scholarly journals Is the EU human rights legal framework able to cope with discriminatory AI?

2021 ◽  
pp. 1-14
Author(s):  
Pablo Martínez Ramil
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Legal Framework ◽  
Fundamental Rights ◽  
Training Data ◽  
Machine Learning Techniques ◽  
Indirect Discrimination ◽  
Proportionality Test ◽  
The Eu

The challenges introduced by AI for the EU anti-discrimination legal framework have been a widely discussed topic among the doctrine. In the light of the 20th anniversary of the EU Charter of Fundamental Rights, the Commission released a regulatory proposal to tackle AI. This paper seeks to determine whether the proposal successfully addresses the existent pitfalls of the EU framework. First, this paper explores the functioning of AI systems that employ machine learning techniques and determines how discrimination takes place. Second, the article examines intellectual property rights as one of the main barriers for accountability and redressal of violations committed by an AI system. Third, the state of the discussion concerning the pitfalls of the existent EU approach towards non-discrimination is addressed. The available academic literature suggests that discriminatory outputs produced by an AI will amount to indirect discrimination in most scenarios. In this sense, cases of indirect proxy discrimination will likely pass the proportionality test, therefore justifying the discriminatory output. The last section of this article studies the Commission’s regulatory proposal. Although the document seems to effectively tackle discrimination caused by biased training data sets, this paper concludes that intellectual property rights and proxy discrimination still constitute significant barriers for the enforcement of anti-discrimination law.

Intellectual Property Rights and Integration by Conflict: The Past, Present and Future

2016 ◽  
Vol 18 ◽  
pp. 239-269 ◽  
Author(s):  
Martin HUSOVEC
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Fundamental Rights ◽  
Free Movement ◽  
The European Union ◽  
The Past ◽  
National Courts ◽  
Exceptions And Limitations ◽  
The Eu

AbstractThis paper analyses how the Court of Justice of the European Union resolves conflicting situations surrounding intellectual property rights (IPR). More specifically, it looks into how it approaches clashes of IPR with other fundamental rights and economic freedoms and with what consequences. Building upon previous literature, I advance the argument that the resolution of the conflict, by means of the proportionality interest-balancing exercise, pursues a pro-harmonisation agenda not only in the obvious context of free movement, but also in the setting of fundamental rights. I show that the recent Coty Germany ruling is likely to accelerate this trend because of its recognition of positive obligations of the Member States in the context of fundamental rights. It is argued that this could also be used by national courts to improve an existing IPR framework, in particular by filing preliminary references that question legislators’ choices such as non-implementation of permissible exceptions and limitations. After highlighting the importance of maintaining a separation between different policy levels (secondary law vs Charter), I outline why Coty Germany is a very worrying reading of Article 17(2) of the EU Charter, and suggest that this could be remedied by synchronising its interpretation with the Court’s doctrine of ‘specific subject matter’ in the context of free movement.

scholarly journals Against the dehumanisation of decision-making. Algorithmic decisions at the crossroads of intellectual property, data protection, and freedom of information

2020 ◽  
Author(s):  
Guido Noto La Diega
Keyword(s):  
Decision Making ◽  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Data Protection ◽  
Fundamental Rights ◽  
European Convention ◽  
Freedom Of Information ◽  
Property Data ◽  
The Eu

This work presents ten arguments against algorithmic decision-making. These re-volve around the concepts of ubiquitous discretionary interpretation, holistic intu-ition, algorithmic bias, the three black boxes, psychology of conformity, power of sanctions, civilising force of hypocrisy, pluralism, empathy, and technocracy. Nowadays algorithms can decide if one can get a loan, is allowed to cross a bor-der, or must go to prison. Artificial intelligence techniques (natural language pro-cessing and machine learning in the first place) enable private and public deci-sion-makers to analyse big data in order to build profiles, which are used to make decisions in an automated way. The lack of transparency of the algorithmic deci-sion-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 deci-sion. 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 mo-nopolisation of algorithms by means of intellectual property rights (with trade se-crets 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 se-crets are discussed. Second, the EU General Data Protection Regulation is critical-ly 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 in-formation 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 ap-proach – which takes into account intellectual property, data protection, and free-dom 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.

Protection of Intellectual Property Rights: Towards Harmonisation of Ukrainian and EU Law

2021 ◽  
Vol 10 (1-2) ◽  
pp. 221-240
Author(s):  
Volodymyr M. Kossak ◽  
Ihor Ye. Yakubivskyi ◽  
Mykola V. Oprysko
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Legal Framework ◽  
Practical Implementation ◽  
Association Agreement ◽  
The One ◽  
Protecting Intellectual Property ◽  
Ownership Rights ◽  
The Eu

Abstract The article analyses the civil law means of protecting the ownership rights to intellectual property from the standpoint of Ukrainian law and practice. The focus is on those means of protecting intellectual property rights envisaged by the Association Agreement between the EU and the eaec and their Member States, of the one part, and Ukraine, of the other part, and outlines the prospects for their practical implementation within the legal framework of Ukraine. Among the means of protecting intellectual property rights, prohibition of the misuse of intellectual property in a specific way is considered. The paper also analyses the ways of protecting intellectual property rights, which are aimed at restoring the situation that existed prior to their violation, in particular, the removal from the civil circulation of goods manufactured or put into civil circulation, thus causing a violation of intellectual property rights, and subsequent destruction of such goods.

scholarly journals The Essence of Intellectual Property Rights Under Article 17(2) of the EU Charter

2019 ◽  
Vol 20 (6) ◽  
pp. 840-863 ◽  
Author(s):  
Martin Husovec
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Fundamental Rights ◽  
The Other ◽  
Charter Of Fundamental Rights ◽  
The Absolute ◽  
Legislative Changes ◽  
Relative Theory ◽  
The Eu

AbstractSmoking kills. It is also very costly, which is why many governments try to change the habits of their citizens, including by changing the packaging of the products they buy. Of course, tobacco firms are pushing against such laws. They see their rights, in particular, rights to intellectual property, violated. They argue that such legislative changes take away the essence of their hard-earned IP rights and should not be permissible. They point out that the CJEU is allegedly redefining the “essence” of fundamental rights and its function in the system of limitations and developing a set of core inviolable rights.How justified are these arguments? The absolute theory of essence says that the essence of rights cannot be interfered with or taken away, including by the legislator. The relative theory of essence, on the other hand, claims that interference with essence is just a more serious interference which is still subject to the typical proportionality analysis. Therefore, the adoption of either of these two theories has profound consequences. What might constitute the essence of intellectual property rights? When are legislators touching upon it? Is the CJEU really advancing a notion of essence that can prevent legislative changes, or at least make them very difficult? The answer to all these questions depends on our understanding of what constitutes the “essence” of intellectual property rights, and what consequences this notion has under Article 17(2) of the EU Charter of Fundamental Rights.

Intellectual Property Rights and Biodiversity Management: The Case of India

2004 ◽  
Vol 4 (1) ◽  
pp. 97-114 ◽  
Author(s):  
Philippe Cullet ◽  
Jawahar Raja
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Legal Framework ◽  
International Treaties ◽  
Human Right ◽  
Individual Level ◽  
Biological Resources ◽  
The Individual ◽  
Biodiversity Convention

This article analyzes the impacts of the international legal framework for the promotion of intellectual property rights on India's legal regime concerning the control over biological resources and inventions derived from biological resources. It focuses in particular on the newly adopted Biodiversity Act and Plant Variety Act as well as on amendments to the Patents Act and their organic relationship within the overall domestic legal framework. It analyzes these enactments in the context of the move towards the control of biological resources and derived products through property rights fostered by existing international treaties, in particular the TRIPS agreement and the biodiversity convention. This has impacts not only for control over biological resources and derived products but also more generally on the management of agriculture in India and other developing countries and the realization of food security and the human right to food at the individual level.

scholarly journals Transatlantic trade and investment partnership (TTIP) and the spill overs effects on the Gulf – cooperation council

2017 ◽  
Vol 59 (1) ◽  
pp. 35-51
Author(s):  
Nadia Naim
Keyword(s):  
Intellectual Property ◽  
Property Rights ◽  
Intellectual Property Rights ◽  
Trade Agreement ◽  
Global Trade ◽  
Content Type ◽  
Transatlantic Trade ◽  
The Usa ◽  
Trade And Investment ◽  
The Eu

Purpose The purpose of this paper is to examine the transatlantic trade and investment partnership (TTIP). The EU and the USA are negotiating the TTIP, a trade agreement that aims to remove trade barriers across different economic sectors to increase trade between the EU and the USA. The TTIP will have spill over effects on the MENA region, the GCC, Australia and the Asian sub-continent, as it raises key questions for intellectual property and international trade agreements. For instance, will the USA and EU be on an equal footing or will one triumph over the other, will third party countries like the GCC states be expected to adopt new standards. Design/methodology/approach The research design is a paper and online data collection method to find literature to date on intellectual property law development in the GCC states in relation to the three research objectives as set out above. The literature is the population, and this could prove problematic. Different databases have been used to cover all sources where data can be found. Findings As the EU-USA TTIP is aiming to conclude by the end of 2015, the GCC has an opportunity to reassess its relationship with both the EU and GCC. Up until now, the GCC was able to enter into negotiations with the EU and USA relatively independently. However, where the EU and USA can agree, there will be a harmonisation of regulations. This therefore has repercussions for the GCC. The TTIP has three main aims: to increase trade and investment through market access, increase employment and competitiveness and create a harmonised approach to global trade. To harmonise global trade, the EU and USA aim to harmonise their intellectual property rights through an intellectual property rights chapter that deals specifically with enhancing protection and recognition for geographical indications, build on TRIPS and patentability. Research limitations/implications This study is non-empirical. Originality/value The TTIP will have spill over effects for the GCC, as it has yet to finalise the EU-GCC free trade agreement and USA-GCC framework agreement. The power dynamics between the USA and EU will be a deciding factor on the intellectual property chapter in the TTIP in terms of what the provisions for intellectual property will look like and what powers will be available to investors to bring investor-state-dispute settlement claims against foreign countries.

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