eSignature Lawfulness for Sick Leave Policy in European Union

How to eSign a document: eSignature lawfulness for Sick Leave Policy in European Union

[Music] hello data enthusiasts welcome to the open data Cafe the podcast of dat europa.eu the official portal for European data in each episode our fantastic guests will share insights and experiences on open data whether we're talking about how open data can fer transparency in government Kickstart Innovative new businesses enable powerful AIS or empowered citizens like you and me we got it all covered I'm your host JN Franco Chone I've been knee deep in the data sharing scene for quite some time many of which contributing to data europa.eu today I'm the executive director of the data spaces support center yet another initiative dedicated to the implementation of the European data strategy Our Guest for today is Hans attorney at law and partner at timel a law firm that as part of data europa.eu team has been advising the project since it starts with Hans we learn about basic principles that we should all be comfortable with in the digital world uh legal rights licensing and the liability when using data and now let's meet hands good morning an how you doing today good morning I'm doing excellent thank you BU as always that's good where do I find you where are you I I'm in uh Brussels right now actually well near Brussels just outside of Russ Brussels in the office and um of course we know each other it's probably useful to highlight for our audience we've been working together for 5 years uh as part of the team uh that runs and operates for the Publications Office of the European Union data. europa.eu and today I I will take advantage of your kindness to talk about a topic that may look a bit alien to some but actually you know me well I find it very very interesting and intriguing and I don't have a legal background at all uh though I love the philosophy of it and the the thinking that goes go into choosing the right words and the very interesting paradoxes created by mistakes sometimes when when writing a license or a piece of legislation and I love you to uh let's say Enlighten us to to all of this but starting from the basics because our audience should not be frightened so for the ones listening uh at home uh be patient we will keep it simple H and down to the point but before we start uh let's talk about you and and your company uh so we can then go into down to business absolutely so uh my name is Hans Hans SCH I'm uh a lawyer with a law firm called timx established in Brussels uh timx is a law firm that specializes in uh it law uh it policy uh issues um we advise public and private sector clients on basically anything that involves digitization and modernization so a lot of that involves for instance intellectual property rights data protection uh information security artificial intelligence all these uh kinds of uh Hot Topics which makes it very interesting because as you said um a lot of this is about emerging policies emerging choices and trying to find um approaches legislation and interpretations of the law that do good things for society in general so it's a it's a very interesting job and before we go down into regulation I would start from the basics of what uh in the open data world is simply called licensing uh a very misunderstood topic sometimes and also in this relation with with copyright so without talking for the next three hours because I know we the two of us can do that um let's start from the first point uh what is copyright so copyright is basically a legal mechanism a legal Paradigm that was created to protect creative work um the basic concept is that when you do something creative when you do something you make something new um that shows your um personal creativity your your individual personal creative spark that this is a work that belongs to you somehow uh the concept that was created for that was copyright basically saying well you are the copyright owner you are the author of that uh creative work and then for a given uh period of time um people who want to use that work who want to exploit it somehow have to get your permission uh for that it's basically a mechanism that was intended fundamentally to encourage creativity people sometimes get that the main goal of copyright is to encourage creativity the creation of new and original works with the idea that creativity benefits society as a whole the more people create new paintings new songs new movies the better off uh Society is copyright is a mechanism of making sure that people are incentivized to do that because some of the gains some of the benefits of creating that work um will uh end up with be the author the actual Creator that's that's it in the nutshell and it sounds to me like creative work is key there right so and that reminds me of another right that is relevant and interesting on the side of this that is database right that's a bit more trickier to explain perhaps no you tell me you tell me it's it's trickier also because uh copyright is pretty International um originated it's fair to say in the western world but now it's pretty much accepted as a a paradigm internationally as something that is you know it exists in legal systems everywhere uh database rights are something uniquely European um the whole idea is indeed that some works are creative like you know obviously the paintings um songs and things like that so it's clearly they're covered by copyright for databases it's a little bit trickier because some of them do require a lot of uh investment a lot of time and efforts uh to establish them but it's actually kind of hard to qualify them as creative works because for instance they might be just a large data set of objective facts and objective data that for instance describes your environment houses in your neighborhood or the population in a given region or um measurements and scientific research all of that is very important it's valuable a lot of investment was made but actually it's not creative the value doesn't derive from the fact that an author did something that really shows their personal creativity uh but there was just a significant investment made so copyright doesn't work there because you can't say this is really a very original work in the sense that it's indicative of human creativity it's not an expression of your individuality but it is valuable and so in Europe we have something separate uh that exists next to copyright which is the database right which relates to those cases where a set of data has been been created that did require a lot of investment a significant amount of investment in time or in resources and for that reason you get a rese regime that sounds and looks very much like uh copyright but actually is different on on a couple of important details so let's say just my the summary I use in my head is that um copyright creative work as simple as that although there are facets and comp applications Rel it and the other is database right is protecting the the the effort put in collecting data not necessarily in creating or being Innovative but in the massive work I may have put for example to collect all addresses uh in my country or uh all papers published by an author uh that that work in collecting fact is what the database right exactly the lack of the lack of personal creativity B the idea like if somebody else would do exactly the same work with the same remit they would wind up in the same place because there isn't that much margin for your personal individual expression that's inde the main difference perfect so we we building progressively on top of this I like it so um now when someone say an institution in government or even a private individual publishes a data set he or she will probably have a combination of both I'm I'm I'm I'm trying it's actually too much into the detail but it is very important because this is the part where things get difficult and which will lead us naturally to licensing the question is if a government creates a data set uh who is the copyright holder or who owns the database rights intuitively might say in a lot of cases probably there is no copyright because a lot of data there will be factual and that's true for most of the open data sets the information that you have in there is factual it's descriptive it's statistical data neutral information usually it's not protected by copyright there can be exceptions for instance if um a government would publish uh a database of for instance decisions that it's made in particular in particular files something that's really written out um authorizations permits arguably those are protected by copyright but everybody will feel this is kind of a forced way of approaching it if there is copyright it's probably going to be only for a very small subset of data sets um and actually also I think people sometimes overlook this copyright actually doesn't doesn't even make sense in the governmental context because if you remember the point of copyright was to encourage creativity to encourage the making of new works the government doesn't need copyrights as a way to incentivize them to do their work it's just the natural part of government's function so copyright often doesn't apply and even when it doesn't apply just logically it's a bad fit for that situation so copyright is not very reliable then you say well okay and thankfully we have solved this in the European Union because we have database rights clearly often there is a significant investment significant effort from the government in creating databases and but this there's also a challenge there a problem there um because there the question always is the investment that was made the effort that was made was it actually done to create the data or was the actual effort in doing your main job governing making sure that the government is running correctly because again the point of database rights that part was the same as with copyrights database rights exists to encourage people to invest in databases to create data sets that we exploited and we actually have rulings on the European court of justice saying no actually this is indeed the heart of the matter if you're creating a database because you want to exploit it because that's an independent work then database rights apply but if the database actually kind of just originally originates as a side effect of your main job then you're not investing in the database that's not a significant investment even though maybe you actually have to spend a lot of resources a lot of time on setting up systems and paying people's wages to get that data but that was not an fore an investment in the database that's for your job for governing and again also logically the Paradigm doesn't really fit very well because governments don't need an incentive to create databases they have a job to perform their public function and databases just naturally create create originate as a side effect so you wind up with a situation where actually copyrights aren't a very good fit and database rights aren't a very good fit so where does that leave government data that's the magical question I guess for Simplicity we can assume that whoever the data provider is they have rights that ensure some kind of privilege for them and if they want to enable others to reuse their data they need an explicit way to tell them you are allowed I give you permission here thereafter you can use this data for some reason and that's the license right and that is the license that's the heart of it and this is why licenses are a good thing in uh the open data environment and especially when talking about open government data because these questions when is copyright there when does it exist and when does database rights exist and when does should it exist is complicated it doesn't work if you tell people who owns the copyright I don't even know if there is copyright database rights I don't really know that's not conducive to a good environment so in practice even though you can argue about whether this is legally and and policy-wise the optimal situation and practice people just said look we'll make it simple for you here's the license that says what you can do this is a contractual document you do not have to worry about that assessment about whether copyright works or whether database right Works here's just a statement of what you can do and if that statement the license is permissive and flexible enough it doesn't even have to depend on whether there is any copyright or whether there is any datab right just says this is what you can do here's your assurance and now you can move ahead without worrying about whether Cy right or database rights exist or should exist here that's a nice one so um I believe we have a very nice picture of copyright database right licensing now and then I will make you a question where a lot of people fall perhaps because it's not that black or white that is I find a website there's a nice uh table with data published on that website uh I probably can just copy and paste it it is in the public right it is not in the public the fact that something is legally possible and that you can do this does not mean that um you're allowed to do whatever you want it it can be the reality sometimes that people indeed say look this was on a public website and if you didn't want me to use it you should have protected it you know put it behind the login wall whatever uh but that's not how the law works and this is the same thing as uh with um sort of more traditional creative works like musics and music songs videos that you have found online it's not because you found it online that you can do what you want with it you cannot assume that it's there with the permission of the rights holder and you cannot assume even if you know that it's there with the permission of the rights holder that you can now do whatever you want with it that is in the public domain what you should be doing and appreciating that not everybody does this but what you should be doing is to check the conditions under which uh the work was made available to you you look at an open data portal there a lot of work has been done and this people often don't appreciate how much effort this this requires a lot of work has been done to identify specific data sets what the legal terms are what the licenses basically that you're expected to use so say you want cadaster information about you know plots areas of land in in your area you find a nice data set and it'll say for instance this is CC by International this is the basic attribution license which simplifying it a lot basically means do what you want with it but you have to credit The Source in the way that they communicate that is then the terms that you have to ad that you have to respect the fact that you could also just say I'm downloading this and I'm doing whatever I want with it does not mean that it's legal to do so if you would do it anyway you would be violating the licensing uh terms and you could get suited at the very least for breaking that contract maybe also for violations of copyright and database rights but that depends on whether the claimed rights holder can proof that they have copyrights or database rights typically you would want to skip that step and say look I don't care if this is protected by copyrights or database rights I gave you a license that was published was made available under this license and you broke the terms you broke the contract perfect so without being melodramatic about it copying a table of data from a website is like copying a film from a DVD or uh a piece of art but you know um for many or at least it's common uh understanding that scraping data that's the word that is often used is acceptable or called fair use what's that that so fair use again this is um something from uh it's a common law concept uh Continental European law and this actually is a difference so public domain and expression has entered common usage and that does work if you say to European lawyer this work is in the public domain everybody will understand what you mean and it has pretty much the same interpretation across the European Union there are some minor nuances but people will get it fair use it's not the case at all so fair use is a Doctrine uh under uh common law so you know in the UK and in the United States it basically is a generic rule a generic mechanism that says even though I don't have permission from the rights holder I consider my use of this particular work to be fair U because and then you have to explain why the use that you're making of this uh of this particular work uh is in line with what judges have said basically it's more of a common law tradition where you have to look at case law at prior decisions Europe doesn't have that Europe has a mechanism of Legally defined exceptions um for instance where I can say well you can use a work without permission of the right soer if it's for educational uh purposes or um for uh news Gathering and news reporting so there are some exceptions there or for scientific some cases for scientific scientific analysis but those exceptions are explicitly defined in the law you could consider that to be the equivalent of fair use but Europe does not have a generic fair use rule in the same way that the United States does but so there are exceptions to that and you do get um discussions on that as well specifically with screen scraping because a lot of the internet in practice relies on automated screen scraping automated processing it's how search engine works if you Google something what happened is that Google scraped publicly accessible websites um and uh structured the data analyze the data on it in order to create search results and this is something that Google also has to be able to justify in the United States on the basis of fair use Doctrine in Europe they would have to look at applicable uh exceptions under uh under European legislation for the last question I would I would go in a bit more complicated even more complicated layer what we discussed until now so the copyright and the rights on the data the licensing of the data and open data in particular and something that perhaps we don't always think about that is the liability now that uh data is used more and more not just to generate Insight but to actually take decisions say through artificial intelligence or other kind of algorithms and tools uh what happens if I use some open data probably publish in the best best faith in best effort uh and I take a wrong decision because the data was wrong or incomplete or whatever how does liability Works in this world that we've been talking about so um the theoretical model would be like you know the source of their information is wrong and you rely on it you could be held liable for it but you can disclaim part of that liability through licensing and as you've probably guessed license terms always have very extensive liability Clauses even in the simplest licenses that are you know that are eight 10 lines long which for a lawyer that's magic to have a contract that's literally 10 lines long I guarantee you of those 10 lines five of them will be a liability disclaimer that basically says I'm offering this Asis um and you there's also there's been a lot of interesting debates especially in the early days of copyright of of open data on whether this is compatible with European law um especially when your data is made available by consumers can you do that give people data and just basically say I it's whatever happens it's not my problem this is you you have to do your homework there's been a lot of of discussions uh about that or about the responsibility of the state to put data out there and then can a state do that simply say this is data and that might be terrible but you know this this is going to be your risk your use case I don't have anything to do with it can that happen and the Practical result is yes that seems to have been the reality the Practical outcome I think I'm not aware of any cases of any case laws where the court basically said look I know that you government said in your license I'm not responsible but there was damage here anyway so therefore I'm going to hold you liable it will be possible to try that but I haven't seen any cases where that happens um and also I'm kind of happy that I don't know about cases where that has happened because I feel that this is an opinion this is not a fact that this is a reasonable outcome basically the the open data deal is basically saying look you make the data that you have available you're not expected to be infallible you're not expected to undergo to make extreme investments in ensuring superior quality or perfect quality of your data what we're asking you is to share what you have and to make it available for reuse and what the public gets is the ability to use the same kind of data that governments create and that they themselves rely on and they have to make their own assessment on how far they want to go with that how far their Reliance has to go but the deal is you're getting it for free well in the sense that it was already paid by taxpayer money in this context so relatively free you don't have to pay anything additional on top of that but it does mean that as a reuser you have to make your own assessments on how far you can rely on it and what kind of responsibilities you you choose to Bear but you cannot say I took the government data and I was expecting it to be perfect because that was never part of the arrangement if you would want to do that open data wouldn't work anymore then then public administrations would always say I can't share anything with you because my data isn't good enough nobody will ever say will stop publishing they will stop publishing yeah so once again the license is the Savor of the reuser in a way so we we find the license we uh ensure the license is authentic and it comes from the actual issuer and we feel comfortable in a way uh and if we use a license we know that it will contain those uh liability terms which infer that we need to be careful we won't be able to go back to the provider to complain or consider them responsible for whatever we do with their data I believe that picture is is complete now there's one last thing I want to ask you before uh letting you go the um sometimes you know talking about how active the EU is in um supporting its own data strategy and and and creating new regulation around data uh if you are I would I would think that if you're not a practitioner you would feel possibly it's even too much right what is all this data governance act data act open data directive and so on I personally think it is a good thing in a way I mean the analogy I usually make is um a really racing car with your uh your partner telling you oh there's a you driving there's your partner saying oh there's a Bend to the left of this degree and now now you can go fast as fast as this and that uh low is what enables me to go fast in a way because I know exactly how the route looks like and what its risks are and what my boundaries are do you feel like that as well you in your experience what what do you what would you use as an analogy to make people feel more comfortable and thankful in a way that we have legislation helping us so I think in need first of all I think there's no way to deny that legislation regulatory landscape is becoming very complicated data legislation in Europe it's complicated because there's so much happening at the same time so even if you're a practitioner and specialist in this field it's sometimes complicated to keep a full picture does that mean I think legislation is going in the wrong direction no I do think that legislation is going in the wrong direction because you don't even see a lot of discussion about the analysis of the problems that the EU makes on for instance uh allocating benefit it's fairly making sure that you have competition that you get Innovation and that people are protected against abuses that you that naturally originate when a very small group of companies are able to Avail themselves of massive amounts of data so the philosophy is not under dispute the level of detail of the legislation is indeed very um very far-reaching but it is important I think to get to a more competitive and AFF fairer landscape and indeed I think the the the the analogy with cars is correct or the analogy with with airplanes are is correct as well you have very few airplane manufacturers because for many reasons because one of the reasons is that there's a extremely high technological barrier but also there's an extremely high regulatory um and compliance barrier if you make parts for airplanes if you assemble airplanes if you sell airplanes if you use airplanes all of those parts of the chain are very highly regulated and I absolutely appreciate that a lot of companies will look at that and say look I could never start an an an an airplane production company or I'd never even be able to start an airline because it's so heavily regulated and there's such high cost of compliance and the answer is yes but that's good if you don't have that ples fall from the sky bad for the pilots bad for the people on board but also very bad for the people on who the plane is going to land who had nothing to do even with planes it's just all of a sudden falling on their head and the same thing is true for the data economy even if you say look this I I'm just a regular citizen I I'm not in an IT company I'm not even a user of an IT company I'm not not a modern company that wants to use datadriven uh analysis approaches in my business no you can just be a regular citizen but the way data is used and exploited affects you in everyday life even if you don't see it and in the same way that you don't want to be walking across the street mining your own business and having a plane falling on your head and exactly the same way you want the data economy to be appropriately regulated is it going too far I think we'll have to see I think there's now going to be an implementation and um evaluation periods I don't want to call the regulatory standstill but basically the where we learn whether this this is working appropriately I'm sure things some things will not work appropriately they need to be fixed but I'm actually pretty confident that the large lines large principles are okay and that this intervention was necessary to some extent is this is also this is not a European analysis all major economies are struggling with that question do you regulate the data economy do you regulate the data aspect of the data economy and how far could you go are we early as a European Union maybe but you can also splend that positively and say this is basically gdpr all over again when the EU was also I know you're too early and this is too burdensome and this is over regulating but a lot of what the gdpr did not all of it I do have some questioning criticism a lot of it worked very well and a lot of member states will actually say well the EU with the gdpr said gold standard not because it's perfect gdpr is a flawed instrument in many ways but the net effect is quite positive even to the point that a lot of non-european jurisdictions say we should have something like this maybe improve it slightly but like this and I can see the same thing happening with data legislation as well so thank you Europe for legislation and thank you H for being with us today uh good luck with the future work and uh and uh yeah catch you up uh soon again absolutely looking forward to it thank you very much