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The development of  law in the digital economy

Priority areas of development: law
2018

Goal of research: To determine the trends of the legal development in period of the digital economy formation.

Methodology

The research is based on complex analysis as several methods were used. Traditional method of formal logic was applied for analysis of legal acts.  A degree of correlation between these acts and real social relations was analyzed with implementing of the sociological method. The latter also was useful for discovering gaps within the law.

Clearing general and distinct features of the legal development was realized on basis of comparative method. The system method that provides all-embracing  approach to the exploration of development of law in the conditions of the digital economy was also used.

Empirical base of research

The official publications of normative legal acts of the Russian Federation; materials from the systems Garant and Consultant Plus; sites contain foreign legislative acts and judicial practice; library funds.

Results of research

On the base of scholar analysis of wide circle of sources were made the fundamental evaluations/conclusions concerning trends in the development of institutions of public and private law in the digital era.

Applying information telecommunication technologies to sphere of state management within limits of digital economy will permit to make a transfer to distance interaction with state bodies, automatize administrative procedures.

Management of the digital economy development demands to adapt normative legal base to new sorts of relations, new objects and subjects of digital economy, including use of advantages of new technologies.

As for subjects participating in relations connected with digital economy, it is possible to claim for sure that set of existing administrative barriers is applicable  to them too.

The issue of these barriers and of its cancellation concerning new goods and services based on IT, is more complicated. As for goods with new qualities (for example, “clever” things), perhaps new guidelines will be established for its market distribution.  Until now, as was clear in matters connected of Internet-things, there are problems of adequate legal regulation of theirs using.

Implementing blockchain-technology is connecting with legal barriers are stipulated by legislation regulating: cryptography; personal data; e-documentation and digital signature; judicial procedure. However, the main barrier appears to be the absence of mechanism letting to impose amendments into blockchain by decisions of state bodies. Because of it, the content of blockchain remains outside of legal field. In the same time, realization of this mechanism will demand modifications in the same blockchain architecture. They will decrease its attractiveness in comparison with existing technologies of centralized data registers.

There is proposing in the work a definition of «raw» data. The term may be applied to data, reflecting reality and not processed in the manner that produce separate fruits of intellectual  activity.

Present-day legislation contains some blanks and is not able to respond all demands of modern information society. Despite of great number of means in law of intellectual property, still it is impossible to provide sharing and protection of data (first of all «raw» ones). Accordingly, it is necessary to recognize low efficiency of using means of classical copyright, oriented at static or slowly changing objects.

Analysis of the foreign legislation and modern practice demonstrates several main ways of relations mentioned: comprehensive applying copyright mechanisms; elaborating special adjacent law; indirect protection of not processed data massive; a number of intermediate models.

The study has permitted to discover the advances and shortcomings of every mean mentioned either. On the basis of the study, it is necessary to recognize the most appropriate (long-range) for Russia is the model of special adjacent law, especially as there are possibilities of modernization of existing legislation.

It is argued that complex implementation of the mechanism of indirect protection of not-processed data permits to manage without using legislation on copyright or law sui generis. In the same time, applying the complicated mechanisms of indirect protection of not processed data is comfortable first of all for big enterprises. On the contrary, for all others it creates atmosphere of uncertainty and impedes protecting interests of small business and average consumers. In this connection the copyright legislation and the right of sui generis is serving to the public interest, not to interests of separate groups of right owners. The latter may exist without such legislation. So, in the process of formation in a present time is the model combining weakened legislative regulation in the field with forced regulation on agreements/contracts level.

Probably, if not processed data is destined for a public using, the elaborator of database have no right to use a contract for limitation of possibilities of receiving and using of such not processed data. For settlement of the issue may be implemented various approaches, particularly, imposing upon database owner a duty to provide non-processed data «received from on source» on just conditions; recognizing non-fulfilling the duty as abuse by dominating position at the information market; imposing of a category of “users rights”; development of legislation on databases foreseeing directly a possibility of using data in such situations.

It seems that most appropriate is the last from approaches mentioned. It not only helps to resolute one of private task, but also lets to introduce an effective instrument for work of the society with information.

It is discovered the absence of international regulation in the field (it could help to provide creation and working mass of information); that factor is compensating in some degree by active development of «soft law». But increasing role of “soft law” produces new issues; so, it have to be applied carefully and in certain spheres only.

Level of implementation, recommendations on implementation or outcomes of the implementation of the results

The results of the research may be of use in law-making process, in teaching legal disciplines and in raising qualification of state and municipal employees.

Publications:


Research Handbook in Data Science and Law.: Edward Elgar Publishing, 2018. 
Kapyrina N. I. Design rights in EU PTAs – where does such internationalization lead? // Journal of World Trade. 2018. No. vol. 53:4 . 
Kapyrina N. I. Limitations in the field of designs // IIC International Review of Intellectual Property and Competition Law. 2018. Vol. 49. No. 1. P. 41-62. 
Бражник Т. А. Правовые вопросы обеспечения информационной безопасности личности // Информационное право. 2018. № №4(58). C. 17-21. 
Lloyd I. J. Standard Essential Patents – European Developments // Computer Standards and Interfaces. 2018. 
Savelyev A. Some risks of tokenization and blockchainzation of private law // Computers and Security. 2018. Vol. 34. No. 4. P. 863-869. doi