Productive Contestation and ICANN

The fascinating 'Productive Contestation, Civil Society, and Global Governance: Human Rights as a Boundary Object in ICANN' by Niels ten Oever in (2018) Policy and Internet comments 

Human rights have long been discussed in relation to global governance processes, but there has been disagreement about whether (and how) a consideration for human rights should be incorporated into the workings of the Internet Corporation for Assigned Names and Numbers (ICANN), one of the main bodies of Internet governance. Internet governance is generally regarded as a site of innovation in global governance; one in which civil society can, in theory, contribute equally with government and industry. This article uses the lens of boundary object theory to examine how civil society actors succeeded in inscribing human rights as a Core Value in ICANN's bylaws. As a “boundary object” in the negotiations, the concept of human rights provided enough interpretive flexibility to translate to the social realities of the various stakeholder groups, including government and industry. This consensus‐building process was bound by the organizing structure of the boundary object (human rights), and its ability to accommodate the interests of the different parties. The presence of civil society at the negotiating table demanded a shift in strategy from the usual “outsider” tactics of issue framing and agenda setting, to a more complex and iterative process of “productive contestation,” a consensus‐building process fueled by the differences of experience and interests of parties, bound together by the organizing structure of the boundary object. This article describes how this process ultimately resulted in the successful adoption of human rights in ICANN's bylaws. 

ten Oever argues

 The early development of the Internet was characterized by permissionless innovation, informal arrangements, and an unregulated “freedom to create”—but with the rising importance of the network, the need for organization, regulation, and governance increased. Calls of this kind (such as proposals for the regulation of encryption) were met with concern, however, by Internet users, nongovernmental organizations (NGOs), hackers and academics alike, because this meant that the unprecedented freedom of expression, access to information, and enjoyment of other human rights online (thus far taken for granted), might be at stake. 

The governance of the Internet is distributed over different bodies in a mode of participation described as a “multistakeholder model”—meaning that different stakeholders, such as governments, the private sector, technical operators, and civil society, make decisions jointly. Internet governance is thus distributed over a range of bodies in which the configuration and level of formalization of the multistakeholder model varies. The multistakeholder model represents an innovation in governance, because it allows for joint decision making by different stakeholders, and openness of participation by individuals and organizations alike. While multistakeholder governance is by no means a unique feature of the Internet governance field, there is no other area in which this model has been so widely embraced. 

Equal access to negotiation and decision‐making processes by all stakeholders (including by civil society) is formalized in the multistakeholder model, whereas in many other arenas civil society cannot engage on an equal footing. This changes the structure of the conversation and negotiations, meaning that civil society cannot simply rely on well‐proven “outsider” tactics such as framing and agenda‐setting, and is therefore challenged to adopt other approaches. To study these new approaches, this article examines a case in which civil society achieved its objectives and analyzes how this was achieved. Internet governance is not the only example of a global governance process in which civil society has a seat at the negotiating table, but it is arguably one of the most formalized and influential. 

So far, the literature has treated civil society engagement in Internet governance discussions as either monolithic (Lentz, 2011) or divided (Milan, 2014). Civil society managed to inscribe1 human rights in the foundational and regulatory documents of an Internet governance body for the first time in 2016, representing something of a historical achievement. In this article I argue that civil society succeeded in inscribing human rights in the legally binding bylaw of the Internet Corporation for Assigned Names and Numbers (ICANN) because human rights functioned as a boundary object (Star & Griesemer, 1989), that is to say an arrangement which allows people to achieve some form of coordination without necessarily requiring consensus. Because human rights functioned as a boundary object it could be the translated and adapted to the social worlds within and between different stakeholder groups in ICANN. I will show how diverging views between individuals and organizations within civil society actually contributed to a dialectical process and a positive outcome, a process that I call “productive contestation.” 

Internet Governance, Civil Society, and Boundary Object Theory 

Global governance is changing fast (Bevir, 2012; Nye, 2011). Indeed, beside the state, the private sector (Weissbrodt & Kruger, 2003) and civil society (Glasius, 2002; Keck & Sikkink, 1998; Price, 1998; Raymond & Denardis, 2015; Scholte, 2016) are making their way into governance fora and to the negotiation table. However, technological changes are out‐pacing “the ability of institutions of governance to respond, as well as our thinking about governance” (Nye, 2011). Not only is the rate of change increasing, but also the importance of digital technologies in general and the Internet in particular (Benkler, 2006; Castells, 2007). This has led to a situation in which the Internet is itself mediating political and economic conflict (Bradshaw, DeNardis, Hampson, Jardine, & Raymond, 2014; DeNardis & Musiani, 2014). 

Developments in global governance, and advances in the technology, have combined with the increasing importance of the Internet in our lives and societies to drive discussions on Internet governance and regulation (Lessig, 2008; Mueller, 2010; Nye, 2014). By being distributed over different fora and organizations (DeNardis 2014; Mueller, 2010; Musiani, Cogburn, DeNardis, & Levinson, 2015) and being conducted in a multistakeholder manner involving a variety of actors on an “equal footing” (Mueller, Pagé, & Kuerbis, 2004; Raboy & Padovani 2010), Internet governance is set apart from, for example, the governance of international telecommunications, which is governed instead in a multilateral manner (Drake & Wilson 2008; Keohane, 2001) in which only governments have a final say. The processes of Internet governance are generally open for participation by different parties, such governments, the private sector, technical operators, and civil society alike, and decisions are jointly made, based on consensus (Hofmann, 2016). 

The diverse set of stakeholders and Internet governance bodies and fora gives rise to a rich institutional ecology (Abbott, Green, & Keohane 2016; Star & Griesemer, 1989), which is itself the product of relatively recent governance innovation (Van Assche, Beunen, Lata, & Duineveld, 2015). Playing quite a new role in this process is civil society—the combination of individuals, organizations, and movements that belong neither to the state nor to the private sector (UN, 2004). Civil society has played an increasing part in international negotiations in the last few decades (Glasius, 2002; Hajnal, 2002; Van Rooy, 2004), but in the field of Internet governance it was never limited to lobbying, providing expertise, awareness raising, or street action (Glasius, 2002), becoming instead an inherent part of the policy and decision‐making process (Bond, 2006; Frangonikolopoulos, 2012; Milan & Hintz, 2013; Mueller et al., 2004). 

Civil society plays a uniquely important role in the Internet governance ecology because its motivations are different from those of other stakeholders. Its involvement is based on “ethical aspirations to better mankind” (Van Rooy, 2004, p. 8), and to provide alternative channels of communication for voices that are not otherwise heard (Keck & Sikkink, 1998, p. x). In the context of Internet governance, civil society advocates for a wide range of issues. Some of the most recurring important principles and frames include human rights, privacy, security, freedom of expression, connectivity, access, capacity, security, governance, equity, and diversity (DeNardis, 2009; Franklin, 2013; Isin & Ruppert, 2015; Rogers & Eden, 2017). Even though the right to privacy, the right to freedom of expression, and the right to security are human rights, they are not always used or understood within this frame, but rather as individual (and sometimes absolute) rights and freedoms in themselves. Human rights here are understood as “the norms and institutions of international human rights, as protected under customary international law and human rights treaties” (Land, 2009, p. 7). Thus far, the literature has treated civil society engaged in Internet governance either as a rather monolithic group with similar issues, opinions, and concerns (Lentz, 2011), or as fractured and compartmentalized (Milan, 2014). Civil society can instead be considered to consist of players who engage in strategic action, as individuals or as teams, and who pursue multiple goals within different arenas, in a complex system of dynamic interactions (Jasper & Duyvendak, 2015). 

This article examines the complex articulation of alliances and negotiation, both within civil society (among individuals and organizations) as well between civil society and other actors. In order to unpick the complexity of these processes, I propose to look at how human rights functioned as a boundary object during the discussions on adding a commitment to respect human rights to ICANN's bylaws. It will show how the structure of the process, that is, the translation and adaptation of human rights to the social worlds within and between different stakeholder groups, led to this final achievement. 

I use boundary object theory (Burnett & Jaeger, 2008; Gal, Yoo, & Boland, 2005; Star, 1989, 2010; Star & Griesemer, 1989) as a lens to show how human rights were translated into the social worlds of the different stakeholders in ICANN governance without losing its effectiveness. In the scene‐setting article by Star and Griesemer (1989), boundary objects were defined as having three components: (i) interpretive flexibility—they have different meanings and interpretations for various groups; (ii) they have the ability to accommodate different informational and work arrangements—the structure of the object can be used in both individual and group settings and collaborations; and (iii) they exhibit a dynamic between ill‐structured and more tailored uses of the objects—that is, the tension between general abstract use and specific uses in different social worlds facilitates the process of standardization of the object (Star, 2010). Boundary object theory provides us with a tool to analyze negotiations between stakeholders in multistakeholder governance. This theory seems particularly relevant for Internet governance because it aims to study the process that leads up to standardization, “the back‐and‐forth between ill structured and well structured; the architecture of the infrastructures involved” (Star, 2010, p. 614). This captures the dynamics of Internet governance, in which groups with different backgrounds, discourses, and objectives aim to make the Internet “work” for them, and to embed their vision in the Internet infrastructure (Sandvig, 2013). Analyzing human rights as a boundary object in the case of ICANN helps to illuminate the way in which multistakeholder negotiations are structured. Boundary objects are objects that cross the boundaries between multiple social worlds (in this case, the social worlds of stakeholder groups), that are used within them and adapted to many of them simultaneously (Star & Griesemer, 1989, p. 408), and which “‘sit in the middle’ of a group of actors with divergent viewpoints” (Star, 1989, p. 46). They “adapt to local needs” in a social world, yet are “robust enough to maintain a common identity across sites” (Star, 1989, p. 46). Concretely, “boundary objects are a sort of arrangement that allow different groups to work together without consensus” (Star, 2010, p. 602), which is of course a crucial aspect of multistakeholder negotiations and collaboration. This process could be also explained through a Habermasian framework of communicative action (Habermas, 1984; Risse, 2000), in which actors develop a shared rationality based on a process of dialogue. However, the problem with this position from a Science and Technologies Studies perspective is that the process of communicative action needs to assume a shared rationality to be developed against the background of a shared lifeworld. I will show that this idealistic position does not fit with this specific case because of the different interests, interpretations, and embedded knowledge present in the different social worlds of the ICANN stakeholders. Boundary object theory, on the other hand, recognizes that there is room for disagreement and different localized practices, which are accommodated by the boundary object; it conversely represents a more adequate perspective to frame this and, possibly, other analogous processes. 

Civil society brings normative visions to an area that might otherwise be interpreted only through technical or commercial lenses. It brings this normative vision through the use of the power of norms and ideas (Keck & Sikkink, 1998), the ability to influence based on a normative framework. This power of norms and ideas can be leveraged in governance negotiations and discussions (Barnett & Duvall, 2005; Finnemore & Sikkink, 1998; Pavan, 2012) by providing and supporting a specific frame (Benford & Snow, 2000) as part of the process of constructing meaning for participants and opponents (Snow & Benford, 1988). Framing processes can provide powerful categories that can shift debates; a category like “weapons of mass destruction” (Litwak, 2002) can impact negotiations in a way that stabilizes meaning and thus shapes policy (Barnett & Duvall, 2005). Framing has helped civil society to set agendas and influence negotiations by “rendering events or occurrences meaningful and thereby function[ing] to organize experience and guide action” (Benford & Snow, 2000, p. 614). This action repertoire (Tarrow, 1994; Tilly, 1989)—the set of various tools and actions available to a group—has functioned to influence those in power while actors have been absent from the negotiating table. Now that civil society has become a part of the negotiation process—at least as far as Internet governance is concerned—it is faced with coming to terms with this new reality (Carr, 2015) and developing new action repertoires to go along with it. 

Recognizing human rights as a boundary object helps show how civil society leveraged its power of ideas beyond mere framing and agenda setting, managing instead to effectuate an inscription of human rights in ICANN's bylaw and thus progress on the road to make respect for human rights an inherent part of ICANN's processes. Using boundary object theory as an analytical lens increases our understanding of the tactics of civil society and the structure of negotiations in new global governance settings, without reducing the complexity of this player to the fictional ideal of a unified actor. 

The process by which human rights functioned and got shaped as a boundary object I will call productive contestation; this describes the speculative development of the boundary object in and between the social worlds of the different stakeholder groups. This process is a phase that precedes standardization. In this period the understanding and meaning of a concept and its translations both within and across social worlds are developed and new working definitions are tested and contested. Nonproductive contestation occurs when translations of the boundary object occur that are incongruent with other social worlds. 

This article seeks to contribute to the governance studies literature by using concepts from Science and Technology Studies. While it does not expand on the theory of the boundary object per se, I try to show its usefulness in understanding the specific empirical case of multistakeholder Internet governance.

Corporate Persons, Rights and Rivers

'Corporate Human Rights?' by Andreas Kulick in (2021) European Journal of International Law (forthcoming) comments 

Do corporations have human rights? This article addresses a to date rather understudied issue of the corporations and human rights debate: whether and to what extent corporations can be bearers of human rights, with a focus on the ECHR and ECtHR jurisprudence. In a nutshell, it argues that what subsequently will be called ‘the individualistic approach’, i.e. purporting that the corporate form itself cannot be bearer of human rights, counter-intuitively, leads to almost unfettered human rights entitlements of corporations. Thereby, this piece provides a critique of both established corporate law thinking as well as the dominant view in human rights scholarship. Instead, it is submitted that taking the corporate form seriously and granting it some entitlements to some extent under a functionalist theory emerges as the preferable approach – theoretically, doctrinally and practically. The article draws on ECtHR jurisprudence, general legal as well as corporate law theory and on comparative constitutional law in order to corroborate its argument.

Kulick argues 

 To some, they are anathema – to others, such as the European Court of Human Rights (‘ECtHR’), they seem to be self-evident. Flying under the radar until fairly recently, the issue of corporate human rights – i.e. whether, and if so to what extent, corporations can be bearers of human rights – has gained much less scholarly and public attention than its sister issue, corporate human rights obligations. At first glance it may appear almost absurd: mere creatures of the law, not of flesh and blood, claiming human rights protection; ‘artificial’ creatures thus, which above all oftentimes accumulate tremendous power – whereas human rights are intended to protect the weak against the powerful, and not vice versa. This may very well be the reason why some international human rights instruments grant human rights exclusively to individuals, such as Article 1(2) of the American Convention on Human Rights (‘ACHR’), or Article 2(1) of the International Covenant on Civil and Political Rights (‘ICCPR’). However, the European Convention on Human Rights (‘ECHR’) is less clear in this regard. While containing indications, the Convention does not make explicit mention of a general acceptance of human rights of corporations, i.e. separate legal entities. Nonetheless, as stated above, the ECtHR usually does not spend much time on the matter, assuming that corporations enjoy the rights enshrined in the Convention. For those who argue that corporate human rights are nothing short of a perversion, such scant reasoning appears particularly outrageous. 

Regardless, however, whether one embraces or rejects the concept of corporate human rights, the prevalent view in human rights scholarship and practice seems to subscribe to what I will call in the following the ‘individualistic approach’: that the corporate form itself cannot enjoy human rights protections. On this notion, only human beings ultimately deserve the protections of, e.g., the ECHR. Hence, this means that, either corporations cannot have human rights at all (‘no corporate human rights’ position) or corporations may only enjoy human rights to the extent that the human beings behind them are entitled to human rights protections (‘derivative rights’ position). Underlying this individualistic approach is the narrative that granting human rights to the corporate form itself is dubious or even perverse and that focusing on the human beings as (at least eventually) the sole entities capable to possess human rights limits and prevents the expansion of corporate human rights and thus corporate power. 

In this article, I will seek to demonstrate that this individualistic approach leads to the exact opposite, i.e. the unfettered expansion of corporate human rights. In the following, I will offer a theoretical argument why, counter-intuitively, acknowledging corporate human rights – i.e. granting (some) human rights to the corporate form per se – serves to limit them. The focus of this article is on the ECHR. Its considerations are tailored primarily for the specific framework of the Convention and submit a new approach that is intended first and foremost as the adequate solution within such framework. Other human rights instruments and mechanisms may require different nuancing. However, the arguments employed regarding the nature of the corporate form and the functional approach as alternative to the prevalent individualistic approach may potentially prove convincing beyond the realm of the ECHR. 

Part 2 will flesh out the individualistic approach to corporate human rights in more detail and will elaborate on its two variants, the no corporate human rights and the derivative rights positions. In Part 3, the ECtHR’s take on the matter of corporate human rights will be examined. The stock-taking here is a mixed one. It reveals that the Court takes a rather pedestrian approach. The Court assumes that corporations are entitled to ECHR rights. It does so without explaining its underlying theory and without displaying a consistent view on whether it is the corporate form for its own sake or only the human beings behind it that can enable the corporation to enjoy human rights. In Part 4, I will investigate examples of derivative rights approaches in constitutional law jurisprudence, focusing on case law from the U.S. and Germany, that indicate a cautionary tale with respect to the ability of the individualistic approach to limit corporate human rights. In fact, so I submit in Part 5, employing basic insights from legal theory, the individualistic approach is founded on a naturalistic misconception of legal personhood that leads to corporate apotheosis and thus to the opposite of what it intends to achieve. Instead, as Part 6 seeks to explain, a functional approach, taking seriously the corporate form and the social reality that it represents, is indeed the more adequate alternative. It avoids the naturalistic trap and promises to curb much better corporate human rights expansion. Part 7 concludes this article.

River Co-governance and Co-management in Aotearoa New Zealand: Enabling Indigenous Ways of Knowing and Being' by Karen Fisher and Meg Parsons in (2020) 9(3) Transnational Environmental Law comments 

Legislation emerging from Treaty of Waitangi settlements provide Māori, the Indigenous people of Aotearoa New Zealand, with new opportunities to destabilize and decolonize the colonial knowledge, processes and practices that contribute towards negative material and metaphysical impacts on their rohe [traditional lands and waters]. In this article we focus our attention on the Nga Wai o Maniapoto (Waipa River) Act 2012 and the Deed of Settlement signed between the Crown (the New Zealand government) and Ngāti Maniapoto (the tribal group with ancestral authority over the Waipā River) as an example of how the law in Aotearoa New Zealand is increasingly stretched beyond settler-colonial confines to embrace legal and ontological pluralism. We illustrate how this Act serves as the foundation upon which Ngāti Maniapoto are seeking to restore, manage, and enhance the health of their river. Such legislation, we argue, provides a far higher degree of recognition of Māori rights and interests both as an outcome of the settlement process and by strengthening provisions under the Resource Management Act 1991 regarding the role of Māori in resource management. We conclude by suggesting that co-governance and co-management arrangements hold great potential for transforming river management by recognizing and accommodating ontological and epistemological pluralism, which moves Aotearoa New Zealand closer to achieving sustainable and just river futures for all.

'Recognizing the Martuwarra's First Law Right to Life as a Living Ancestral Being' by Anne Poelina, Donna Bagnall and Michelle Lim at 541-568 in the same issue states 

 Traditional custodians of the Martuwarra (Fitzroy River) derive their identity and existence from this globally significant river. The First Laws of the Martuwarra are shared by Martuwarra Nations through a common songline, which sets out community and individual rights and duties. First Law recognizes the River as the Rainbow Serpent: a living ancestral being from source to sea. On 3 November 2016, the Fitzroy River Declaration was concluded between Martuwarra Nations. This marked the first time in Australia when both First Law and the rights of nature were recognized explicitly in a negotiated instrument. This article argues for legal recognition within colonial state laws of the Martuwarra as a living ancestral being by close analogy with the case concerning the Whanganui River. We seek to advance the scope of native title water rights in Australia and contend that implementation of First Law is fundamental for the protection of the right to life of the Martuwarra.

There is a more cautios view in 'Constitutional Law, Ecosystems, and Indigenous Peoples in Colombia: Biocultural Rights and Legal Subjects' by Elizabeth Macpherson, Julia Torres Ventura and Felipe Clavijo Ospina who argue at 521-540 that

 The recognition of rivers and related ecosystems as legal persons or subjects is an emerging mechanism in transnational practice available to governments in seeking more effective and collaborative natural resource management, sometimes at the insistence of indigenous peoples. This approach is developing particularly quickly in Colombia, where legal rights for rivers and ecosystems are grasping onto, and evolving out of, constitutional human rights protections. This enables the development of a new type of constitutionalism of nature. Yet legal rights for rivers may obscure the rights of indigenous peoples and their role in resource ownership and governance. We argue that the Colombian river cases serve as a caution to courts and legislatures elsewhere to be mindful, in devising ecosystem rights, of the complex and interrelated rights, interests and tenures of indigenous peoples and local communities.

They note 

Legal models that recognize or declare rivers and their ecosystems to be legal persons or legal subjects have emerged during this century as a possible tool for settling disputes between local communities and governments over natural resource management, through either legislation or judicial decisions. Such disputes often concern a natural resource that is subject to threat or under pressure and the failure of existing laws and institutions effectively to protect the resource from development. As such, legal person or legal subject models have emerged as new mechanisms to encourage governments to provide more effective and collaborative natural resource management, often involving local communities as ‘guardians’. 

These developments are ad hoc, and in many cases have been driven by indigenous, ethnic or local communities, who have experienced historical injustices in terms of land and resource dispossession. These communities hold distinctive relationships with nature or the environment which may be more reflective of ecocentric philosophical approaches than their western counterparts. In many cases they now have extensive land holdings or recognized rights to participate in or control natural resource management. 

Some might argue that legal person or legal subject models are useful tools available to indigenous peoples in settling claims to natural resources. One example is the Whanganui River in Aotearoa (New Zealand), which was declared to be a ‘legal person’ in 2017 as part of a reparative settlement of the historical river claims of local Māori. Community activism for legal rights for rivers and ecosystems has occurred in countries as diverse as Mexico, the United States (US), and Bangladesh, although not always at the insistence of indigenous peoples. 

One country where the recognition of rights for rivers and related ecosystems is developing particularly quickly is the South American nation of Colombia, where a number of indigenous communities maintain traditional territories and continue to fight for recognition of their rights to control and manage natural resources. In late 2016 the Constitutional Court of Colombia declared the Atrato River, threatened by unlawful mining, deforestation, and contamination, to be an entidad sujeto de derechos (legal subject) with reference to the distinctive biocultural rights of the indigenous and afrodescendent communities who call the river region home. The Court's decision reflects the community perception of the river as a spiritual being or ancestor that provides for life and culture and requires care and guardianship, and not merely as a resource to be exploited. As part of its orders for protection of the river's rights, the Constitutional Court devised an innovative and complex collaborative governance scheme involving a number of government entities, non-governmental organizations (NGOs), and local and indigenous ‘guardians’. The ruling emphasized the need for participation by indigenous and afrodescendent communities in decision making about their traditional river territory, and the key role to be played by indigenous relationships with and knowledge of nature to further its protection. 

Several other courts and local or regional tribunals in Colombia have since handed down decisions that recognize ecosystems to be legal subjects, drawing on protections in Colombia's Constitution within the framework of its Estado Social de Derecho (or social welfare state based on the rule law). The Colombian Amazon, Río Cauca, Páramo de Pisba, Río de la Plata, Río Coello, Río Combeima and Río Cocora (Tolima Rivers), Río Otún, and recently the Río Magdalena (Colombia's most strategically important river), all of which have strong aquatic components, are now legal subjects with their own rights of protection, conservation, restoration, and maintenance. In July 2019, the executive branch of the Department of Nariño proposed an administrative decree to recognize the rights of nature and protection of priority ecosystems such as wetlands, lakes, and rivers. At the end of 2019, a Congressman put forward a broad reform initiative to recognize nature as a legal subject with its own rights within the right to a healthy environment enshrined in Article 79 of the Colombian Constitution. 

The Colombian government recently sought an opinion from the Inter-American Court of Human Rights on the duties of states that are emerging from various international human rights in dealing with the environment. In response to this request, the Court linked the right to a clean and healthy environmentF with growing transnational movements around the rights of nature. In its ruling, and citing the Atrato case, the Court emphasized: This Court considers it important to highlight that the right to a healthy environment as a standalone right, in difference … [from] other human rights, protects all the components of the environment, like forests, rivers, oceans and others, as a legal end in itself, even in the absence of certainty or evidence of risk to individual persons. In this sense, the Court notes a tendency to recognize legal personality and, ultimately, the rights of nature not just in judicial decisions but also in constitutional laws. 

It is now fair to observe that the emerging concept of ecosystem rights is being shaped by Colombia's experience. Since the Atrato decision, around ten legal developments have taken place in Colombia (including court cases, administrative decrees, and legislative reform proposals) in which nature or natural resources such as rivers have been recognized as legal persons or legal subjects. Sometimes these developments refer to the rights or cosmologies of indigenous peoples, including as guardians. At other times they recognize relationships between nature and local communities, small agricultural or peasant communities, citizens, or future generations. This begs the question for indigenous peoples and local communities in other parts of Colombia and beyond whether legal rights for rivers and ecosystems can also help them in demanding better and more collaborative river and ecosystem management within traditional areas. 

Acknowledging the comparative significance of the Colombian cases and the clear cross-fertilization of transnational examples of legal rights for rivers, in this article we examine the legal foundation of the key cases granting legal rights to rivers and ecosystems in Colombia and consider their potential relevance for indigenous peoples. We do this through a detailed analysis of the most recent legal and political decisions to recognize ecosystems as legal subjects in Colombia, many of which are unknown to an English-speaking audience. Our analysis is contextualized through related and regional scholarship. 

Although the cases analyzed in this article can only be understood properly in the particular constitutional and cultural context of Colombia, they all reveal important clues as to possible inroads for better protection of indigenous river and ecosystem rights and interests elsewhere. They show how ecosystem rights are grasping onto, and evolving out of, constitutional protections, departing from western laws for the regulation of the natural world and developing a new type of constitutionalism for nature. 

Yet our analysis of legal and political decisions on ecosystem rights in Colombia reveals that, although progressive legal developments are certainly happening, in some cases the courts ignore or obscure the rights and perspectives of Columbia's indigenous peoples. This suggests that the courts have failed to engage deeply with the complex nature of indigenous interests, tenures, and roles in river governance. For example, the Colombian Supreme Court's decision to recognize the Colombian Amazon as a legal subject, although theoretically groundbreaking in its recognition of the rights of future generations, apparently ignores the rights of indigenous peoples to their traditional territories and their key role in the management and protection of river ecosystems. Various government and non-governmental bodies implementing the Amazon decision have picked up on this oversight and attempted to involve indigenous communities in giving effect to the Court's orders. Yet, as we detail below, the courts in subsequent cases have also failed fully to appreciate the relevance of their judgments for indigenous peoples, or the potential application of the Atrato concept of ‘biocultural rights’. We argue that the Colombian river cases serve as a caution to courts and legislatures elsewhere to be mindful of the rights and interests of local communities and the social, cultural, and environmental complexities of land tenure.

Financialisation

The financialisation of Big Tech: Engineering digital monopolies by Rodrigo Fernandez, Ilke Adriaans, Reijer Hendrikse and Tobias J. Klinge (Centre for Research on Multinational Corporations [SOMO] 2020) comments 

 This report investigates the financial numbers behind the operations of seven leading Big Tech companies, five of which are headquartered in the US, namely Alphabet (Google), Apple, Amazon, Facebook and Microsoft, and two in China, namely Alibaba and Tencent. We selected these companies on the basis of their unequalled size in financial markets. Specifically, at the time of writing, each of the seven firms’ market capitalisation stood above US$500 billion, in some cases surpassing US$1 trillion (= US$1,000 billion), or even approaching US$2 trillion. These sums are not only unmatched against companies from other sectors, such as oil & gas or pharmaceuticals, but they also help distinguish the seven companies – Big Tech’s ‘infrastructural core’ – from smaller tech firms, which typically rely on their infrastructures. 

Furthermore, this report looks at the business models of the world’s most powerful Big Tech firms through the lens of corporate financialisation, examining the ways in which non-financial firms become dominated by the drive to partake in financial narratives, practices and measurements. The report argues in detail that the financialisation of Big Tech is the prime example of a global economic shift in capital accumulation towards monopolisation and rentiership. 

The way platforms monetise their operations is not compatible with the principles that were created to regulate corporate activities in the physical world. For example, Big Tech is at odds with the existing cross-border allocation of tax rights. How to tax Big Tech remains an open question and is subject to fierce diplomatic contestation. The speed at which the sector has developed into a focal point on the stock market, in political communication, in geopolitics and daily life sharply contrasts with the much slower pace at which civil society and decision-making bodies have been able to grasp the transformative nature of these firms. Big Tech’s opacity has so far provided it with an advantage and left regulators to play catch-up.

Learning Platforms and Datafication

'Automation, APIs and the distributed labour of platform pedagogies in Google Classroom' by Carlo Perrotta, Kalervo N. Gulson, Ben Williamson and Kevin Witzenberger in (2020) Critical Studies in Education comments 

Digital platforms have become central to interaction and participation in contemporary societies. New forms of ‘platformized education’ are rapidly proliferating across education systems, bringing logics of datafication, automation, surveillance, and interoperability into digitally mediated pedagogies. This article presents a conceptual framework and an original analysis of Google Classroom as an infrastructure for pedagogy. Its aim is to establish how Google configures new forms of pedagogic participation according to platform logics, concentrating on the cross-platform interoperability made possible by application programming interfaces (APIs). The analysis focuses on three components of the Google Classroom infrastructure and its configuration of pedagogic dynamics: Google as platform proprietor, setting the ‘rules’ of participation; the API which permits third-party integrations and data interoperability, thereby introducing automation and surveillance into pedagogic practices; and the emergence of new ‘divisions of labour’, as the working practices of school system administrators, teachers and guardians are shaped by the integrated infrastructure, while automated AI processes undertake the ‘reverse pedagogy’ of learning insights from the extraction of digital data. The article concludes with critical legal and practical ramifications of platform operators such as Google participating in education.

'The datafication of teaching in Higher Education: critical issues and perspectives' by Ben Williamson, Sian Bayne and Suellen Shay in (2020) 25(4) Teaching in Higher Education 351-365 comments 

Contemporary culture is increasingly defined by data, indicators and metrics. Measures of quantitative assessment, evaluation, performance, and comparison infuse public services, commercial companies, social media, sport, entertainment, and even human bodies as people increasingly quantify themselves with wearable biometric devices. In a ‘society of rankings’, simplified and standardized metrics act as key reference points for making sense of the world (Esposito and Stark 2019, 15). Beyond conventional statistical practices, the availability of ‘big data’ for large-scale analysis, the rise of data science as a discipline and profession, and the development of advanced technologies and practices such as machine learning, neural networks, deep learning and artificial intelligence (AI), have established new modes of quantitative knowledge production and decision-making (Kitchin 2014; Ruppert 2018). 

Although ‘datafication’ – the rendering of social and natural worlds in machine-readable digital format – has most clearly manifested in the commercial domain, such as in online commerce (e.g. Amazon), social media (Facebook, Twitter), and online advertising (Google), it has quickly spread outwards to encompass a much wider range of services and sectors. These include, controversially, the use of facial recognition and predictive analytics in policing, algorithmic forms of welfare allocation, automated medical diagnosis, and – the subject of this special issue – the datafication of education. 

Education is a particularly important site for the study of data and its consequences. The scale and diversity of education systems and practices means that datafication in education takes many forms, and has potential to exert significant effects on the lives of millions. That education is widely understood as a public good, rather than a commercial enterprise (with some exceptions) also means that the extraction of data from students, teachers, schools and universities cannot be straightforwardly analyzed as another instantiation of ‘surveillance capitalism’, that is, the gathering of the ‘raw material’ of human life en masse for analysis, sale and profit (Zuboff 2019). Instead, the datafication of education needs to be understood and analyzed for its distinctive forms, practices and consequences. Enhanced data collection during mass university closures and online teaching as a result of the 2020 COVID-19 crisis makes this all the more urgent. In this brief editorial introduction to the special issue on ‘The datafication of teaching in higher education’, we situate the papers in wider debates and scholarship, and outline some key cross-cutting themes. 

Measurement matters 

There is of course a very long history to practices, processes and technologies of datafication in which current developments in big data, AI and machine learning need to be situated (Beer 2016). The eighteenth and nineteenth centuries witnessed an outpouring of statistical knowledge production, as everything from industrial manufacturing to the natural world, and from the state of the human population to the workings of the human body itself, was subjected to quantification and increasing numerical management (Bowker 2008; Ambrose 2015). The work of modern government itself came to rely on statistics, as people, goods, territories, processes and problems were all made legible as numbers, and statistical knowledge came to ‘describe the reality of the state itself’ (Foucault 2007, 274) as part of the ‘machinery of government’ (Rose 1999, 213). 

The statistical machinery of the nineteenth- and twentieth-century state is now, in the twenty-first century, shadowed by a vast complex of data infrastructures, platforms, devices, and analytics organizations from across the public, charitable and private sectors, as big data has itself become a new source of knowledge, governance and control (Bigo, Isin, and Ruppert 2019). Social media platforms, web interactions, financial transactions, public surveillance networks, online commerce, business software, mobile phone location services, wearable devices, and even connected objects in the Internet of Things have become key sources of knowledge for those authorities with access to the data they produce (Marres 2017). Governments are increasingly turning to digital services in order to generate detailed information about the populations they govern, including controversial attempts to introduce public facial recognition systems for purposes of individual identification (Crawford and Paglen 2019). Through machine learning, neural nets and deep learning, so-called AI products and platforms can now ‘learn from experience’ in order to optimize their own functioning and adapt to their own use (Mackenzie 2018). Nineteenth- and twentieth-century ‘trust in numbers’ has metamorphosed into a ‘dataist’ trust in the ‘magic’ of digital quantification, algorithmic calculation, and machine learning (Elish and boyd 2018). 

Dataism is a style of thinking that is integrally connected to processes of neoliberalization, as competitive logics and the desire to compare the performance of entities against each other, as if they are competing in markets, have been incorporated into various forms and technologies of measurement. Beer (2016, 31) argues that this period of intensive quantification is governed under a particular neoliberal system of ‘metric power’, and that ‘understanding the intensification of measurement, the circulation of those measures and then how those circulations define what is seen to be possible, represents the most pressing challenge facing social theory and social research today’. He suggests a number of key themes for understanding metric power (Beer 2016, 173–77). Data and metrics set limits on what can be known and what can be knowable. They define what is rendered visible or left invisible, thereby impacting on how certain practices, objects, behaviours and so on gain value, while others are not measured or valued. Measurement involves classification, sorting, ordering, and categorizing people and things, which defines how they are known and treated. It leads to prefiguring judgment, by setting desired aims and outcomes with the aim to bring the future into the present, which a measurement is designed to help achieve. Data-based processes also expand into new tasks, functions and programmes, and intensify their influence. The intensification of measurement leads to forms of authorization and endorsement of certain outcomes, people, actions, systems, and practices, thus marking out what is claimed to be truthful. It also involves increasing automation, which shapes human agency and decision-making – automated systems of computation are taken as objective, legitimate, fair, neutral and impartial, and impact on human judgement. Finally, metrics induce affective reactions, such as anxiety or competitive motivation, and thereby promote or produce actions, behaviours, and pre-emptive responses by prompting people to perform in ways that can be valued, compared and judged in measurable terms. 

The power of metrics to affect how social and natural worlds are known and compared, and therefore to shape how they are treated and changed, means that measurement matters. Data and metrics do not just reflect what they are designed to measure, but actively loop back into action that can change the very thing that was measured in the first place. Data practices materialize the competitive neoliberal impulse to ensure efficient market functioning and constant improvement through measurement, the hierarchization of winners and losers, and the attribution of quantitative value. This can be fairly mundane, in the case of an online retailer recommending future goods to purchase based on past purchasing record and comparison against millions of other shoppers, where the measured market is the source of the recommendation. Media streaming services constantly capture data about consumption habits, and feed that back into recommended shows and playlists. The metrics in such cases include favoured genres, time spent listening or watching, artists or shows selected and so on. This may seem fairly banal, but yet is shaping cultural habits and individual tastes. But measurement also matters for even more consequential reasons. It has changed the ways economies function, serving hypercapitalist objectives of making data into a key source of market value (Fourcade and Healy 2017). Surveillance systems such as predictive policing and facial recognition disproportionately focus suspicion on ethnic minority groups, and reinforce longstanding structural inequalities in societies (Crawford and Paglen 2019), as judgments are made based on various forms of comparison and prediction. 

Education has long been subject to historical forms of ‘datafication’ (Lawn 2013), but the quantification, measurement, comparison, and evaluation of the performance of institutions, staff, students, and the sector as a whole is intensifying and expanding rapidly. Higher Education is itself implicated in neoliberalizing forms of metric power, as various technologies of data-based measurement and evaluation impose limits on what is made visible and known, sort people and outcomes into (sometimes hierarchical) categories, establish measurable aims, expand to new tasks, establish what is claimed to be true or valuable, impose automation on decision-making, and affect the ways people feel, act and behave.

In referring to data subjects the authors argue 

 The datafication of human beings affects how they are understood, treated, and acted upon. The concept of the ‘data double’ usefully refers to how digital profiles can be created from the activities of individuals (Raley 2013). These profiles, or shadows, then become the basis for various forms of analysis and calculation, which circle back into individual experiences. To use the social media streaming example, the data double captured inside the database is used to make recommendations, which affects the consumer experience outside the database (Cheney-Lippold 2011). The individual becomes a data subject, defined and characterized algorithmically by being sorted into categories and predicted outcomes. 

The construction of data doubles in education is especially consequential since anything that is modelled inside the database then affects the potentially life-changing experience of teaching and learning. A prediction of future progress based on past outcomes could radically affect the future prospects of the student by foreclosing curriculum opportunities. Forms of algorithmic education, in other words, deeply affect data subjects. In their paper, Harrison et al. (2020) draw attention to how datafication both affects teaching and learning and shapes subjectivities. They refer to a ‘student data subjects’ which are assembled from digital traces of educational activity. Teachers, too, are increasingly known, evaluated and judged through data, and come to know themselves as datafied teacher subjects. 

This datafication of student and teacher subjects prefigures a potentially profound transformation in how students and teachers understand themselves and in how they are understood and managed as learners and professionals. As Marachi and Quill (2020) emphasize in this issue, where ‘frictionless’ data transitions are enabled between primary, secondary and tertiary education and even the employment contexts of individuals, the data subject risks becoming a lifelong ‘shadow’ with potential impact which may be far from benign. Marachi and Quill call for greater awareness, routine interrogation of data-sharing practices and critical distance between higher education institutions and ‘edtech’ platform partners promising ‘enhancement’ through data processing, the constitution of data subjects and the promises of ‘personalization’. Such changes may also demand that educators and students develop critical skills of using and evaluating data.

GMP and Cannabis Manufacturing

The TGA consultation paper Potential reforms to medicinal cannabis manufacturing, labelling and packaging requirements states 

 The Therapeutic Goods Administration (TGA) is seeking feedback on proposed reforms to the regulation of medicinal cannabis manufacturing, labelling and packaging. The reforms are principally intended to enhance the quality and safety of medicinal cannabis products by introducing equivalent GMP requirements for imported and domestic medicinal cannabis, introducing labelling requirements for imported medicinal cannabis, clarifying certain matters in the applicable standard, and requiring child-resistant closures to be used on products. ... 

Over recent years, there has been increasing interest in the use of medicinal cannabis. Governments at Commonwealth, State and Territory levels have implemented legislative and policy changes to allow the cultivation, manufacture and supply of medicinal cannabis for patients in Australia. 

Representation of active ingredients, amendments to labelling requirements and reporting of heavy metal results 

Regulation of medicinal cannabis in Australia 

The Department of Health, through the TGA and the Office of Drug Control (ODC), regulates the manufacture, importation, exportation and supply of medicinal cannabis in Australia. 

The Office of Drug Control (ODC) administers the Narcotic Drugs Act 1967. The Narcotic Drugs Act gives effect to Australia’s international obligations under the Single Convention on Narcotic Drugs (1961), and provides controls to prevent the diversion and illicit use of narcotic drugs. Principally, the Narcotic Drugs Act establishes a licensing and permit system for the cultivation, production and manufacture of cannabis (and cannabis resin) for medicinal purposes. 

The ODC also administers the Customs (Prohibited Imports) Regulations 1956 and the Customs (Prohibited Exports) Regulations 1958 to control the importation or exportation of cannabis or cannabis resin. Under these Regulations, importers and exporters require licences and permits. The TGA administers the Therapeutic Goods Act 1989. The Therapeutic Goods Act establishes a national system of controls for the quality, safety, efficacy and timely availability of therapeutic goods in Australia. The general rule is that therapeutic goods must be included in the Australian Register of Therapeutic Goods (ARTG) or otherwise subject to an exemption, approval or authority before those goods may be lawfully supplied in, imported into, or exported from Australia. 

Therapeutic goods that are not included in the ARTG are known as ‘unapproved products’. Most medicinal cannabis products are unapproved products, which means that they are not included in the ARTG and have therefore not been evaluated by the TGA for quality, safety, or efficacy. The Therapeutic Goods Act provides a number of mechanisms to enable access to unapproved products, such as medicinal cannabis. These products may be accessed through the following pathways:

• Authorised Prescriber Scheme (AP) 

• Special Access Scheme 

• Clinical trials.

In addition to these controls, the regulation of medicinal cannabis under the Therapeutic Goods Act includes the scheduling of cannabis substances, the application of certain quality standards (most notably, TGO93) and the licensing of manufacturers under Part 3-3. Each of these matters is discussed further below. 

The proposed reforms should not be interpreted to imply that there are concerns with the general quality of medicinal cannabis products currently supplied in Australia. The proposed reforms would extend equivalent manufacturing standards for medicinal cannabis products (applied in Australia to licence holders under Part 3-3 of the Therapeutic Goods Act) to imported medicinal cannabis products. 

The objective would be to provide greater assurance for medical practitioners and patients regarding the quality and safety of medicinal cannabis products that are imported and supplied in Australia. The proposed reforms would also seek to provide clarity to the stated content of active ingredients and further clarity on the quality standard and to introduce the requirement for child-resistant closures in the interest of public safety. 

Quality standard measures 

The TGA is responsible for specifying standards for medicinal cannabis products imported, produced and/or utilised in Australia. Standards are made under section 10 of the Therapeutic Goods Act and may be specified by reference to the quality of the therapeutic goods, or the procedures to be carried out in the manufacture of the therapeutic goods, among other matters. Therapeutic Goods Order (TGO) 93 is a standard for medicinal cannabis products that provides appropriate regulatory controls to enable medicinal cannabis products and the ingredients used in the manufacture of those products to meet minimum quality requirements. 

TGO 93 applies to both domestic and overseas manufacturers to enable all medicinal cannabis products imported, manufactured or supplied in Australia meet the quality controls provided by the standard. In practice, TGO 93 ensures consistency and provides assurance to medical practitioners and patients that medicinal cannabis products manufactured in accordance with the standard meet minimum quality requirements. TGO 93 includes requirements in relation to physical and chromatographic identification, assay tolerances, decontamination treatment, and tests for certain impurities. 

There are criminal offences and civil penalties provisions that apply under the Therapeutic Goods Act to persons who import, export or supply therapeutic goods that do not conform to an applicable standard. Unless the Secretary of the Department of Health has given consent in relation to the importation, exportation or supply of particular medicinal cannabis products, those products must conform to the applicable standard. ... 

Manufacture of medicinal cannabis Domestic manufacture of medicinal cannabis 

To manufacture medicinal cannabis in Australia, a manufacturer must obtain:

• licences and associated permits under the Narcotic Drugs Act from ODC 

• a GMP licence under Part 3-3 of the Therapeutic Goods Act 

• relevant state or territory government licences or approvals.

A manufacturing licence under the Narcotic Drugs Act is granted on the condition that the medicinal cannabis is only supplied in particular circumstances (see current sections 11K and 12L of the Narcotic Drugs Act 1967). 

A GMP licence is granted on the condition that the manufacturer conforms to any applicable standard that applies in relation to the goods (to which the licence is issued). It is also granted on the condition that the manufacturer complies with the manufacturing principles determined by the Minister under the Therapeutic Goods Act. The manufacturing principles provide that applicable procedures and requirements in the Pharmaceutical Inspection Co-operation Scheme Guide to Good Manufacturing Practices for Medicinal Products (version 14, 1 July 2018) (PIC/S Guide to GMP) must be observed in the manufacture of certain therapeutic goods. 

There are exemptions from the requirement to hold a GMP licence in some circumstances, including in relation to the manufacture of certain starting materials and in relation to certain specified persons, such as medical practitioners and pharmacists (see Schedules 7 and 8 to the Therapeutic Goods Regulations). 

Inspections 

GMP inspections are performed to ensure the manufacturer is conforming to applicable standards and complying with the relevant manufacturing principles (PIC/S Guide to GMP). ... 

GMP clearance and certification for overseas manufacturers of products on the ARTG 

A GMP licence is only required in relation to the manufacture of therapeutic goods at Australian manufacturing sites. 

A GMP licence is not required in relation to the manufacture of therapeutic goods at manufacturing sites outside Australia. In those situations, the sponsor must obtain a GMP clearance for the overseas manufacturing site before the goods may be included in the ARTG. This can be done through three different pathways: 

• Mutual Recognition Agreement (MRA) desktop assessment 

• Compliance Verification (CV) desktop assessment 

• TGA on-site inspection (GMP certification)

GMP certification is usually requested if it is not possible to obtain GMP clearance via the MRA or CV pathways (for example, due to lack of evidence). GMP certification applications are required to be submitted by the Australian sponsor or an agent acting on the Australian sponsor's behalf. 

Obtaining GMP Clearance is necessary in the context of an application to include medicines in the ARTG that have been manufactured overseas, as the TGA must evaluate whether the manufacturing and quality control procedures used in the manufacture of such goods are acceptable. GMP clearance assesses requested evidence from a recognised regulatory agency as well as procedure and records from the manufacturer. 

However, GMP clearance is not required where medicinal cannabis products are manufactured overseas and supplied as unapproved products via the SAS B, AP or clinical trial pathways. Therefore, while domestic medicinal cannabis products must be manufactured in accordance with licences issued under the Narcotic Drugs Act and the Therapeutic Goods Act, medicinal cannabis products manufactured overseas and supplied as unapproved products are only required to demonstrate conformity with TGO 93. The options outlined below seek to address this uneven treatment of domestically and overseas manufactured medicinal cannabis products. 

Australian manufacturing licences and overseas GMP certification guidance provides more information about the process for applying for a manufacturing licence or GMP certification. 

Current situation with manufacturing quality (GMP) of imported cannabis 

Under the Customs (Prohibited Imports) Regulations, all forms of cannabis, cannabis resins, extracts (including extracts from hemp) and cannabinoids require a licence and permit to import to Australia. Ordinarily, the importer would apply for an import permit with a declaration of reason of import and product use. The application would include evidence provided to ODC in relation the relevant SAS B approval or authorised prescriber authority. Where the sponsor is a manufacturer, evidence of licensing under the Narcotic Drugs Act is also required. 

Importantly, the import permit process does not require verification as to compliance with the manufacturing principles or equivalent GMP in the manufacture of the imported goods.

AI and EU Intellectual Property Policy

The European Commission report Trends and Developments in Artificial Intelligence: Challenges to the IPR Framework by Christian Hartmann, Jacqueline Allan, P. Bernt Hugenholtz, Joao Pedro Quintais and Daniel Gervais states

This Report examines the state of the art of copyright and patent protection in Europe for AI- assisted outputs in general and in three priority domains: science (in particular meteorology), media (journalism), and pharmaceutical research. “AI-assisted outputs” are meant as including productions or applications generated by or with the assistance of AI systems, tools or techniques. 

As the state of the art reviewed demonstrates, the use of AI systems in the realms of culture, innovation and science has grown spectacularly in recent years and will continue to do so. AI systems have become almost ubiquitous in meteorology and in pharmaceutical research and are making deep inroads into media and journalism. Outside these distinct domains, AI systems are being used to generate diverse literary and artistic content, including translations, poems, scripts, novels, photos, paintings, etc. Likewise, a wide variety of innovative and inventive activity relies on AI systems for its development and deployment, from facial recognition to autonomous driving. 

While AI systems have become – and will become – increasingly sophisticated and autonomous, this Report nonetheless assumes that fully autonomous creation or invention by AI does not exist, and will not exist for the foreseeable future. We therefore view AI systems primarily as tools in the hands of human operators. For this reason, we do not enquire whether AI systems should one day be accorded authorship or inventorship status under future IP Law. We also do not examine the IP protection of AI systems per se; legal issues concerning the input of protected subject matter into AI systems (e.g. for text-and-data mining); nor algorithmic moderation or enforcement of IP subject matter, as these topics are beyond the scope of this analysis. Analysis of legal protection regimes beyond copyright and patent law (e.g. trade secrets, unfair competition and contract law) is also outside the terms of reference. An important trend that does emerge from the state of the art review is that more and more AI capability is being offered “as a service” rather than as “bespoke” (tailored) AI systems. Consequently, the emphasis of our analysis is on the users (operators) of AI systems, rather than on their developers. 

This Report provides an assessment of the state of the art of uses of AI in the three priority domains and a legal analysis of how IP laws currently apply to AI-assisted creative and innovative outputs. The Report concludes with recommendations regarding possible revision of IP law at the European level. 

State of the Art in Uses of AI 

There is no universally accepted definition of AI. At a high level, it can be defined as “computer- based systems that are developed to mimic human behaviour” or a “discipline of computer science that is aimed at developing machines and systems that can carry out tasks considered to require human intelligence, with limited or no human intervention.” 

In pharmaceutical research, AI is finding patterns within large data sets and helping to automate the search process. Based mostly on machine learning, AI is assisting in disease diagnoses, predictions of drug efficacy and identification of drug characteristics (e.g. toxicity). Neural networks enable compound discovery, personalised medicine and drug repurposing. AI is being applied in finding molecular drug targets (e.g. proteins, nucleic acids) by searching through libraries of candidates, accelerating the high throughput screening needed to find a candidate substance for further investigation in drug development. It is helping in repurposing of drugs to meet new or different need, in polypharmacology (where a disease is due to multiple malfunctions of the body) and to find and accelerate the development of vaccines (by both gene sequencing and simulations of vaccines). In these processes, some measure of human intervention is usually required, either at the start or throughout the entire process, with human feedback optimising the steps. 

In recent years, there has been increasing cooperation between the pharmaceutical industry and AI companies. Some companies pursue an active IP strategy and file patents in both the domains of pharmaceutical and AI technology while others sell services confidentially to pharmaceutic companies. 

In the area of science, the Report examines meteorology as one of the main application areas where AI is already routinely used. Meteorology predicts the state of the atmosphere, at a certain time in a certain place or over a specific area, based on historical data and knowledge of climate and the atmosphere. Automated tasks include post-processing of weather data; predictive analytics for future forecasts; bias correction of meteorological observations; parameterisation of models to correct for radiation, turbulence, cloud microphysics, etc.; data assimilation; and local downscaling of model outputs to improve predictions. 

Weather forecasts rely on vast quantities of data. The ability of machine learning to extract knowledge from complex and extensive databases makes it particularly suitable for numerical weather forecasting. Some companies support media companies in weather reporting and forecasting, providing high-precision, precise weather forecasts in multiple formats daily, including recordings, to suit the various reporting media. 

In journalism, AI enables automated aggregation, production and distribution of content (data, text, images, audio or video). Assistive technologies support journalists in the creation of media content, including speech recognition, information extraction, clustering, summarising, and machine translation capabilities for multi-lingual access to sources. Generative technologies produce media content with human intervention limited to inputting the data set, defining output specifications, and quality control. Distributing technologies encompass the publication or other forms of communication (e.g. through chat bots) of automatically created content with the help of algorithms.  

Several companies currently offer technologies for automated content creation for uses in diverse areas including describing product, summarising patient notes in hospitals, reporting on sports events, reporting share prices and customising local information on property markets. Other companies have in-house capabilities for automated news generation. Know-how is commonly protected through licensing models, rather than asserting ownership of IP. It also relies on the tacit knowledge within a company, with the knowledge on how to develop customer-specific systems acting as a high barrier to competitors looking to enter the market. 

Legal Analysis under EU Copyright and Patent Laws 

The legal analysis examines whether, and to what extent, AI-assisted outputs are protected by European copyright law, related rights or patent law. For copyright, the analysis is concentrated on the so-called EU copyright acquis and its interpretation by the Court of Justice of the EU (CJEU). The patent analysis concentrates on the European Patent Convention (EPC).

EU Copyright Law 

As our inquiry into EU copyright law reveals, four interrelated criteria are to be met for an AI- assisted output to qualify as a protected “work”: the output is (1) a “production in the literary, scientific or artistic domain”; (2) the product of human intellectual effort; and (3) the result of creative choices that are (4) “expressed” in the output. Whether the first step is established EU law is however uncertain. Since most AI artefacts belong to the “literary, scientific or artistic domain” anyway, and are the result of at least some “human intellectual effort” (however remote), in practice the focus of the copyright analysis is on steps 3 and 4. 

Based on a thorough analysis of the CJEU’s case law, and in light of the findings of two experts workshops, we conclude that the core issue is whether the AI-assisted output is the result of human creative choices that are “expressed” in the output. In line with the CJEU’s reasoning in the Painer case, we distinguish three distinct phases of the creative process in AI-assisted production: “conception” (design and specifications), “execution” (producing draft versions) and “redaction” (editing, finalisation). While AI systems play a dominant role at the execution phase, the role of human authors at the conception stage often remains essential. Moreover, in many instances, human beings will also be in charge of the redaction stage. Depending on the facts of the case, this will allow human beings sufficient creative choice. Assuming these choices are expressed in the final AI-assisted output, the output will then qualify as a copyright- protected work. By contrast, if an AI system is programmed to automatically execute content without the output being conceived or redacted by a person exercising creative choices, there will be no work. 

Due to the “black box” nature of some AI systems, persons in charge of the conception phase will sometimes not be able to precisely predict or explain the outcome of the execution phase. This however need not present an obstacle to the “work” status of the final output, assuming that such output stays within the ambit of the person’s general authorial intent. 

Authorship status will be accorded to the person or persons that have creatively contributed to the output. In most cases, this will be the user of the AI system, not the AI system developer, unless collaboration between the developer and user on a specific AI production indicates co- authorship. If “off-the-shelf” AI systems are used to create content, co-authorship claims by AI developers will also be unlikely for commercial reasons, since AI developers will normally not want to burden customers with downstream copyright claims. 

A problem that might arise is the possibility of falsely claiming authorship in respect of AI productions that do not qualify as “works” for lack of human creativity. Producers or publishers might be tempted to falsely attribute authorship in such productions in order to benefit from the authorship presumptions granted under EU law, which allow the person whose name is mentioned as an author to initiate infringement procedures. 

British and Irish copyright law accord authorship statu s to persons undertaking the arrangements necessary for creating computer-generated works in cases where no (human) author can be identified. These provisions have been criticised as being incompatible with EU copyright standards, since “authorless” works do not meet the EU standard of “the author’s own intellectual creation”. Perhaps, they are therefore better understood as a species of related rights. 

The related rights harmonised under the EU acquis offer various possibilities for protecting AI- assisted outputs that do not qualify for copyright protection. In light of the general absence in related rights’ law of a requirement of human authorship or originality, and its rationale of rewarding economic or entrepreneurial activity, related rights will accommodate AI-assisted output in cases of insufficient human creative input. 

While AI-assisted outputs in the form of aural signals (audio data) may benefit from the phonographic right, audio-visual outputs will qualify for protection under the film producer’s right. Moreover, AI-assisted broadcasts may find protection under the related rights of broadcasters. None of these related rights provide for a threshold requirement, making these regimes available for AI-assisted outputs that are generated without any creative human involvement – even absent significant economic investment. In most cases the user, not the developer, of the AI system will be deemed the owner of the related right, since it is the user that triggers the acts that give rise to these rights through his use of the AI system and output generation. 

Additionally, AI-generated databases will qualify for sui generis protection under the EU Database Directive if the databases are the result of substantive investment. This includes investment in AI technology and know-how applied in producing the database. In light of the broad legal notion of “database”, the sui generis right potentially offers protection to a wide range of AI-assisted productions. However, it is currently uncertain whether investment in machine-generating data – for example, the generation of weather data with the aid of AI – may be factored in. In any case, the prerequisite of a “database” rules out protection of raw data. 

Illustrated via case studies in the Report, it is impossible to make general assessments of the copyright status of AI-assisted outputs in individual cases. In some cases, where the creative role of human beings is evident at various stages of the creative process, such as The Next Rembrandt project, the output will most likely be copyright protected. In other cases, where it is difficult or even impossible to identify creative choices, such as automatically-generated sports reports or AI-assisted weather forecasts, copyright protection will be less likely. Note however that this is the same for sports reports and weather forecasts produced without machine assistance. Nevertheless, producers of “authorless” AI-assisted outputs might still find recourse in related (neighbouring) rights. 

“Authorless” AI-assisted outputs will remain completely unprotected only in cases where no related right or sui generis right is available. Since such rights attach primarily to aural and audio-visual signals, as well as to databases, such cases are most likely to occur if the AI- assisted output is in alphanumerical form. Whether this absence of IP protection might justify regulatory intervention, is primarily an economic question that cannot be addressed in the context of this Report. Such intervention is justified only if no alternative protection (e.g., under trade secret protection, unfair competition or contract law) is available, and solid empirical economic analysis reveals that the absence of protection harms overall economic welfare in the EU. 

Our analysis for EU copyright law and AI leads to the following conclusions and recommendations:  

• Current EU copyright rules are generally sufficiently flexible to deal with the challenges posed by AI-assisted outputs. 

• The absence of (fully) harmonised rules of authorship and copyright ownership has led to divergent solutions in national law of distinct Member States in respect of AI-assisted works, which might justify a harmonisation initiative. 

• Further research into the risks of false authorship attributions by publishers of “work-like” but “authorless” AI productions, seen in the light of the general authorship presumption in art. 5 of the Enforcement Directive, should be considered. 

• Related rights regimes in the EU potentially extend to “authorless” AI productions in a variety of sectors: audio recording, broadcasting, audivisual recording, and news. In addition, the sui generis database right may offer protection to AI-produced databases that are the result of substantial investment. 

• The creation/obtaining distinction in the sui generis right is a cause of legal uncertainty regarding the status of machine-generated data that could justify revision or clarification of the EU Database Directive. 

EU Patent Law 

Our analysis of European patent law – and in particular the EPC – demonstrates that the requirement that an inventor be named on a patent application means that one or several human inventors must be identified. Under the EPC regime, this is essentially a formal requirement. The EPO does not resolve disputes regarding substantive entitlement, which is an issue that is governed by national law. Following this approach, the EPO decided two cases in 2020 (currently under appeal) where it considered that, because AI systems do not have legal personality, they cannot be named inventors on a patent application. 

A human inventor typically has the right to be named on the application. Beyond this, inventorship and co-ownership are mostly a matter for national law. It should be noted, however, that as AI technology stands today, the possibility that an AI system would invent in a way that is not causally related to one or more human inventors (e.g. the programmer, the trainer, the user, or a combination thereof) seems remote. As technology stands, no immediate action appears to be required on the issue of inventorship at EPC level. 

As regards ownership, there are at least three possible (sets of) claimants to an AI-assisted invention: the programmer or developer of the AI system; the owner of the system; and the authorised user of the system (who provided it with training data or otherwise supervised its training). Neither international law nor the EPC provide clear rules on how ownership of patents may be affected by this new type of AI-assisted inventive activity. It is therefore a matter for national laws. However, that might not require harmonisation as there does not seem to be a problem in establishing a sufficient connection between an AI-assisted invention and a patent applicant. 

The granting of a patent requires that, as of the date of filing, the invention must be new (novel) and involve an inventive step. While the increasing use of AI systems for inventive purposes does not require material changes to these core concepts, it may have practical consequences for patent offices. AI systems enable qualitatively or quantitively different novelty (prior art) searches, and the practical application of inventiveness may change as certain claimed inventions may be “obvious” to a person of ordinary skill in the art (“POSITA”) due to the increasing use of AI systems. Any future changes will likely emerge in legal decisions at European (EPO Boards of Appeal) or national levels where patents will either be upheld or not. 

A patent application must also sufficiently disclose the invention. The “black box” nature of some AI systems may present challenges to this requirement. In that regard, it has been suggested that a mechanism to deposit AI algorithms be established, akin to that for microorganisms (the Budapest Treaty). Although it is as yet unclear that a deposit system for AI algorithms would be useful, it seems advisable to at least consider the possibility of requiring applicants to provide this type of information, while maintaining sufficient safeguards to protect all confidential information to the extent it is required under EU or international rules. 

Finally, inventions that might otherwise be patentable might be protectable as trade secrets under the 2016 Trade Secrets Directive, a topic for future study as it is outside the scope of the current work. 

Our analysis for EU patent law and AI leads to the following conclusions and recommendations:

• The EPC is currently suitable to address the challenges posed by AI technologies in the context of AI-assisted inventions or outputs. 

• When assessing novelty, IPOs and the EPO should consider investing in maintaining a level of technical capability that matches the technology available to sophisticated patent applicants. 

• When assessing the inventive step, it may be advisable to update the EPO examination guidelines to adjust the definition of the POSITA and secondary indicia as to track developments in AI-assisted inventions or outputs. 

• When assessing sufficiency of disclosure, it would be useful to study the feasibility and usefulness of a deposit system for AI algorithms and/or training data and models that would require applicants in appropriate cases to provide information that is relevant to meet this legal requirement. 

• For the remaining potential challenges identified in this report arising out of AI-assisted inventions or outputs it may be good policy to wait for cases to emerge to identify actual issues that require a regulatory response, if any. 

• Further study on the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition and contract law, should be encouraged.