PROBLEM STATEMENT AND AMBITION

1. Political institutions on both sides of the Atlantic commissioned extensive reports to predict what emerging and future technologies with the potential to improve or change human capacities might look like. These reports urge the development of guidelines and recommendations for policies, regulation and governance of human enhancement technologies (hereinaft er: HETs) in a socially desirable way. Furthermore, academics, including legal scholars and ethicists, amongst others, discussed HETs from their respective specific angles. However, these analyses oft en lack a broader exploration and an overall perspective on the ethical and legal issues associated with a particular type of human enhancement technology.

To conceptualize data commodification – as per the following chapter – I first need to be able to rely on an appropriate foundational framework. The identification of it constitutes the object of the present Chapter 1. I first introduce the key notions connected to markets and commodification as a process leading ultimately to markets as well as commodification studies as the strand of the literature that analyzes these processes. Then, I introduce the seminal conceptualization of commodification by Radin, which constitutes the foundational framework for this book. At this point, it remains to be further explained and justified why it is relevant for my present endeavor. The justification is threefold and pertains, in turn, to the following elements: The justification of commodification studies as a field; the comparability of data with sex, body parts and babies in that they are also ‘contested commodities‘, which calls to mind Radin‘s spectrum approach to commodification; and finally, the justification of the specific relevance of Radin‘s approach amidst commodification studies, given the existence of other spectrum approaches to the commodification phenomenon.

Part I was dedicated to the understanding of the data commodification phenomenon. Based on the seminal work of Radin on commodification, I designed a data commodification spectrum, ranging from data complete commodification to data complete non-commodification. To do that, I adapted the ‘commodification indicia‘ to the specificities of data commodification, leading to four ‘data-commodification indicia‘. They pertain to the identification of the commodity – and thus the relevant resource and object at stake, the identification of the relevant actors, of the relevant framework and, finally, of the value(s) at stake. To form the data commodification spectrum, I clustered data governance normative arguments where I could identify a significant portion of the literature as falling into the ‘efficient data market paradigm‘ while the ‘fair data market paradigm‘ is also a prominent portion of the debate – with internal variations. Other than that, I could find no consistent and well-developed paradigm. I analyzed the data commons literature, yet a rather immature and scattered one but full of teachings. An element learned from the data commons literature that bears significance for the present book is the conscious deliberation over what should be considered as the relevant resource that contrasts with the focus on ‘data‘ (and data only) in both the efficient and the fair data markets paradigms. Finally, I identified a burgeoning cluster that I referred to as ‘societal data governance‘ that essentially draws data governance conclusions from the characterization of data commodification as a key and problematic element of data capitalism.

INTRODUCTION

46. People have been trying to become smarter, advance their skills and knowledge, or improve themselves in many different ways, respects, and degrees. All of these improvements could come in different shapes and formats. One may think of a person following a healthy diet to improve their health, someone reading a book to advance their knowledge on a given topic, or running every evening to prepare their body strength to finish a marathon.

47. More recently, people have also been striving to improve themselves using different technological tools. For example, new and emerging technologies are used to improve sports performances, concentration at work, overall health, and similar. The term ‘ technologies ‘ should mean the application of scientific knowledge to the practical aims of human life.

WHAT THIS BOOK DOES NOT CONTAIN AND WHAT IT DOES CONTAIN

Beyond online platforms, data are nowadays used as key economic resources in a broad array of contexts. Huge amounts of data are, for example, generated in sectors as disparate as agriculture, home appliances and wearables. In the agriculture sector, data collected in farms can inform on the quality of soils and thus on the need for intrants or to ‘monitor crop development‘. In the home appliances sector, data generated throughout the use of ‘smart‘ devices may for example reduce electricity consumption and support individuals in their cooking experience. Data generated through the use of wearable fitness trackers can provide information, for example, on the sleeping patterns of individuals wearing them, which could be used for medical purposes.

That data are valuable economic resources has become so self-evident that every book on data worthy of the name is expected to start with a discussion on this phenomenon together with a metaphor that, according to the author, best describes data as economic resources. Are data ‘the new oil‘insofar as they are turned into the infrastructure for today‘s economy and society? Or are they squarely‘the lifeblood‘ of society? Or, alternatively, should data be compared as air, speaking to their volatility? Or maybe data are best described as rivers, that concern all the persons through the property of whom they flow? Or yet another flourishing metaphor views data as labor.

THE MAIN CONCLUSIONS AND RECOMMENDATIONS

593. Based on the findings from the research performed in this book, this final chapter provides a summary of the main conclusions that were established at the end of some of the preceding chapters. This chapter also develops normative recommendations on how ethical issues, analysed in Chapter 2 , and legal uncertainties, outlined in Chapter 3 , associated with mood HETs could be tackled to answer the main research question of this book:“How should policymakers and lawmakers address the main ethical and regulatory challenges of human mood enhancement technology?“.

594. Before discussing ethics and the law of mood HETs, some notions and concepts needed to be clarified first. The notion of mood falls, together with notions of emotions and feelings, within the umbrella term of affective states of people.

INTRODUCTION

425. Obligation to ensure the availability of the product/service as main obligation of the PSS supplier – The main obligation of the PSS supplier in a PSS contract is to ensure the availability of the product and/or the service to the PSS user. This obligation falls into two sub-obligations. First, the PSS supplier must make the product/service available to the PSS user, which generally implies a delivery obligation. Depending on the contractual qualification of this obligation, the risk regime, which essentially boils down to the question which party bears the risk of loss or damages to the product due to force majeure, will also diff er. These questions are discussed for the main three types of PSS in section 4.2. Second, it does not suffice to make the product/service available to the PSS user, this delivered product/service must also be in conformity with the PSS contract. Therefore, section 4.3. analyses the conformity requirements, the rules on liability for non-conformity and the available remedies for non-conformity for the three main types of PSS contracts. Section 4.4 evaluates the legal framework for these two sub-obligations and proposes normative solutions. Finally, section 4.5 sets out model clauses on the obligation to ensure the availability of the product/service for both use-oriented and result-oriented PSS contracts.

INTRODUCTION

800. Ownership, moral hazard, and end-of-life of the product – An essential characteristic of use-oriented and result-oriented PSS (and contrary to product-oriented PSS where ownership is still transferred) is that the PSS supplier wishes to retain the ownership of the product. The first section of this chapter (section 7.2) therefore deals with the question of how the PSS supplier can protect its right of ownership of the product. The second section of this chapter (section 7.3) discusses moral hazard, i.e. the risk that PSS user will treat the product less carefully then if he were the owner of the product. Here, particular attention is given to how this risk can be (contractually) mitigated. Finally, the third section (section 7.4) deals with the end-of-life stage of the product. Here, the responsibilities of the PSS supplier regarding collection, repurposing, and/or disposal of the product in use-oriented and resultoriented PSS are discussed compared to the responsibilities of the PSS supplier in product-oriented PSS. Additionally, this section also analyses how circular guarantees can be incorporated into the PSS contract.

INTRODUCTION

352. Importance of contractual qualification – PSS contracts are usually concluded between two parties: a) the PSS supplier and b) the PSS user. Yet more complex constructions are also possible. For example, PSS contracts can be offered through a platform, or a third party can be involved in the financing of the product. The parties to a PSS contract derive rights and obligations from both EU law and national law. To determine which rules apply to PSS contracts, it is therefore important to consider their contractual qualification.

353. Qualification under EU law – When considering the qualification of the PSS contract under EU law, the CRD is the first legal instrument that comes to mind. This directive makes a distinction between a “sales contract” and a “services contract”. According to the CRD, a “sales contract” means “any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services.”

Analysed Terms and Conditions

INTRODUCTION

80. PSS under general contract law – This chapter sets out some basic principles of general contract law and applies them to PSS contracts. This provides the necessary context, concepts and legal building blocks that allow the following chapters to delve deeper in the contractual rights and liabilities of the PSS user and the PSS supplier.

First, the formation of the PSS contract is discussed. Section 2.2 analyses the requirements for the validity of the PSS contract, such as consent, capacity, object and cause. It also discusses the process of formation of the PSS contract, such as offer and acceptance, pre-contractual information, and the conclusion of the contract through representation.

Second, this chapter looks at the widespread use of standard contracts and general terms and conditions for PSS. Section 2.3 explores the role, function, and risks of using standard contracts for PSS contracts, as well as the requirements for incorporation/enforceability of the terms and conditions into the PSS contract. Furthermore, it deals with the (un)fairness of the terms and conditions, mainly through an analysis of the Unfair Contract Terms Directive (“UCTD”) and its national implementation in Belgian and the Netherlands.

The PSS user-consumer's right of withdrawal is examined in section 2.4. Here, there is a particular focus on the diff erence between the right of withdrawal for product-oriented PSS (which qualify as sales contracts for the purposes of the CRD) and use-oriented and result-oriented PSS (which qualify as service contracts for the purposes of the CRD).