The necessity of data allocation: A plea for a private law (property law) perspective

2021 ◽  
Vol 10 (2-3) ◽  
pp. 180-240
Author(s):  
Ferenc Szilágyi
Keyword(s):  
Legal Status ◽  
Open Data ◽  
Personal Data ◽  
Property Law ◽  
Private Law ◽  
Data Allocation ◽  
Data Governance ◽  
European Data ◽  
The Creation ◽  
Access Right

Abstract Clarifying the legal status of data is one of the major issues and challenges the European legislator has to deal and cope with while establishing a legal frame for a European data economy. Albeit at the beginning of the policy-making process the idea of creating a data right (on non-personal data) was on the agenda of the European Commission, this idea now seems to be have been abandoned. Instead, the focus actually lies on the creation of access and management regimes (e.g. Open Data Directive, Proposal for a European Data Governance Act). This approach seems, from a private law perspective, questionable, since the access right is inherently connected to – or more precisely, flowing from – an allocative right (in its most classical form: ownership). This article is a plea for a private law, or more precisely, property law perspective, namely for the creation of an allocative data right. It explores why the access approach from a private law perspective appears to be inconsistent and outlines the contours of such allocative right. In this context, contemporary property law theories are also assessed, since it is primarily property law which shall serve as the doctrinal background and framework for the envisaged allocative data right.

The Development of European Data Protection Law and Regulation

2019 ◽  
pp. 35-54
Author(s):  
David Erdos
Keyword(s):  
Data Protection ◽  
Legal Status ◽  
Personal Data ◽  
Working Party ◽  
Advisory Council ◽  
Human Right ◽  
General Data Protection Regulation ◽  
European Data ◽  
Regulatory Data ◽  
The Eu

This chapter explores the development of European data protection, both as a codified form of regulation and as a human right, from its inception to the present day. In contrast to more ʻclassicalʼ rights, such as freedom of expression and even privacy, data protection only emerged as a discrete concept with the rise of computer power in the 1970s. The focus in Europe from this time has been on elaborating a progressively more detailed and harmonized regulatory code to govern the processing of personal data across the EU and wider European Economic Area (EEA). Advisory Council of Europe Resolutions in the 1970s led to a binding but optional Data Protection Convention in the 1980s, to a mandatory Data Protection Directive in the 1990s, and finally to a General Data Protection Regulation (GDPR) in the 2010s which is directly applicable across the EU. In addition, data protection has increasingly been recognized as a fundamental right and, in particular, was included within the EU Charter that was drafted in 2000 and acquired pan-EU legal status in 2009. These developments have dovetailed with the emergence of a significant body of relevant Court of Justice of the EU (CJEU) jurisprudence. However, the regulatory Data Protection Authorities (DPAs) also remain critical interpretative actors and have issued a number of important opinions including through the Article 29 Working Party that under the GDPR has become the European Data Protection Board.

scholarly journals Basic Approaches to the Creation and Analysis of the Legal Status of News Publics

2020 ◽  
Vol 2020 (1) ◽  
pp. 208-217
Author(s):  
Anna G. Donskikh
Keyword(s):  
Social Networks ◽  
Legal Status ◽  
Personal Data ◽  
Legal Aspects ◽  
The Creation ◽  
Basic Approaches

The article analyzes the legal aspects of the functioning of news communities of social networks. The overwhelming popularity of publics has led to violations of the rights of users to the content and personal data they host, while at the same time there is a legal vulnerability of the communities themselves. It is necessary to develop a comprehensive legal status of publics as sources of original and popular content among journalists and users of social networks.

Property

2020 ◽  
pp. 276-292
Author(s):  
J. E. Penner
Keyword(s):  
Property Rights ◽  
Case Law ◽  
Property Law ◽  
Private Law ◽  
Making Sense ◽  
The Social ◽  
Bundle Of Rights ◽  
High Level

This chapter discusses property law. It considers the idea that property had a “nominalist” ontology, and it was in danger of “disintegration” as a working legal category for that very reason. Nominalism about property has had a significant impact in U.S. case law. The concern here, however, is whether it is a helpful stance to take as a theorist of property. The chapter argues that it is not. There are indeed “high” level abstractions about property which one cannot plausibly do without if one is to understand property rights and property law doctrine. Moreover, the “bundle of rights” (BOR) challenge does not assist one in making sense of these abstractions. The chapter then looks at the conceptual failure of BOR and the New Private Law as it relates to property. BOR is generally regarded as being underpinned by what might be called the Hohfeld-Honoré synthesis. The synthesis rests upon a fairly serious mistake, which is that while the Hohfeldian examination of jural norms is analytic if it is anything, Honor’s elaboration of the incidents making up ownership is anything but—it is functional. This means that Honoré describes the situation of the owner not principally in terms of his Hohfeldian powers, duties, and rights vis-à-vis others, but in terms of the social or economic advantages that an owner has by virtue of his position, and the terms and limitations of those advantages.

The Absurd Injunction to Not Belong and the Bidūn in Kuwait

2020 ◽  
Vol 52 (4) ◽  
pp. 726-732
Author(s):  
Claire Beaugrand
Keyword(s):  
Mobile Phone ◽  
Legal Status ◽  
Personal Data ◽  
Male Voice ◽  
Central System ◽  
Additional Remark ◽  
Special Mention ◽  
The Voice ◽  
Mobile Phone Camera

In a tweet posted on 29 March 2018, a bidūn activist—who was later jailed from July 2019 to January 2020 for peacefully protesting against the inhumane conditions under which the bidūn are living—shared a video. The brief video zooms in closely on an ID card, recognizable as one of those issued to the bidūn, or long-term residents of Kuwait who are in contention with the state regarding their legal status. More precisely, the mobile phone camera focuses on the back of the ID card, on one line with a special mention added by the Central System (al-jihāz al-markazī), the administration in charge of bidūn affairs. Other magnetic strip cards hide the personal data written above and below it. A male voice can be heard saying that he will read this additional remark, but before even doing so he bursts into laughter. The faceless voice goes on to read out the label in an unrestrained laugh: “ladayh qarīb … ladayh qarīna … dālla ʿalā al-jinsiyya al-ʿIrāqiyya” (he has a relative … who has presumptive evidence … suggesting an Iraqi nationality). The video shakes as the result of a contagious laugh that grows in intensity. In the Kuwaiti dialect, the voice continues commenting: “Uqsim bil-Allāh, gaʿadt sāʿa ufakkir shinū maʿanāt hal-ḥatchī” (I swear by God, it took me an hour to figure out the meaning of this nonsense), before reading the sentence again, stopping and guffawing, and asking if he should “repeat it a third time,” expressing amazement at its absurdity. The tweet, addressed to the head of the Central System (mentioned in the hashtag #faḍīḥat Sāliḥ al-Faḍāla, or #scandal Salih al-Fadala), reads: In lam tastaḥī fa-'ktub mā shaʾt (Don't bother, write what you want).

scholarly journals Open Data Resources for Clean Energy and Water Sectors in India

2019 ◽  
Vol 39 (06) ◽  
pp. 300-307
Author(s):  
Deep Jyoti Francis ◽  
Anup Kumar Das
Keyword(s):  
Open Data ◽  
Clean Energy ◽  
Open Science ◽  
Baseline Survey ◽  
Data Governance ◽  
Surrounding Water ◽  
Middle Income ◽  
Creative Commons ◽  
Country Level ◽  
Critical Issues

With the wave of digitalisation, institutions across countries are pushing for the creation of open data and their governance. FAIR Data Principles have initiated the publishing of open research data to the key stakeholders and practitioners in the low- and middle-income countries to meet their developmental goals through practical usage in problem-solving. Open Data, which is part of the Open Science movement, has transformed the regime structure at a transnational level for the governance of critical issues surrounding water and energy. This paper provides a baseline survey to look into the various open data initiatives in the areas of water and clean energy across countries in general and India in particular. Given the multifaceted challenges around the water-energy nexus existing in India, it is critical to identifying the open data initiatives and studying their governance at the country level. Since governance requires the participation of various institutions and multiple stakeholders, the research aims at highlighting the various initiatives such as participation of institutions and the application of Creative Commons (CC) licensing terms in the open data governance for clean energy and water sectors in India.

scholarly journals Arab Spring as a Factor of Emergence of Salafi Parties in the Middle East and North Africa

2020 ◽  
Vol 16 (3) ◽  
pp. 165-176
Author(s):  
T. R. Khayrullin
Keyword(s):  
Middle East ◽  
North Africa ◽  
Arab Spring ◽  
Legal Status ◽  
Political Struggle ◽  
Political Activities ◽  
Parliamentary Elections ◽  
New Development ◽  
The Creation ◽  
The Arab Spring

The article is devoted to the analysis of Salafi Islamism. Conservative Salafi Islamism during the events of the Arab spring received a new development. In particular, the fall of authoritarian regimes and the beginning of the democratic process in the Middle East and North Africa led to the creation of Salafi political parties. The Salafi sts believed, that in a favorable political environment, they would be able to defend their legal status and gain some privileges through participating in parliamentary elections. However, the creation of parties has deepened internal divisions within the Salafi movements. In particular, there were supporters among the Salafi sts, who defended the combination of student and political activities against those who considered participation in the political struggle as a temporary tactical action. The result of the disagreement was the emergence of a reformist movement, that began to see participation in politics as a tool for strengthening the position of the Salafi st movement.

Redistribution through Property Law

2020 ◽  
pp. 115-132
Author(s):  
Stephanie M. Stern ◽  
Daphna Lewinsohn-Zamir
Keyword(s):  
Well Being ◽  
Property Law ◽  
Private Law ◽  
Progressive Taxation ◽  
Transfer Payments ◽  
Cash Assistance ◽  
Property System ◽  
Monetary Transfers ◽  
Behavioral Phenomena

This chapter explains the importance of property for promoting equality in society and enhancing people's well-being. It then addresses the major legal debate regarding the method that should be used to redistribute welfare. There is much controversy in the literature as to whether redistribution should be attained solely through taxes and transfer payments (such as progressive taxation and cash assistance to needy families) or also via substantive rules of private law, including property law. The chapter shows how various behavioral phenomena support the use of private law rules alongside taxes and monetary transfers, with applications to two central property law issues: the choice of a family property system and compensation for takings of land.

The Dutch Participation Society Needs Open Data, but What is Meant by Open?

2017 ◽  
pp. 304-322
Author(s):  
Roel During ◽  
Marcel Pleijte ◽  
Rosalie I. van Dam ◽  
Irini E. Salverda
Keyword(s):  
Social Action ◽  
Web Sites ◽  
Information Exchange ◽  
Personal Information ◽  
Open Data ◽  
Data Access ◽  
Representative Democracy ◽  
Sensitive Information ◽  
Data Governance ◽  
Societal Benefit

Open data and citizen-led initiatives can be both friends and foes. Where it is available and ‘open', official data not only encourages increased public participation but can also generate the production and scrutiny of new material, potentially of benefit to the original provider and others, official or otherwise. In this way, official open data can be seen to improve democracy or, more accurately, the so-called ‘participative democracy'. On the other hand, the public is not always eager to share their personal information in the most open ways. Private and sometimes sensitive information however is required to initiate projects of societal benefit in difficult times. Many citizens appear content to channel personal information exchange via social media instead of putting it on public web sites. The perceived benefits from sharing and complete openness do not outweigh any disadvantages or fear of regulation. This is caused by various sources of contingency, such as the different appeals on citizens, construed in discourses on the participation society and the representative democracy, calling for social openness in the first and privacy protection in the latter. Moreover, the discourse on open data is an economic argument fighting the rules of privacy instead of the promotion of open data as one of the prerequisites for social action. Civil servants acknowledge that access to open data via all sorts of apps could contribute to the mushrooming of public initiatives, but are reluctant to release person-related sensitive information. The authors will describe and discuss this dilemma in the context of some recent case studies from the Netherlands concerning governmental programmes on open data and citizens' initiatives, to highlight both the governance constraints and uncertainties as well as citizens' concerns on data access and data sharing. It will be shown that openness has a different meaning and understanding in the participation society and representative democracy: i.e. the tension surrounding the sharing of private social information versus transparency. Looking from both sides at openness reveals double contingency: understanding and intentions on this openness invokes mutual enforcing uncertainties. This double contingency hampers citizens' eagerness to participate. The paper will conclude with a practical recommendation for improving data governance.

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