Algorithmic discrimination and intellectual property: The dimensions of coexistence between fundamental rights protections

Abstract

Through a deductive-logical method, it’s addressed the delicate association between the fundamental dimensions of proportional effectiveness concerning algorithmic transparency, which emerges in the face of the new dynamics of automated algorithmic discriminations, and the guarantee of a minimum conservation of intellectual property rights over algorithmic applications. The theme is justified based on the foundational response of the judiciary – and regulation – which has been to find in the programming of such applications a black box to be opened and unveiled, shifting a civil consumer relationship toward a new verticalization (akin to the State-Individual effectiveness of fundamental rights). The assumption is that the extent to which programming, protected by secrecy, is unveiled should be proportional to the fundamental good being established as preeminent in the collision, with justifiable restrictions on its effectiveness.