JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Access to Research Data and EU Copyright Law
Full text linkWith the advent of data-driven science and data-based business models in the 21st century, legal questions surrounding data, data rights and data law have become one of the most discussed topics both for lawmakers and for legal scholars globally. This is true particularly in the European Union, which in recent years has introduced data protection legislation, cybersecurity legislation, legislation regarding digital content and digital services, and more. Within this flurry of legal activity, one area of data law goes surprisingly unnoticed—the generation, ownership and use of research data. The slim attention it receives is disproportionate to its relevance in the digital economy. Not only are research data essential for the development of new technologies, they also feed machine-learning algorithms and are produced in any and all academic institutions. In order to maximize innovative potential, it is essential that researchers operate with legal certainty when using research data. The article seeks to contribute to this aim by exploring the legal framework in which research data can be accessed and used in EU copyright law. First, it delineates the authors’ understanding of research data. It then examines the protection research data currently receives under EU and Member State law via copyright and related rights, as well as the ownership of these rights by different stakeholders in the scientific community. After clarifying relevant conflict-of-laws issues that surround research data, it maps ways to legally access and use them, including statutory exceptions, the open science movement and current developments in law and practice
Responsible Vulnerability Disclosure under the NIS 2.0 Proposal
Full text linkBoth, the NIS Directive and the GDPR introduce breach reporting obligations. In particular, in the case of the GDPR this might include an obligation to go public about an incident. These legal obligations might be in conflict with good/common practice of responsible vulnerability disclosure. This paper briefly outlines reporting duties under NISD and GDPR and maps these to hypothetical scenarios where informing end users about cyber incidents might lead to uncontrolled vulnerability disclosure. In that view, this paper analyses whether the latest proposal for a NIS Directive 2.0 strikes the right balance between the need for swift reporting and the need to investigate a vulnerability when introducing a ‘coordinated vulnerability disclosure’
The Sanitised Platform
Full text linkFeminist legal scholar Vicki Schultz argues that US law on sexual harassment has created a “sanitised workplace”, by encouraging employers to suppress any kind of sexual behaviour, while ignoring broader issues around gender equality. This paper employs Schultz’s concept of sanitisation as a frame to critique current trends in European social media regulation, focusing on the 2019 Copyright Directive, 2021 Terrorist Content Regulation and the Digital Services Act proposed in 2020. EU law incentivises the deletion of various broadly-defined types of illegal content, which is also likely to suppress large amounts of legal and harmless content. Evidence of how social media platforms moderate content suggests that this over-enforcement will disproportionately suppress marginalised users and non-mainstream viewpoints, while increasing the influence of platforms’ commercial goals on online communications. Yet at the same time, by focusing primarily on content (i.e. individual posts and uploads) over broader contextual and design factors, European regulation fails to effectively address many social harms associated with major social media platforms. Schultz’s approach not only draws our attention to these failings, but provides theoretical insights as to how private ordering heightens these problems, enforces dominant discourse norms and subordinates online communication to commercial priorities
The Prohibition of General Monitoring Obligation for Video-Sharing Platforms under Article 15 of the E-Commerce Directive in light of Recent Developments: Is it still necessary to maintain it?
Full text linkThe absence of a uniform notion of general monitoring, introduced under the E-Commerce Directive 2000/31/EC, leads to different interpretations of the scope and the role of the prohibition on general monitoring obligations by the EU legislators and by the Court of Justice of the European Union. While the Court of Justice of the European Union balances freedom of expression and information, right to privacy and protection of personal data and right to property on the same level of importance in determining the scope of general monitoring, this article shows that special protections attributed to the interests that are fundamental to human life and to our modern democracies under primary EU laws are ignored. Unfortunately, this further deepens the segregation in the different interpretations of general monitoring and creates an inconsistency among the recent EU legislations. The article notes that this inconsistency eventually causes a legal uncertainty for the video-sharing platforms regarding their content moderation practices and thus turning the prohibition into an empty shell. At the current stage, the article reveals the need for a clear distinction for VSPs between vertically applicable content moderation measures arising from content or sector specific regulations and the prohibition on general monitoring obligations. However, for future regulation in the EU, it is suggested to find an alternative solution to online monitoring which can suppress the impact of online illegal activities without restricting fundamental rights of individuals
The Digital Services Act: From Intermediary Liability to Platform Regulation
Full text linkThe proposed Digital Services Act (DSA) aims to reconcile the responsibilities of online platforms with their position as key intermediaries and essential sources and shapers of information. The DSA proposes new, asymmetric obligations, while maintaining the liability exemption for hosting providers. This article aims to provide an overview of the tiered obligations and to critically evaluate the regulatory approach of the DSA. The article calls into question whether the liability exemption based on playing a passive, neutral role reflects the extensive moderation that online platforms undertake as part of their business model. It considers the consequences of taking the responsibility of online platforms out of the domain of liability and into the domain of regulation and suggests alternative approaches to the liability regime
Book Review: Competition and Regulation in the Data Economy: Does Artificial Intelligence Demand a New Balance?
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Open sourcing AI: intellectual property at the service of platform leadership
Full text linkArtificial Intelligence (AI) is one of the most strategic technologies of our century. Consequently, tech companies are adopting intellectual property strategies to protect their investment in the field, which encompasses copyright, patents, and trade secrets. While the number of AI-related patent applications is increasing, the number of open-source AI projects sponsored by major AI patent holders is also on the rise. This article explores the commercial and policy strategic reasons behind the growing adoption of open-source licensing in the AI space. More precisely, it assesses how IP rights are articulated around “openness” as a competitive factor in ecosystem competition, and how some players are using open-source licensing successfully to attract a critical mass of users and build an ecosystem around their AI platforms. Moreover, this article integrates the debate on the protectability of AI features by IP rights to assess the potential implications for open-source. Finally, it analyses the most used open-source licenses in AI projects and highlights existing and future challenges from an IP and contractual law perspective
Deviation from Objective Requirements for Conformity With a Contract of Digital Content or Digital Service: The Assessment of Its Use
Full text linkCurrently the European Union (EU) is taking major steps in different legal areas including consumer protection law to implement the Digital Single Market Strategy in order to ensure effective and smooth functioning of the internal market in the modern economy. The new EU policy concerning the Consumer Digital Content Directive (Directive 2019/770) lays down common rules on requirements concerning contracts between traders and consumers for the supply of digital content or digital service. At the same time, the Directive allows deviation from the objective requirements for conformity with a contract of a digital content or digital service on the basis of certain preconditions explicitly envisaged by Article 8(5) of the Directive itself. The present article aims to discuss the possibility for use of such a deviation by critically assessing the preconditions for deviation to take place in conjunction with typical examples likely to appear in practice. The article begins by discussing the applicable regulation, providing a possibility for deviation from objective requirements for conformity with the contract. The article then proceeds to critical assessment of each precondition for use of a deviation in the light of examples that might either be permitted or not permitted under the applicable regulation. Furthermore, frequently used forms for supply of digital content or digital service are discussed considering the previous discussion of these preconditions, as deviation from objective requirements for conformity of digital content or digital service are most often found in online contracts. The article finishes by summarizing the discussion in the article
Zen and the Art of Repair Manuals: Enabling a participatory Right to Repair through an autonomous concept of EU Copyright Law
Full text linkRepair manuals are an essential resource for repairing today’s modern and computerised devices. Though these manuals may contain purely utilitarian and uncopyrightable facts, they often receive copyright protection in their entirety as literary works. This protection can impede community-based efforts toward fostering a culture of participatory repair throughout the EU, including repair cafés and tool libraries. Participatory repair activities provide numerous environmental, social, and economic benefits. This article explores whether directive 2001/29/EC’s exception for “uses in connection with the repair or demonstration of equipment” at Article 5(3)(l) (the “Repair Exception”) may offer an avenue for enabling such non-profit activities. Following an examination of the shortcomings of recent EU-wide policy measures and industry-led commitments aimed at providing access to repair information, the article looks to the Repair Exception’s origins, member state implementation, and its interpretive scope as an autonomous concept of EU law. Considering the strong public interest in participatory repair and dissemination of technical knowledge, the article calls for a robust autonomous interpretation of the Repair Exception in line with Article 11 TFEU. This interpretation should enable non-profit repair activities throughout the EU while accounting for and balancing the legitimate economic interests of rightsholders