From Visual Arts to Virtual Arts – some insights about Law, Art & Technology

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 by Marcílio Franca, Professor at the Federal University of Paraíba, Brazil

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Leonardo Da Vinci’s life and work show us that innovation and technology have always been close to art and artists. Over the past few decades, however, deep technological innovations are modifying art in strange, new ways. The development and access to new technologies have radically changed not only the ways of producing art but also the ways of consuming, preserving, collecting and restoring art nowadays. Obviously, all this has complex legal repercussions.

Right at the University of Minho, for example, the researcher and multimedia artist João Martinho Moura is a world reference in digital art and computational aesthetics. For the past 15 years, he has been adopting new digital ways to represent audiovisual artifacts, with special interest in the human body. Some of his award-winning works can be seen at  http://jmartinho.net/. Light art, lasers, AI created art, artist robots, e-museums are also good examples the ways in which technology is making its impact in the art world and in the legal systems.

The complexity of authorship and the relevance of the dematerialization of artwork in the field of contemporary visual arts have already secured the birth of at least three Digital Art Biennials. The older is “The Wrong Art Biennale” (https://thewrong.org), a global, digital event aiming to create, promote and push forward-thinking contemporary digital art among artists, curators, collectors and institutions located in virtual pavilions. There is also the International Digital Art Biennial (BIAN), in Montréal, created in 2012. The younger Digital Art Biennial will happen in Brazil for the first time in 2020, but was born ten years ago in Belo Horizonte, as a Digital Art Festival.
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Editorial of October 2019

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 by Tamara Álvarez Robles, Lecturer at the University of Vigo

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On the reform of national law on data protection: the special incorporation of digital rights in Spain

The reform of the Spanish Organic Law on Data Protection (LO 3/2018), to adapt it to the General Regulation of Data Protection has introduced together with the European requirements a catalogue of digital rights. Title X “Guarantee of digital rights” has meant, undoubtedly one of the biggest novelties to data protection regulations. It is composed of a set of Articles, from 79 to 97, which present, for the first time in the Spanish national legislative sphere, the new generation of digital rights[i], inter alia, right to Internet neutrality, right to digital security, right to digital education, protection of minors on the Internet, right to rectification on the Internet, right to privacy and use of digital devices in the workplace, right to digital disconnection in the workplace, right to digital testament.

The inclusion in-extremis of the present Title X, of digital rights, through amendment of the Congress of Deputies dated April 18, 2018, responds to the fundamental importance, to the ever-present and dominating reality of the Internet, which reaches all spheres of our lives. That is why, Organic Law 3/2018 in section IV of the Preamble already points to the involvement of public authorities through the provision of public policies (Article 9.2 SC) in order to make effective the catalogue of digital rights based on the Principle of Equality (Article 14 SC), stating that: “it is the responsibility of the public authorities to promote policies that make effective the rights of citizens on the Internet, promoting the equality of citizens and the groups in which they are integrated in order to possible the full exercise of fundamental rights in the digital reality”.
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Robots and civil liability (ongoing work within the EU)

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 by Susana Navas Navarro, Professor of Civil Law, Autonomous University of Barcelona

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The broad interest shown by the European Union (EU) for the regulation of different aspects of robotics and artificial intelligence is nowadays very well known.[i] One of those aspects concerns the lines of thinking that I am interested in: civil liability for the use and handling of robots. Thus, in the first instance, it should be determined what is understood by “robot” for the communitarian institutions. In order to be considered as “robot”, an entity should meet the following conditions: i) acquisition of autonomy via sensors or exchanging data with the environment (interconnectivity), as well as the processing and analysis of this data; ii) capacity to learn from experience and also through interaction with other robots; iii) a minimal physical medium to distinguish them from a “virtual” robot; iv) adaptation of its behaviour and actions to the environment; v) absence of biological life. This leads to three basic categories of “smart robots”: 1) cyber-physical systems; 2) autonomous systems; 3) smart autonomous robots.[ii] Therefore, strictly speaking, a “robot” is an entity which is corporeal and, as an essential part of it, may or may not incorporate a system of artificial intelligence (embodied AI).

The concept of “robot” falls within the definition of AI, which is specified, on the basis of what scholars of computer science have advised, as: “Artificial intelligence (AI) systems are software (and possibly also hardware) systems designed by humans that, given a complex goal, act in the physical or digital dimension by perceiving their environment through data acquisition, interpreting the collected structured or unstructured data, reasoning on the knowledge, or processing the information, derived from this data and deciding the best action(s) to take to achieve the given goal. AI systems can either use symbolic rules or learn a numeric model, and they can also adapt their behaviour by analysing how the environment is affected by their previous actions. 
As a scientific discipline, AI includes several approaches and techniques, such as machine learning (of which deep learning and reinforcement learning are specific examples), machine reasoning (which includes planning, scheduling, knowledge representation and reasoning, search, and optimization), and robotics (which includes control, perception, sensors and actuators, as well as the integration of all other techniques into cyber-physical systems”.[iii]

Concerning the robot as a corporeal entity, issues related to civil liability are raised from a twofold perspective: firstly, in relation to the owner of a robot in the case of causation of damages to third parties when there is no legal relationship between them; and, secondly, regarding the damages that the robot may be caused to third parties due to its defects. From a legal standpoint, it should be noted that in most cases the “robot” is considered as “movable good” that, furthermore, may be classified as a “product”. We shall focus on each of these perspectives separately.
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Summaries of judgments

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Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgment of the General Court (Ninth Chamber, Extended Composition), T‑307/17 – Adidas Ag / Euipo (Three Parallel Stripes), 19 June 2019

EU trade mark — Invalidity proceedings — EU figurative mark representing three parallel stripes — Absolute grounds for invalidity — No distinctive character acquired through use — Article 7(3) and Article 52(2) of Regulation (EC) No 207/2009 (now Article 7(3) and Article 59(2) of Regulation (EU) 2017/1001) — Form of use unable to be taken into account — Form that differs from the form under which the mark has been registered by significant variations — Inversion of the colour scheme

Link: http://curia.europa.eu/juris/document/document.jsf;jsessionid=7B33A741BDC26F1AC10417E8B24C5012?text=&docid=215208&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3595544

1. Facts

In 2014, the European Union Intellectual Property Office (EUIPO) registered, in favour of adidas, the following EU trade mark for clothing, footwear and headgear:

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In its application for registration, adidas had described the mark as consisting of three parallel equidistant stripes of identical width, applied on the product in any direction.

In 2016, following an application for declaration of invalidity filed by the Belgian undertaking Shoe Branding Europe BVBA, EUIPO annulled the registration of that mark on the ground that it was devoid of any distinctive character, both inherent and acquired through use. According to EUIPO, the mark should not have been registered. In particular, adidas had failed to establish that the mark had acquired distinctive character through use throughout the EU.

2. Decision

The General Court (GC) upholds the annulment decision, dismissing the action brought by adidas against the EUIPO decision.

The GC notes that the mark is not a pattern mark composed of a series of regularly repetitive elements, but an ordinary figurative mark, and that the forms of use which fail to respect the other essential characteristics of the mark, such as its colour scheme (black stripes against white background), cannot be taken into account. Therefore, EUIPO was correct to dismiss numerous pieces of evidence produced by adidas on the ground that they concern other signs, such as, in particular, signs for which the colour scheme had been reversed.
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Editorial of September 2019

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 by Alessandra Silveira, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho

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Google v. CNIL: Is a new landmark judgment for personal data protection on the horizon?

1. In the 2014 landmark Judgment Google Spain (C-131/12), the Court of Justice of the European Union (hereinafter, “ECJ”) was called upon to answer the question of whether data subjects had the right to request that some (or all) search results referring to them are suppressed from a search engine’s results. In its decision, the ECJ clarified that search engines engage in data processing activities and recognised the data subject’s right to have certain results suppressed from the results (even if maintained on the original webpage).

2. This right encountered its legal basis on Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (hereinafter, “Directive 95/46”) jointly with Articles 7 (respect for private and family life) and 8 (protection of personal data) of the Charter of Fundamental Rights of the European Union (hereinafter, “Charter”). In accordance with the Court’s decision, it can be exercised against search engines acting as data controllers (Google, Bing, Ask, amongst others) and does not depend on effective harm having befallen the data subject due to the inclusion of personal data in the search engine’s results. Data subject’s rights should override the economic rights of the data controller and the public’s interest in having access to the abovementioned information unless a pressing public interest in having access to the information is present.

3. Google Spain offered some clarity on a number of extremely relevant aspects such as: i) the [existence of] processing of personal data by search engines; ii) their status as data controllers under EU law; iii) the applicability of the EU’s data protection rules even if the undertaking is not headquartered in the Union; iv) the obligation of a search engine to suppress certain results containing personal data at the request of the data subject; v) the extension, range and (material) limits to the data subjects’ rights. The natural conclusion to arrive is that Google Spain granted European citizens the right to no longer be linked by name to a list of results displayed following a search made on the basis of said name.

4. What the judgment did not clarify, however, is the territorial scope of the right (i.e. where in the world does the connection have to be suppressed?). Is it a global obligation? European-wide? Only within the territory of a specific Member State? In 2018, the European Data Protection Board (hereinafter, “EDPB”) issued Guidelines on the territorial scope of the GDPR, but their focus is Article 3 of the legal instrument and therefore they offer no clarity on this issue (even if they did, they would not bind the ECJ).
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Religious freedom, equal treatment in employment and occupation and case C-193/17 (22 January 2019)

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 by Maria João Lourenço, Assistant lecturer at UMinho

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The phenomenon of globalization, contrary to expectations, has made cultural diversity and pluralism even more evident[i]. Because of multiculturalism, States are confronted with an increasing number of conflicts between minority legal orders and their national law, which is intended for the cultural majority.

In this chronicle, based on a recent decision of the Court of Justice of the European Union, we will reflect on a question which, although not new, continues to deserve particular attention since it violates the most basic principle of equality and, in the context of industrial relations, a clear discrimination on grounds of religion.

The case

A request for a preliminary ruling was made about the interpretation of Article 21 of the Charter of Fundamental Rights of the European Union and Article 11, Article 2(2)(a), Article 2(5) and Article 7(1) of Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation during professional activity.

The reference for a preliminary ruling was made in the context of a dispute between Cresco Investigation GmbH and Markus Achatzi concerning the right of the applicant to receive a supplementary compensation in respect of the remuneration paid due to work on a Good Friday.
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Surrogacy in the light of European Union law: brief considerations

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 by Diana Coutinho, Invited Assistant at the Law School of UMinho

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On 22 August, 2016, Law no. 25/2016 was published, regulating the access to surrogacy and performing the fourth amendment to the Portuguese law on medically assisted procreation (Law no. 32/2006, of 26 July). Before Law no. 25/2016 comes into force, resorting to surrogacy was expressly prohibited (whether for a price or free of charge). With the aforementioned legislative amendment, access to surrogacy became possible, provided that under exceptional circumstances (namely, absence of uterus, injury or disease of this organ that absolutely and definitively prevents the woman’s pregnancy or in clinical situations that justify it), free of charge and resorting to the genetic material from at least one of the beneficiaries. However, the new law was not exempt from criticism, culminating in the judgment of the Portuguese Constitutional Court no. 225/2018 and consequent suspension of access to surrogacy. According to the Portuguese Constitutional Court, surrogacy performed under the terms of Law no. 25/2016 – with an exceptional and gratuitous nature and limited only to the cases authorized by law – does not violate the principle of human dignity (neither of the surrogate mother nor of the child), nor the State’s duty of child protection. However, the excessive indeterminacy of the law (as in the case of paragraphs 4, 10 and 11 of Article 8), the absence of the surrogate’s right to repentance (restricted to the possibility of withdrawal of the consent provided by the surrogate only until the beginning of medical assisted procreation’s therapeutic proceedings) and the failure to implement the surrogacy’s nullity regime (paragraph 12 of Article 8, since the law does not distinguish between the effects of a valid contract and a null contract) substantiate the declaration of unconstitutionality. Amendments to the regulation of the surrogacy are greatly expected, in particular the solution that the legislator will find to protect the interests of the parties involved: surrogate mother, beneficiaries and, in particular, the child.
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Blockchain and art market

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 by Geo Magri, Professor at the University of Torino

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In recent times, blockchain technology has begun to be used to ensure certainty in the circulation of works of art.  Through the blockchain it is possible to record the existence of any author’s rights concerning the work, or the transfer of ownership of an art object, in order to make its circulation safer. These are aspects that, for a global market like this one, are of central importance and that allow us to understand why the first projects were launched to create chains aimed at meeting the specific needs of this sector, overcoming the critical issues that the art market traditionally brings.

Already in the seventies an attempt was made to achieve a result like that which today guarantees the blockchain. At the time it was decided to use the analogic recording of works of art, through the deposit of a picture and the recording of data that allowed the reconstruction of transactions related to the work. The project was proposed by Bolaffi of Turin and was aimed at ensuring the origin and traceability of the works sold. The idea of the analogical register was not successful in the practice of the art market and this was not difficult to predict since it was an excessively large market for an efficient analogical register.
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Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)

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 by Alessandra Silveira, Editor

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On 27 February 2018, the ECJ delivered its judgment in the Associação Sindical dos Juízes Portugueses case (C-64/16).[i] It is a judgment of far-reaching consequences for effective judicial protection and the rule of law within the European Union – and, arguably, for the construction of the legal-constitutional model that supports the European integration. Mainly because the question of judicial independence was assessed without any relevance having been given to the issue of whether or not the austerity measures in question were covered by EU law.[ii] It is worth recalling the circumstances of this case law to understand the following ECJ steps.

At the origin of the request for a preliminary ruling was a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). According to the Supremo Tribunal Administrativo, the measures for the temporary reduction in the amount of public sector remuneration, also applied to the members of the judiciary, were based on mandatory requirements for reducing the Portuguese State’s excessive budget deficit during the year 2011. The referring court therefore considered those measures as measures adopted within the framework of EU law or, at least, as being European in origin, on the ground that those requirements were imposed on the Portuguese Government by EU decisions granting financial assistance.

Besides, the legal action brought before the Supremo Tribunal Administrativo was accompanied with an opinion presented by me and my Colleague Pedro Froufe, two of the editors of this blog. The opinion intended to clarify the extent to which the subject matter fell within the scope of application of EU law, triggering the need to refer to the ECJ for a preliminary ruling.[iii] However, this did not play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. This is the password to understand this new standard and the following ECJ steps on judicial independence, in order to Article 19 TEU gives concrete expression to the value of the rule of law affirmed in Article 2 TEU.
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Editorial of July 2019

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 by Pedro Froufe, Editor
 and Tiago Cabral, Master's student in EU Law at UMinho

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Democracy, negotiation, personal ambitions and backroom deals: the moment of truth for the spitzenkandidaten

1. Last year we had the opportunity to write about the spitzenkandidaten procedure for selecting the President of the European Commission (hereinafter, “EC”) and the power struggle that was brewing between the Institutions with the spitzenkandidaten (lead candidate) at its centre. Knowing what the spitzenkandidaten procedure is and how it works is indispensable for understanding the current essay, thus if the reader is not familiar with it, we would ask you take a few minutes to read our May 2018 editorial before continuing.

2. With the Juncker’s Commission term of office about to reach its end (31 October 2019) and with a new European Parliament (hereinafter, “EP”) with a quite different composition starting its work on 2 July second it is time to select a new President of the EC and, in fact, also the Presidents of the European Parliament and of the European Council (hereinafter “ECON”). Moreover, a new High Representative of the Union for Foreign Affairs and Security Policy and a new President of the European Central Bank will have to be selected shortly. As it is possible to recognize there are a plethora of senior and highly influential positions that will be selected by one or both the EP and the ECON in a very short timeframe. This, of course, will lead to difficult negotiations which creates an obstacle for the spitzenkandidaten procedure because it takes out what is, arguably, the most valuable prize from the table before it can even be in play. As we know the EC has a truly European and supranational character and, for many, due to its powers and competences the EC can be seen as the true “executive” power in the European Union. Furthermore, even if the EP and the Council (of the European Union) are the co-legislators and the ECON defines the broad political priorities, it is the EC who has the prerogative of, in most cases, proposing the laws. The European constitutional design means that the balance in power tilts heavily in favour of the Commission.

3. Obviously, the spitzenkandidaten would not be in danger if there was a clear majority in the EP (either by a coalition or a single party) that could impose its lead candidate to the ECON. As we have stated previously, we are not of the opinion that the candidate of the party that got the most seats automatically gets the right to be President of the EC. That is no more than an oversimplification of the procedure and would be only suited for a system with direct elections (which we actually find the ideal solution). The leading candidate of the party with the largest parliamentary representation will, in most cases, be in the premium position to achieve this objective. After all, there is an unwritten rule or, more accurately, a democratic practice that whoever wins the elections, even absent a majority, should get the position or at least get the first opportunity to try to form the necessary coalition. However, we should not forget that democracy, whether in, is national or supranational is first and foremost the pursuit of consensus. The “burden” to find said consensus and build a coalition in the EP that allows him/her to be selected as President of the EC rests on the candidate. If the candidate that got the most votes, but no majority is unable to do and someone else is, it means that someone else is able to command a broader democratically elected coalition and, therefore, having superior democratic legitimacy should be selected instead.
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