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ReCreating Europe | Newsletter | July 2021

Hello! This ReCreating Europe Newsletter is delivered to you because you’ve signed up for news and updates about the project. 

We're looking forward to sharing the outcomes of our work with you. Hopefully, the time to meet face-to-face will soon be part of our reality again.

Enjoy reading and keeping up-to-date about all things ReCreating! 

Upcoming events
ReCreating Europe is excited to announce the upcoming European Policy for Intellectual Property (EPIP) Conference 2021 taking place from the 8th - 10th of September 2021 in Madrid, Spain. Read more about the EPIP Conference here
Upcoming Presentations
ReCreating Europe's Giulia Priora and Caterina Sganga will present the following paper at the EPIP Conference 2021:

Betwixt EU and national: the present and future of copyright flexibilities (paper submission #156)
 
Abstract
Copyright flexibilities are often considered the quicksand of EU copyright regulation. Much emphasis has been put on the fragmented landscape of exceptions and limitations across the Member States, and uncertainties persist with regards to the protection of end-users’ fundamental rights and freedoms in the digital environment. However, recent legislative and judicial developments at EU level pave the way towards a new regulatory approach towards copyright flexibilities, highlighting the importance of their effective and consistent application throughout the Union, and their key role in in achieving copyright’s objectives of societal and cultural flourishment. The article takes a closer look at this development and investigates whether, along with the interventions by the EU legislator and the CJEU, a common legal understanding of copyright flexibilities is arising from the national copyright legal systems. Focusing on private, educational, and cultural uses, the analysis builds three solid case studies to illustrate strengths and pitfalls of the process of modernization of copyright flexibilities in the EU, thus supporting the assessment on the current and future policy steps towards a balanced, effective, and sustainable EU digital copyright law.

Thomas Margoni and Martin Kretschmer will also present the following paper based on their work in WP3 at the EPIP Conference 2021:

 
A deeper look into the EU Text and Data Mining exceptions: Harmonisation, data ownership, and the future of technology. 

 
Abstract
There is global attention on new data analytic methods. Data scraping (a typical first step for advanced data analytics), text and data mining (TDM, the extraction of knowledge from data) and machine learning (ML, often also simply referred to as Artificial Intelligence or AI) are seen as critical technologies. The legal issues involved in the regulation of data range from privacy and data protection (such as the GDPR) to proprietary approaches (such as copyright, database rights, or proposed new rights in data themselves). This paper focusses on one specific intervention, the introduction of two exceptions for text and data mining in the Directive on Copyright in the Digital Single Market (CDSM). Art. 3 is a mandatory exception for text and data mining (TDM) for the purposes of scientific research; Art. 4 permits text and data mining by anyone but with rightsholders able to “contract-out” (Art. 4), for example preventing TDM use of publicly available online content by “machine-readable means”. We trace the context of using the lever of copyright law to enable emerging technologies and support innovation. Within the EU copyright intervention, elements that may underpin a transparent legal framework for AI are identified, such as the possibility of retention of (permanent) copies for further verification. On the other hand, we identify several pitfalls, including an excessively broad definition of TDM which makes the entire field of data-driven AI development dependent on an exception. We analyse the implications of limiting the scope of the exceptions to the right of reproduction (which leaves the communication of research results in a grey zone). We also argue that the limitation of Art. 3 to certain beneficiaries remains problematic; and that the requirement of lawful access is difficult to operationalize. In conclusion, we argue that there should be no need for a TDM exception for the act of extracting informational value from protected works. The EU’s CDSM provisions paradoxically may favour the development of biased AI systems due to price and accessibility conditions for accessing training data that offer the wrong incentives. We also identify some old and new areas of the EU acquis which will play a crucial role in the future relationship of EU copyright law with technological innovation.

In a joint WP3 and WP6 initiative, Thomas Margoni, João Quintais, and Sebastian Schwemer will organise the following themed session at the EPIP Conference 2021:
 
Algorithmic propagation: do property rights in data increase bias in content moderation?

 
Abstract
The session focuses on the link between training data access regimes and content moderation performed through machine learning algorithms. More specifically, we explore whether and how current EU copyright rules may have the effect of favouring the propagation of bias present in training data into the AI tools employed for content moderation in online creative and cultural contexts. While this dynamic may find application in a wide range of content moderation scenarios, our session specifically examines it in light of  Art. 17 of the Copyright in the Digital Single Market Directive. This provision incentivizes platforms to filter content uploaded by users. At this stage, this is mostly done through matching and fingerprinting technology. This technology, however, is incapable of assessing contextual uses, and therefore not suitable to ensure the required protection of freedom of expression-based exceptions like parody, criticism and review. Accordingly, more sophisticated tools seem necessary to enable preventive measures while respecting user rights. This suggests that ML algorithms will be increasingly employed for copyright content moderation. However, the question is what happens if these tools are based on biased datasets and what effect this may have on users, inter alia with respect to freedom of expression. The session will first identify the role of copyright in training data and the potential of such legislation to play an active role in embedding bias into the algorithmic tools trained on these data. We will then discuss how the so created algorithmic content moderation tools are employed in the online environment. Finally, we will attempt to identify whether and how bias may be further propagated through voluntary and mandatory measures required or incentivised by platform regulation rules, with an emphasis on copyright law and its intersection with other legal regimes. In doing so, we will explore potential approaches to measure this bias at the input and output phases. The objective of the session is to identify the specific conceptual framework for content moderation and bias mitigation measures in copyright law and the formulation of a set of ensuing research questions for future research. Confirmed discussants include Niva Elkin-Koren and Irene Roche-Laguna.

Complete Our Survey - 'Study on Copyright Law and Academic Work'
In the weeks to come, researchers from 6 European countries within our network will receive an invitation to take part in a survey on the topic of ‘Copyright Law and Academics’. The aim is to collect large-scale data on academics’ copyright law knowledge, experience, and perceptions in conducting their work.

By responding to our survey, you will make a very valuable contribution to our empirical work and possibly help us to propose better empirically informed policy recommendations.

This research is part of ReCreating Europe (https://www.recreating.eu/), funded under the European Commission Horizon 2020 Programme, and is being run by the Institute of economics at Scuola Superiore Sant’Anna and led by Arianna Martinelli.
Past ReCreating Europe Events
The implementation of the CDSM Directive: Snapshots into the Future of EU Copyright Law - 21st June 2021
On the 21st of June, ReCreating Europe held the Web Conference on the CDSM Directive. Watch the video recording below and read more about the event in general here.
Workshop: State of Exceptions & Limitations – Copyright Flexibilities in the EU and its Member States - 1st June 2021
We recently held a workshop that took place on the 1st of June 2021 at 10:30 – 13:00 CEST. The workshop title was State of Exceptions & Limitations – Copyright flexibilities in the EU and its Member States. Read more about the event here.
ReCreating Europe Celebrated World IP Day - 26th April 2021
ReCreating Europe celebrated World Intellectual Property (IP) Day. Watch the below video and read the blog post on the topic here. ReCreating Europe's WP 2 and 6 also participated in the 5th Annual Workshop on Intellectual Property Rights (WIPS) - read more about the event here.
Relevant Publications & Events 
Project Deliverables - Now Published
The following project deliverables are now published on Zenodo:
Read More
Our website is regularly updated with news and uploads of publications. You can also have a look at all the people involved in the project here. And remember to subscribe to our social media channels to stay updated with the latest news & events about the project: YouTubeLinkedInTwitterFacebook
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[Header Photo by Umberto on Unsplash]