Table Of ContentRESEARCH HANDBOOK ON INFORMATION LAW AND
GOVERNANCE
RESEARCH HANDBOOKS IN INFORMATION LAW
The volumes in the Research Handbooks in Information Law series examine the legal dimen-
sions of issues arising out of an increasingly digitalized world. Edited by leading scholars in
their respective fields, they explore such topics as data protection, advertising law, cybercrime
and telecommunications, as well as many others. Taking as their common thread, the impact
of information law on the world in which we live, they are unrivaled in their blend of critical,
substantive analysis and synthesis of contemporary research. Each Research Handbook stands
alone as an invaluable source of reference for all scholars interested in information law.
Whether used as an information resource on key topics or as a platform for advanced study,
volumes in this series will become definitive scholarly reference works in the field.
Titles in this series include:
Research Handbook on Electronic Commerce Law
Edited by John A. Rothchild
Research Handbook in Data Science and Law
Edited by Vanessa Mak, Eric Tjong Tjin Tai and Anna Berlee
Research Handbook on Big Data Law
Edited by Roland Vogl
Research Handbook on Information Law and Governance
Edited by Sharon K. Sandeen, Christoph Rademacher and Ansgar Ohly
Research Handbook on Information
Law and Governance
Edited by
Sharon K. Sandeen
Robins Kaplan LLP Distinguished Professor in Intellectual Property Law
and Director of IP Institute, Mitchell Hamline School of Law, Minnesota,
USA
Christoph Rademacher
Professor of Law, Waseda University School of Law, Tokyo, Japan
Ansgar Ohly
Professor of Private Law, Intellectual Property and Competition Law,
Ludwig Maximilian University, Munich, Germany
RESEARCH HANDBOOKS IN INFORMATION LAW
Cheltenham, UK • Northampton, MA, USA
© The Editors and Contributors Severally 2021
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system
or transmitted in any form or by any means, electronic, mechanical or photocopying, recording,
or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2021943500
This book is available electronically in the
Law subject collection
http://dx.doi.org/10.4337/9781788119924
ISBN 978 1 78811 991 7 (cased)
ISBN 978 1 78811 992 4 (eBook)
2
0
Contents
List of contributors vii
Introduction ix
PART I GENERAL PERSPECTIVES
1 Cyberlaw will die and we will kill it 2
Ira Steven Nathenson
2 Confidentiality creep and opportunistic privacy 28
David S. Levine
3 Disclosure 48
Sharon K. Sandeen
PART II EXCLUSIVE RIGHTS IN DATA: THE STATUS QUO AND
THE WAY FORWARD
4 Exclusivity in data: How to best combine the patchwork of applicable
European legal instruments 69
Herbert Zech
5 Data(base) rights? – Misappropriation, property, and tales of trials and
tribulations 77
Guido Westkamp
6 Big data in Japan: Copyright, trade secret and new regime in 2018 108
Tatsuhiro Ueno
7 Liability for the loss of data 121
Anette Gärtner
PART III TRADE SECRECY LAW: EU, US AND GLOBAL PERSPECTIVES
8 The emergence of a global standard for reasonable efforts? 135
Christoph Rademacher
9 Employer’s liability for trade secret infringement 154
Gintarė Surblytė-Namavičienė
10 The limits of trade secret protection in the EU 174
Tanya Aplin
11 Freedom of the media and trade secrets in Europe 195
Ulla-Maija Mylly
v
vi Research handbook on information law and governance
12 The DTSA and trade secret extraterritoriality 217
Elizabeth A. Rowe and Giulia C. Farrior
13 Jurisdiction and choice of law in trade secrets cases: The EU perspective 234
Ansgar Ohly
PART IV DATA PROTECTION, PRIVACY AND CYBERSECURITY
14 Data privacy in Europe and its reception under Japanese law 259
Henrike Weiden and Kensaku Takase
15 The right to explanation, explained 278
Margot E. Kaminski
16 The story of the California Consumer Privacy Act (CCPA), version 1.0 300
Eric Goldman
17 Legislative developments on cybersecurity in the EU in the age of
artificial intelligence 309
Faye Fangfei Wang
Index 332
Contributors
Tanya Aplin: Professor of Intellectual Property Law at the Dickson Poon School of Law,
King’s College London
Giulia C. Farrior: Associate attorney at Lott & Fischer. She earned her Juris Doctor from the
University of Florida Levin College of Law
Anette Gärtner: Dr. jur. (Bonn), LL.M. (Edinburgh), Rechtsanwalt and Solicitor (England/
Wales), Partner at Reed Smith, Frankfurt, Germany
Eric Goldman: Professor of Law at Santa Clara University School of Law. He also co-directs
the High Tech Law Institute and supervises the Privacy Law Certificate
Margot E. Kaminski: Associate Professor of Law at the University of Colorado Law School.
She is the Faculty Director of Privacy at Silicon Flatirons and an Affiliated Fellow of the
Information Society Project at Yale Law School
David S. Levine: Professor of Law at Elon University School of Law and an Affiliate Scholar
at the Stanford Law School Center for Internet and Society
Ulla-Maija Mylly: LL.D., Senior Research Fellow, University of Turku, Faculty of Law
and Senior Project Researcher, Hanken School of Economics
Ira Steven Nathenson: Professor of Law and the Director of the Intellectual Property
Certificate Program at the St. Thomas University School of Law
Ansgar Ohly: LL.M. (Cantab.), Dr. Jur. (Munich), Professor of Private Law, Intellectual
Property and Competition Law, Ludwig Maximilian University Munich, Visiting Professor,
University of Oxford
Christoph Rademacher: LL.M. (Stanford), Dr. jur., Professor of Law, Waseda University
School of Law
Elizabeth A. Rowe: Irving Cypen Professor of Law and the Director of the Program in
Intellectual Property Law at the University of Florida, Levin College of Law
Sharon K. Sandeen: Robins Kaplan Distinguished Professor in IP Law and the Director of the
IP Institute at Mitchell Hamline School of Law
Gintarė Surblytė-Namavičienė: Lecturer Dr. at Vilnius University Faculty of Law. She was
a senior research fellow at the Max Planck Institute for Innovation and Competition in Munich
Kensaku Takase: Partner, Baker & McKenzie, Tokyo Office
Tatsuhiro Ueno: Professor at Waseda University and Deputy Director of the Research Center
for the Legal System of Intellectual Property (RCLIP)
Faye Fangfei Wang: Dr., Senior Lecturer in Law at Brunel Law School (BLS) and convenor
of the Society of Legal Scholars (SLS) Cyberlaw Section in the UK
vii
viii Research handbook on information law and governance
Henrike Weiden: Professor Dr., Munich University of Applied Sciences
Guido Westkamp: Professor of Intellectual Property and Comparative Law at the Queen
Mary University of London School of Law. He is also the academic director for the MSc
in Intellectual Property Management and coordinates the European Intellectual Property
Institutions Network (EIPIN) at CCLS
Herbert Zech: Dr. jur., Dipl.-Biol., Professor of Private Law, Technology Law and IT Law,
Humboldt University of Berlin; Director, Weizenbaum Institute for the Networked Society –
The German Internet Institute
Introduction
The freedom of information is a core value in a democratic society. But information is also
a commodity. Finding the right balance between maintaining fundamental freedoms and
ensuring rights which are necessary to protect privacy or to allocate resources in order to
avoid market failure is a major challenge for policymakers, legislators and courts around the
world. Traditionally, this trade-off has been addressed through a multitude of different areas
of the law, including but not limited to intellectual property (IP) law, trade secrecy law, unfair
competition law and the law of privacy. However, information that is created, collected, or
maintained by businesses is not so easily segregated, given that many more than one area of
law will often be applicable to such information or data.
In a globalized digital world, which is characterized by the convergence of media and by
a rapid development of new business models, it is increasingly difficult to squeeze cases into
the established doctrinal pigeon-holes. A more holistic perspective is called for. Along with
a growing tendency in academic research, we attempt to adopt this perspective, and to look
at “information law and governance” in its entirety. This is by no means a purely theoretical
approach, but also reflects commercial reality: information owners and users that wish to
comply with applicable law and manage their information effectively will have to look at
information governance as a whole rather than at distinct legal fields.
Rather than focusing on one area of information or IP law, the chapters of this book (when
read collectively rather than individually) provide a rich overview of the areas of law and
business practice that are increasingly being labeled “information law and governance.” In so
doing, it provides a basis for considering how the various areas of information laws (including
IP laws) overlap and intersect, both from a policy and practical perspective. The 17 chapters
included in this book are presented in four parts.
Part I provides general perspectives on information law, including critical examinations
of the appropriate scope and purpose of legal protection for information and the benefits of
information diffusion.
Exclusive rights in data, to which the second part of this book is dedicated, are examples of
why a holistic perspective makes sense. On the one hand, data privacy laws govern the use of
personal data. At least in the EU and in Japan, this field of law has its roots in public law. Its
main concern is privacy protection, whereas, arguably, the commercial interest in developing,
refining, and trading data is underestimated. On the other hand, IP and unfair competition law
provide for some legal entitlements in data. Copyright laws around the world may protect
databases, and collections of data may constitute trade secrets. Both regimes focus on the
commercial elements of data governance while largely neglecting the privacy aspect. Some
have recommended the introduction of a novel intellectual property right in encoded data,
whereas others stress the need for access to data and think that allowing property rights is
the wrong approach. The second part of this book analyses rights in data from an information
law perspective. It takes stock of the existing exclusive rights, looks at database protection, at
novel provisions protecting big data in Japanese unfair competition law, and discusses tort law
liability for the loss of data.
ix
