Life Data and the Long Arm of the Law

The American Internet services seem to operate successfully also in Europe, despite European companies claiming the market to be very anti-competitive and anti-innovative due to legal complexity.

Personal data and the creations of private persons (life data) have become important assets especially in social media services. Our legal institutions and concepts are still based on the supremacy of national legal systems, but can complex and thorough legislative planning keep pace with changing technology currants?

Nearly two years ago I had an opportunity to join the European Commission’s NEPT program (National Expert in Professional Training). DG INFSO (today DG CONNECT) was my base for a five month period, more specifically, directorate H, “ICT addressing societal challenges”, in the team of advisor Bror Salmelin.

My work concentrated into the activities of Open Innovation Strategy and Policy Group, which operates under DG Connect and is a forum for policy makers and various interest groups from research and ICT-business areas. The group is instrumental to the DG in maintaining solid up-to-date knowledge of open innovation development in various business and societal areas.

Among other tasks, I was commissioned to write an article on an ICT-related legal theme. The idea was to raise new themes or perspectives to supplement the more traditional tones of debate. In several preparatory discussions the above list of themes became my main interest. In short, I became interested in whether there were technology-related trends of which the official legal and administrative systems were not fully aware of. As a sounding-board, I used the other NEPT’s, who in general were somewhat younger than myself, many even representing the so-called “diginatives”, who had only vague or no personal “pre-internet” media experience at all.

Traditional beliefs challenged

I studied copyright and privacy – the latter of which is a more remote area for me, but inseparable in social media issues. Copyright is in a highly interesting position because technology takes quick turns that are very difficult to follow in traditional, slow law-making. The directive 29/2001 regarding copyright in the information society seems interestingly to have rested on perceptions created for the technological innovations of the analogue era, and the outspoken main purpose of the directive indeed was to carry the principles of analogue into the digital environment.

Technology has however taken many new turns since – streaming, search engines, social media – which were not anticipated in the late 1990’s when the intellectual effort was carried out. Even the concept “copy of a work” seems problematic today, because it is clearly anti-intuitive for laymen, i.e. the public. The concept developed for tangible copies is not easily applicable to something intangible that only happens in the microworld of the computer’s electronic memory. This may even have something to do with the difficulties of defining and implementing balanced rules against piracy.

Another thing that may deserve more analysis is the economic nature of copyright. Copyright economy is sometimes referred to as the “superstar-economy”. This refers to the fact that copyright income is very unevenly distributed. There are maybe one hundred – not many more – “superstars” in the world dominating the industry and gaining surreal income, whereas more than 99% of copyright holders only get some supplemental income (which may of course be important for the individual) as a reward of their intellectual efforts, but that’s it.

Copyright economy seems to have more in common with icehockey or football economics than traditional labor markets. Copyright rhetoric however displays copyright as a cultural support system providing all artists their essential income, which is misleading. Copyright economy, based on demand, is hardly a tool for social security.

Third area of interest in copyright field is the understanding of the transaction systems that are vital to copyright –much more so than the usual heated and abstract debates about exclusivity. Especially in Europe the “moral” or “Kantian” tradition of copyright is so strong that economic discussion of copyright sometimes risks being labeled “anti-cultural” or even immoral. A look at the economics of copyright very soon reveals that this should definitely not be the case – without any disregard to morally emphasized copyright philosophy, I would like to make the claim that functioning transaction mechanisms are, in the end of the day, the “beef” of copyright.

Personal data and content – the new assets

I am an absolute dilettante in issues regarding privacy and personal data protection. However, it seems clear that modern service provisioning in the Internet, especially in services we call “social media”, is largely based on the use of person-related information. This refers not only to personal information in the traditional sense – information leading to the identification of a person, or even sensitive personal data that could be misused for discrimination etc. – but messages, texts, pictures, videos that may or may not contain personal information of the said kind. Most of all, it is material created in personal expression and put into public (or limited publicity among “friends”) on purpose.

At least the NEPT group I discussed with seemed very enlightened in terms of online safety. They do not seem to have the naïve perceptions of the elder generation of the nature of digitized information, but are quite cautious in their behavior. They communicate seemingly quite openly but do not trust the systems to be absolutely reliable which is reflected in the content they put into the services – how they say what they say and represent in the net. Facebook is their high-school of diplomacy – and a tool for branding “self”.

It is quite easy to generate commotion in a Brussels seminar by asking a simple question, who owns my person-related data. This is a highly controversial and unclear issue. Human rights instruments seem to address protection, not ownership. Traditionally, this kind of material is hardly copyrightable, especially under traditional notions of  the idea/expression –dilemma or originality threshold. Photos however may enjoy protection. And of course, there is no rule against someone’s social media expressions meriting to copyright protection. How can this be solved efficiently so that service provisioning can be carried out, even globally?

Contractually, Facebook has solved this problem very efficiently and in a very simple way: “You own the material you upload to the service” is the basic rule used in Facebook’s Statement of Rights and Responsibilities. This material, if meriting copyright protection, is then licensed to Facebook non-exclusively and globally. With this (seemingly) very simple contractual structure, Facebook has successfully implemented a global strategy. There is also an additional element to this strategy: the choice of law is California State. The user, by using the service, agrees that his personal data may be used and processed in the US under US legislation. Facebook however expresses an intention to operate in accordance with other laws that may regionally be applicable.

Self-generated and personal information

For the lack of a better word, I called this totality or combination of self-generated information and personal data “life data”. I do believe we are entering (once again)  a new era of IP law, where this type of information is widely and increasingly used as production assets, and where the traditional human rights issues are elevated simultaneously.

It seems that many operators have taken this into account in advance, trying to adjust to the requirements of dignified treatment of customers. This however takes place without detailed legislative backing, and has to be outlined or constructed on a level of international legal principles, which is very challenging considering the varying moral codes in the world. I certainly believe, like many legal professionals (in Finland e.g. Tuomas Mylly and Allan Rosas), that we are also entering an era where the court system gains much more importance as a European law-maker.

Finally, what will be the legislative response to this development? Unlike the ICT-related companies, public officials rarely apply “Moore’s law” in their planning. Moore’s law – not a law in fact, but a claim of consistency in exponential growth of ICT-capacity – allows some possibility for taking a look into the future. If we could imagine a tenfold computational capacity compared to current level, what tasks and businesses would vanish and what new businesses might appear? What happens if and when the capacity is hundredfold, or a thousand times greater? The problem however is, that law-making usually requires time, adjustment, analysis and also recognition of different interests in order to reach balanced solutions. In a world ruled by Moore’s law, this is more often than not impossible.

A leading European politician raised attention recently calling the Internet “Neuland”, i.e. “virgin land”, which is partly true especially in respect of our legal institutions. But on another note, the Internet has been in public and commercial use for two decades already, third running. It looks highly plausible, that people do divide into two categories, those who know little about the Internet, and those, who know little else. This will be a challenge for future policy-making and also a likely source of political disarray.

Mikko Huuskonen
Doctor of Law, Docent
Counsellor, Ministry of Employment and the Economy

This article does not represent the views of the European Commission nor the Ministry of Employment and the Economy.

The links to articles referred above:

Rights or limitations: an Autopsy of Business-Model Based Copyright Regulation: Open Innovation Yearbook 2012, European Commission.

The Gap: ICT-revolution’s Challenges to Legal Institutions. European Commission 2013.