Summary
JADS Master - Intellectual Property And Privacy Summary
- Course
- Institution
Summary for the Intellectual Property And Privacy course of the Master Data Science and Entrepreneurship.
[Show more]
Seller
Follow
tomdewildt
Reviews received
Content preview
1. General: LawLaw
Body of rules which a particular state or community recognizes as binding on its members or
subjects.
H.L.A. (Herbert) Hart’s Legal Positivism
Law is an elaborate set of rules supported by society:
● When there is no rule → the judge decides what is best.
● Law has everything in it to provide answers to legal problems.
▶ Law and morality are separate things.
▶ 2 Types of rules:
● Primary rules: prescriptions of prohibitions.
● Secondary rules: determine if/when the primary rules are valid.
Ronald Dworkin’s opposition To Legal Positivism
● Law not only black letter rules.
● Also moral legal standards (rights, principles, etc.).
● Relied on when there are no rules.
● Standards are often unwritten.
▶ Law has internal morality/cannot be separated from morality
Hildebrandt Agreeing With Wessel
Law should be defined through what it does (a pragmatic approach to understanding law).
3 Functions of Law
Law is multisided not one but all of those things:
1. Provide legal certainty.
2. Provide legal justice.
3. Provide instrumentality to solving societal problems.
How Legal Rules Are Different From Other Rules
● Not regularities of behaviour (as a rule, I drink coffee with breakfast).
● Legal rules are prescriptive (tell what (not) to do).
● Are binding (not discretionary, but mandatory to follow).
● Backed by state authority to enforce (if does not … court takes … to pay).
Legal Effect
Rules have an actual clear effect in the world (i.e. conviction and prison sentence for
murder). Few types:
● Something is valid/invalid (i.e. argument of legalized data transfer between US and
EU deemed invalid due to inadequate protection).
● Attributions of rights or obligations (i.e. if data is processed, I have the right to be
informed).
1
,Legal Rules Structure
If [ X ] then [ Y ]:
● X: conditions/stipulations foreseen by law (i.e. if one is parent to a child …, if data is
processed …).
● Y: legal effect/conclusion (i.e. one is under obligation to support the child …, then EU
general data protection regulation applies …).
Legal Reasoning Steps
1. Establish relevant facts:
a. What happened/is about to happen?
2. Identify relevant legal norms:
a. Legal norms can be multilevel or include sub-norms (i.e. applies in EU
territory or to targeted EU customers).
3. Interpret fact in light of norms:
a. Is data personal or information?
4. Interpret norms in light of facts:
a. If data is personal, what does the law say?
5. Conclusion/solution should follow:
a. (i.e. personal data is processed → thus GDPR applies).
▶ Alternative conclusions are possible (rules & facts can be interpreted differently).
▶ If conclusion justified by 4 steps → separates rule of law from arbitrariness.
Sources of Law
Provides legal norms with authority based on their origin and makes legal norms binding in
effect.
Legal Certainty
● Certainty of rights & obligations:
○ Can I use this → what obligations and rights do I have to respect if I do?
○ Is it legally viable (a solution)?
○ Will my ideas be protected?
● Foreseeability of consequences of one’s actions:
○ Anticipate legal viability.
○ Assess risks.
○ Protect the investment of time, money, and effort.
Justice
● As equality: equal cases should be treated equally, and unequal cases should be
treated differently.
● As fairness:
○ Distributive justice: everyone should be treated equally under equal
conditions.
○ Corrective justice: punishment proportionate to the crime, composition
proportionate to damage.
2
, Instrumentality
Law is an instrument to achieve societal goals:
● Setting goals.
● Crafting mechanism to achieve them.
Double Purpose GDPR
1. Recognize the economic benefits of data processing.
2. But also risk and hence protection.
▶ Any right, value, interest can be endangered by processing, any damage can be inflicted.
▶ Data is just a tool.
Power Relationship Models
● Model 1: Big Brother:
○ Self-censorship (effect of surveillance).
○ Fear to speak/act freely when no anonymity.
○ Role of privacy in civil society democracy.
○ Concerns both state and private surveillance.
● Model 2: Kafka’s The Trial:
○ Unaware of file existence.
○ Unaware of charges, process, and judges.
○ Unable to defend himself.
○ Concerns: unfair, non-transparent, decision-making, invisible judgment (i.e.
due process, decisional fairness).
● Model 3: Surveillance Capitalism:
○ Keywords: exploitation & manipulation (i.e. behavioral design).
○ Modern economy and governance feed on (personal) data.
○ An individual is a means to achieve (economical, political, etc.) goals.
▶ Data protection law is there to prevent and mitigate those wrongs.
2. IP: Innovation & Data
Innovation
Doing more, with less:
● Higher output from lower input.
● Data is an enabler of innovation.
Problem with Data
Usually opened by a company, locked down from redistribution by agreements or terms of
service.
Using Data & Getting Access
● What you can/cannot do:
○ IP rights to data: might grant exclusivity to their owner.
○ Contracts: even if the data is IP-free, contracts can restrict.
○ Tinkerproof devices: sensors on tractors (i.e. John Deere).
3
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller tomdewildt. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $5.89. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
67474 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy study notes for 14 years now