All issues > Volume 15 > Issue 15:1 (1-169)

Technology law scholars have recently started to consider the theories of affordance and technological mediation, imported from the fields of psychology, human-computer interaction (HCI), and science and technology studies (STS). These theories have been used both as a means of explaining how the law has developed, and more recently in attempts to cast the law per se as an affordance. This exploratory paper summarises the two theories, before considering these applications from a critical perspective, noting certain deficiencies with respect to potential normative application and definitional clarity, respectively. It then posits that in applying them in the legal context we should seek to retain the relational user-artefact structure around which they were originally conceived, with the law cast as the user of the artefact, from which it seeks certain features or outcomes. This approach is effective for three reasons. Firstly, it acknowledges the power imbalance between law and architecture, where the former is manifestly subject to the decisions, made by designers, which mediate and transform the substance of the legal norms they instantiate in technological artefacts. Secondly, from an analytical perspective, it can help avoid some of the conceptual and definitional problems evident in the nascent legal literature on affordance. Lastly, approaching designers on their own terms can foster better critical evaluation of their activities during the design process, potentially leading to more effective ‘compliance by design’ where the course of the law’s mediation by technological artefacts can be better anticipated and guided by legislators, regulators, and legal practitioners.

Data portability is a fluid concept that can be used in multiple contexts and can be defined in various ways. In the EU General Data Protection Regulation, it is given the legal status of a data subject right. The key objectives of the right to data portability in the GDPR are privacy, protection of personal data, and data subjects’ control over their data. However, it remains open how these goals materialise through the new-born right. This article suggests four possible ways in which the right to data portability could unfold in the future: (i) establishing control over personal data transfers, (ii) enabling (re)use of personal data, (iii) enabling better understanding of data flows, and (iv) facilitating equality and allowing the free development of personality. Data portability could increase transparency of data processing and could allow data subjects to control their online identities. It could also be instrumental in enhancing other rights and principles, such as equality. However, the provision on data portability in the GDPR faces many legal and practical constraints. The prospects of the right will depend on regulatory interpretation and interactions with other legal areas.

Copyright in Canada is subject to a number of statutory defences, of which parodies and non-commercial user-generated content (UGC) are but two examples. However, the interface between these defences and the protection of moral rights is not very clearly delineated in Canada’s Copyright Act. The statutory defences appear to immunise a user from liability for traditional copyright infringement but not from claims of moral rights infringement. Under this fragmentary approach, users engaging in acts of fair dealing or in the production of non-commercial UGC might still find themselves vulnerable to attack from author-claimants alleging that their moral rights have been violated. Through a comparative survey of key legislative provisions in Canada and the United Kingdom, this article explores the extent to which Canada can learn from the UK experience, and considers the viability of streamlining the scope of the statutory defences to copyright infringement, in order to clarify the interface between users’ rights, moral rights and economic rights.

The importance of biobanks has long been mooted, and multiple models of development and operation can be found as a result of many actors founding biobanks (from institutions starting disease-specific banks to governments starting national population biobanks). Many countries began developing biobanks in the absence of national policies to aid in that formation. Taiwan was one such country. Believing that the unique genetic makeup, distinctive lifestyles, and disease-causing factors of the Taiwanese people deserved study, Taiwan took steps to create Taiwan Biobank. This paper examines Taiwan Biobank’s development and governance and focuses on two matters in particular which generated consternation during the development of Taiwan Biobank: the position adopted in relation to autonomy and ethnicity; and the approach toward transparency and internal governance. It concludes that Taiwan Biobank’s conflict-ridden evolution represents a cautionary tale, an example of how not to develop a flagship resource.