’ model when creating specialised IP judiciary, the discussion in this article sheds light on a number of key factors that should be taken into account and carefully assessed when establishing or reforming such judiciary. This includes specific considerations related to the structure of IP judiciary, its location, specialisation of IP judges, exclusive jurisdiction and other procedural issues. We believe that the guidance provided in this article will assist policy makers in their choices regarding the most suitable design of an IP judiciary for a particular jurisdiction leading to the enhancement of its operation for the benefit of all the stakeholders of the IP enforcement system.

Gurgula, Olga and Padamczyk, Maciej and Shemtov, Noam, Specialised IP Judiciary: What are the Key Elements to Consider When Establishing or Reforming an Effective IP Court? (November 24, 2021). Queen Mary Law Research Paper No 371/2021.

Guerra and Parisi, ‘Investing in Private Evidence’

Technological advances have changed our ability to acquire and save information, with far-reaching implications in legal discovery and evidence. In this paper, we analyze the interrelated effect of legal presumptions and discovery rules in incentivizing the voluntary adoption of private evidence technology. We show that, under any legal presumption, by making private evidence investments not discoverable, more evidence, rather than less, would be made available to courts, with a likely increase in the accuracy of adjudication. Alternative legal presumptions and asymmetries in role-probabilities affect the type of evidence technology likely to be adopted. We compare the legal presumptions and discovery rules adopted in the US and Europe and consider which evidence regime is likely to foster greater investments in private evidence.

Guerra, Alice and Parisi, Francesco, Investing in Private Evidence (October 25, 2021). Minnesota Legal Research Series 21-11.

Jie Wu, ‘Intellectual property institutions and innovation of emerging multinational companies’

Using a panel data of Chinese firms’ internationalization activities, we assess whether intellectual property (IP) institutions in a host country benefits or impedes innovation of emerging multinational companies (EMNCs). We show that IP institutions in a host country enable an EMNC to obtain critical technologies for innovation, and moderate IP institutions are optimal levels for innovation development in this context. Moreover, the efficiency of EMNCs in benefiting from IP institutions for innovation increases when EMNCs develop strong absorptive capacity. Our findings integrate institutional logics, which views institutional environment as the key factor for innovation, and the resource-based view, which notes that firm-specific capabilities have critical influences on firm performance and competitive advantage. We discuss the implications of these findings on institutional environments and firm innovation research in emerging economies.

Wu, Jie and Wu, Jie, Intellectual property institutions and innovation of emerging multinational companies (September 28, 2021). Research Handbook on Knowledge Transfer and International Business 2021.

‘A Blow For Collective Redress In The UK? Lloyd v Google [2021] UKSC 50′

“Those familiar with Competition law will be aware that collective proceedings before the Competition Appeal Tribunal are burgeoning. And it might have been hoped that the Consumer Rights Act 2015, and the recent flurry of collective proceedings that have been certified by the Tribunal following the Supreme Court judgment in Mastercard v Merricks [2020] UKSC 51, would have blazed a trail for collective redress in the United Kingdom – that where the Consumer Rights Act led, CPR Rule 19 might follow. There is a sore need in the UK for an effective mechanism for collective redress …” (more)

[Laura Elizabeth John, Monckton Chambers, 25 November]

‘Privacy and Reputational Harm’

“Next week, on 30 November and 1 December 2021, the Supreme Court will hear arguments in ZXC v Bloomberg LP. The case gives the court an opportunity to answer one of the most important questions which has emerged in English privacy law in recent years: does a person who has not been charged with an offence have a reasonable expectation of privacy in a police investigation into their activities? …” (more)

[Jeevan Hariharan, Inforrm’s Blog, 26 November]

‘Don’t Forget About the Fakes’

Reid Kress Weisbord and David Horton, ‘Inheritance Forgery’, 69 Duke Law Journal 855 (2020). In the Estates textbook I use, most of the will execution cases involve testators whose clear intent is unrealized because they bungled strict execution requirements. The Uniform Probate Code and the Restatement (Third) of Property: Wills and Other Donative Transfers – mainstays in any Estates class – are drafted to minimize the possibility of formal requirements interfering with testator intent. Reis Kress Weisbord and David Horton’s ‘Inheritance Forgery’ is a counter-narrative that demonstrates how forgery remains a real and substantial risk of which the law must take account … (more)

[Sarah Waldeck, JOTWELL, 25 November]

‘Third Party Violence at Work: The Problem of Causation – Cunningham v Rochdale MBC [2021] EWCA Civ 1719′

“On 19 November 2021 the Court of Appeal handed down judgment in an important decision on an employer’s liability claim for damages for personal injury suffered by an Assistant Head Teacher who was assaulted by a pupil. Dingemans LJ gave the sole reasoned judgment, with which Andrews and Arnold LJJ agreed, dismissing the Claimant’s appeal against the dismissal of his claim after trial …” (more)

[Jack McCracken, Ropewalk Chambers, 25 November]

‘The Immunity of the Holy See in Sexual Abuse Cases – the ECtHR decides JC v Belgium

“In multiple countries, allegations of sexual abuse in the Catholic Church have led to lawsuits against dioceses and clergy, and the establishment of investigation and claims commissions. However, because of the relatively muted response of the Holy See to the scandals, in some countries, victims have also filed tort suits in domestic courts against the Holy See directly. This has, for instance, happened in the United States, but also in Belgium …” (more)

[Cedric Ryngaert, Utrecht CALL, 25 November]