Global Pandemic, Technology and Business

Comparative Explorations of COVID-19 and the Law

Luo Li, Carlos Espaliu Berdud, Steve Foster, Ben Stanford, Luo Li, Carlos Espaliu Berdud, Steve Foster, Ben Stanford

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000514995
• Edition: 1
• Topic: Business
• Subtopic: Business Law
• Index: Business

This book presents an exploration of a wide range of issues in law, regulation and legal rights in the sectors of information protection, the creative economy and business activities following COVID-19.

The debilitative effect of the global pandemic on information protection and creative and business activities is powerful, widespread and deeply influential, bringing a range of uncertainties to these sectors. The effects of the crisis challenge the fundamentals of the legal systems of most countries in their attempt to govern them. Written by international academics from a diversified background of law disciplines and legal systems, this book offers a global vision in exploring the wide range of legal issues caused by the COVID-19 crisis in these fields. The book is organised into three clear thematic parts: Part I looks at information protection and intellectual property rights and strategies; Part II examines contracts, cooperation and mediation in the post-COVID-19 market arena; and Part III discusses issues pertaining to corporate governance and employment rights.

The book explores the unprecedented challenges posed by the pandemic crisis from a global perspective. It will provide invaluable information and guidance in this area to those in the fields of law, politics and economics whose interests are related to information, business and the creative industry, as well as providing indispensable reading to business practitioners and public servants.

Part I

Information protection and intellectual property rights and strategies

2 Mapping the legal landscape of information law in times of crisis

Olga Kokoulina, Anja Møller Pedersen and Jens Schovsbo

DOI: 10.4324/9781003176848-4

Introduction

The ongoing pandemic has touched nearly every corner of the world, bringing communities to a state of a prolonged health and humanitarian crisis. While reshaping the daily routines of individuals, the crisis has also provided challenges for national governments. Struggling to offer a rapid and effective response, they resorted to a range of long-established policy tools and mechanisms in a bid to stop the spread of the disease. As the number of cases ebbs and flows throughout the course of the pandemic, the expectations that data-driven and technology-aided solutions can, and should, be available to overcome the crisis have stood uniformly high. In stark contrast with fighting the plague in the Middle Ages, there is no principal shortage of statistical knowledge, data processing capacity or predictive modelling potential. Consequently, respective public health decisions – such as home confinements, border closures, curfews and the like – need not be universally contingent on the exertion of the “disciplinary power of the state”. Instead, humanity should have been benefitting from data-powered decision-making, democratisation of technology, advancement of “open science” and collaborative innovative practices. Combined, these measures and initiatives should have ensured that we fared through the pandemic and managed health crises, if not better, then at least differently.¹ Despite the unprecedented theoretical potential, however, the promises of a data-powered crisis governance have yet to be delivered. While the communities throughout the globe are still at a crossroads with the pandemic, there is no better time to take stock of what the legal landscape of information law looks like. In finding out the lie of the land in this area, the present contribution pursues two goals. It first seeks to unpack the complexity of overlapping data landscape structures that moderate the flow of data in times of crisis. It then identifies some normative connections and “flexibility conduits” that could be used to bridge the gap between the expectations of data-driven crisis management and the reality of going forward.

Cf. Foucauldian plague governance model in Michel Foucault, Discipline and Punish: The Birth of the Prison (Paris, Gallimard 1975) vis-à-vis his later developed “smallpox” governance model in Michel Foucault, Security, Territory, Population: Lectures at the Collège de France (London, Palgrave Macmillan 2009).

We start by briefly introducing information law as a primary field of enquiry. Focusing on attributes of “information” and “crisis”, in Section 2 we explore the potential data needs that the state of health pandemic poses. We then, in Section 3, describe the patterns and configurations of the legal landscape through the categories of distinct legal regimes such as data protection law, copyright, database and patent law. In presenting this catalogue of rights, we focus, first and foremost, on their afforded scope of protection and embedded legal “flex” mechanisms that could be utilised to bolster and improve the data-powered crisis management. Lastly, we discuss the identified communalities and differences across the surveyed protection models and offer some concluding remarks.

Information law

The ongoing crisis placed a spotlight on the intricate landscape of overlapping, curbing patterns of legal protection regimes modulating the access and use of information. As an object of regulation, “information” itself is notoriously difficult to define. It has myriad meanings in various disciplines and contexts, so that its conceptual contours often appear fluid and unstable.² In statutory provisions, for example, its basic properties such as “data” and “information” are routinely referred to, albeit rarely comprehensively – if at all – defined.³ The respective choice of certainty has evident advantages and costs. Thus, on the one hand, the lack of analytical clarity and precision necessarily obscures the boundaries of protected subject matter.⁴ Admittedly, a more calibrated and comprehensive articulation of the terms in legislation would have reinforced its instructive authority and contributed to legal certainty.⁵ On the other hand, a legislative preference for not providing exhaustive definitions and interpretations of existing legal categories is also a manifestation of pragmatic flexibility. In other words, it is not necessarily an indication of regulatory deficiency, and can also be approached as an intended legislative choice for introducing an optimal and “futureproof” solution.⁶

See, e.g. Mark Burgin, Theory of Information. Fundamentality, Diversity and Unification (Los Angeles, World Scientific Publishing 2010); Luciano Floridi, ‘Philosophical Conceptions of Information’ in Giovanni Sommaruga (ed), Formal Theories of Information: From Shannon to Semantic Information Theory and General Concepts of Information (Cham, Switzerland, Springer 2009); Max Boisot and Canals Agustí, ‘Data, Information and Knowledge: Have We Got It Right?’ (2004) 14(1) Journal of Evolutionary Economics 43.

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L 119 (General Data Protection Regulation – GDPR) and see also Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases, [1996] OJ L 77 (Database Directive – DBdir).

Lee A Bygrave, ‘Information Concepts in Law: Generic Dreams and Definitional Daylight’ (2015)35(1) Oxford Journal of Legal Studies 91.

Nadezhda Purtova, ‘The Law of Everything: Broad Concept of Personal Data and Future of EU Data Protection Law’ (2018)10(1) Law, Innovation and Technology 40.

Commission’s commentary with respect to its amended proposal for a data protection Directive of 15 October 1992: COM (92) 422 final – SYN 287, 9.

Thus, the “information law” space is surrounded by flexible and reconfigurable walls. Their adjustable design stems from the interplay of factors related, but not limited, to the philosophical underpinnings,⁷ the political dynamics in existence⁸ and economic qualities of information as such.⁹ Further, within these regulatory walls, one is met with a complex topography of distinct legal protection regimes. Their boundaries and positioning are by no means fixed, owing to the ongoing discussion and negotiation on how to strike a balance between the interests of distinct stakeholders involved in the dilemma. The time of the crisis brings its own dynamics to this tussle by questioning, revisiting and ultimately reconfiguring the contours of protection models. Above all, the crisis is an opposite of normalcy. It further requires immediate actions to be taken due to its potential to be a serious and direct danger to the health of the human population.¹⁰ Naturally, this perspective brings to the fore the “population” as a focal point of actions and concerns. This focus is grounded on recognition that “population strategy” helps to address the underlying causes in a mobilised and more efficient way. It proposes a convenient vantage point to explore the synergy potential to enable tackling the crisis at the broadest community level.

On distinction between “data” and “information in the context of Artificial Intelligence (“AI”) in Mireille Hildebrandt, ‘Law As Computation in the Era of Artificial Legal Intelligence: Speaking Law to The Power of Statistics’ (2018)68(supplement 1) University of Toronto Law Journal 12.

On political and legal preferences related to statutory vis-à-vis judiciary-driven interpretation, see Lyria Bennett Moses, ‘Adapting the Law to Technological Change: A Comparison of Common Law and Legislation’ (2003)26 U New South Wales LJ 394, 400.

On economic dimension of information and its ubiquitous and non-rivalry qualities Carl Shapiro and Hal R Varian, Information Rules: A Strategic Guide to the Network Economy (Boston, Harvard Business Press 1998) 6.

A definition of “public health emergency of internati...