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Appears in Collections:Law and Philosophy Journal Articles
Peer Review Status: Refereed
Title: Against the Dehumanisation of Decision-Making-Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information
Author(s): Noto La Diega, Guido
Keywords: Algorithmic decision-making
algorithmic bias
right not to be subject to an algorithmic decision
software copyright exceptions
patent infringement defences
freedom of information request
algorithmic transparency
algorithmic accountability
algorithmic governance
Data Protection Act 2018
Issue Date: May-2018
Date Deposited: 23-Jan-2020
Citation: Noto La Diega G (2018) Against the Dehumanisation of Decision-Making-Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information. JIPITEC - Journal of Intellectual Property, Information Technology and E-Commerce Law, 9 (1).
Abstract: This work presents ten arguments against algorithmic decision-making. These re-volve around the concepts of ubiquitous discretionary interpretation, holistic intu-ition, algorithmic bias, the three black boxes, psychology of conformity, power of sanctions, civilising force of hypocrisy, pluralism, empathy, and technocracy. Nowadays algorithms can decide if one can get a loan, is allowed to cross a bor-der, or must go to prison. Artificial intelligence techniques (natural language pro-cessing and machine learning in the first place) enable private and public deci-sion-makers to analyse big data in order to build profiles, which are used to make decisions in an automated way. The lack of transparency of the algorithmic deci-sion-making process does not stem merely from the characteristics of the relevant techniques used, which can make it impossible to access the rationale of the deci-sion. It depends also on the abuse of and overlap between intellectual property rights (the “legal black box”). In the US, nearly half a million patented inventions concern algorithms; more than 67% of the algorithm-related patents were issued over the last ten years and the trend is increasing. To counter the increased mo-nopolisation of algorithms by means of intellectual property rights (with trade se-crets leading the way), this paper presents three legal routes that enable citizens to ‘open’ the algorithms. First, copyright and patent exceptions, as well as trade se-crets are discussed. Second, the EU General Data Protection Regulation is critical-ly assessed. In principle, data controllers are not allowed to use algorithms to take decisions that have legal effects on the data subject’s life or similarly significantly affect them. However, when they are allowed to do so, the data subject still has the right to obtain human intervention, to express their point of view, as well as to contest the decision. Additionally, the data controller shall provide meaningful in-formation about the logic involved in the algorithmic decision. Third, this paper critically analyses the first known case of a court using the access right under the freedom of information regime to grant an injunction to release the source code of the computer program that implements an algorithm. Only an integrated ap-proach – which takes into account intellectual property, data protection, and free-dom of information – may provide the citizen affected by an algorithmic decision of an effective remedy as required by the Charter of Fundamental Rights of the EU and the European Convention on Human Rights.
Rights: Guido Noto La Diega, Against the Dehumanisation of Decision-Making – Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information, 9 (2018) JIPITEC 3 para 1. Any party may pass on this Work by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing License. Passing documents on is, however, subject to certain obligations, particularly concerning citing the names of authors and holders of rights and the bibliographical information used, in order to guarantee a standard form of citation. The licence does not grant a right to use altered versions of the work. The rights to Use in physical form, particularly the rights to distribute the work in printed form or on storage media, are retained by the author or other rights holders and are not covered by this licence. The text of the license may be accessed and retrieved at

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