JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Framing links and the prohibition of formalities
Full text linkThe Berne Convention of 1886 prohibits subjecting foreign copyright holders to formalities that control the enjoyment and exercise of their rights. This has given an important impetus to the ‘international’ protection of copyrights. This century, there is increasing attention for the drawbacks of a prohibition of formalities. Formalities may make it more difficult to clear rights because they limit possibilities to make the registration of rights mandatory or to find solutions for the use of orphaned works. In its recent decision in VG Bild-Kunst case, the CJEU has arguably introduced a new formality. A copyright holder who wants to exercise control over hyperlinks and framing links to their work, has to use effective technological protection measures to clarify for which public they seek to make their work available on the internet. The reason for requiring technology is to make it easier for those making links to know what links are allowed and which ones are not. However, if foreign copyright holders can invoke the prohibition of formalities and can enforce their rights against makers of links, even if they did not use technology, the goal of more clarity on permitted uses would not be achieved. This article investigates how the old prohibition of formalities relates to the proposed new uses of technology
Disappearing Authorship: Ethical Protection of AI-Generated News from the Perspective of Copyright and Other Laws
Full text linkArtificial intelligence (AI) has been widely recognized as an important game-changer in our digital society. With help of AI, we are currently able to automate a number of various tasks, including creation of visual, musical, or textual content. Ethical approach to design, development and utilization of AI systems as well as their legal compliance and robustness are defined as prerequisites of building trust and adoption of the technology. In this paper we analyze whether law supports ethics in the specific domain of automated journalism by examining principles of accountability, responsibility, and transparency (the ART principles) from the perspective of legal interests protected by copyright and other laws. Other factors influencing ethical decision-making process, namely specificities of a business model and perception of authorship, are also taken into account. We present results of a recent pilot qualitative study illustrating that perception of authorship is closely related to perception of agency and responsibility. Our findings show that the current Czech law neither incentivizes implementation of the ART principles nor perception of agency in relation to AI systems for automated journalism. Perception of disappearing authorship may, thus, also lead to perception of disappearing responsibility. In order to solve these problems, we suggest introduction of new legal obligations and adaptation of existing personal rights to protect authors involved in the design of AI systems
Book Review: The responsibility of online intermediaries for illegal user content in the EU and in the US
Full text linkEnsuring the Visibility and Accessibility of European Creative Content on the World Market: The Need for Copyright Data Improvement in the Light of New Technologies and the Opportunity Arising from Article 17 of the CDSM Directive
Full text linkIn the European Strategy for Data (COM(2020) 66 final), the European Commission highlighted the EU’s ambition “to acquire a leading role in the data economy.” At the same time, the Commission conceded that the EU would have to “increase its pools of quality data available for use and re-use.” In the creative industries, this need for enhanced data quality and interoperability is particularly strong (section 1). Without data improvement, unprecedented opportunities for monetising the wide variety of creative content in EU Member States and making this content available for new technologies, such as artificial intelligence (“AI”) systems, will most probably be lost (section 2). The problem has a worldwide dimension. While the US have already taken steps to provide an integrated data space for music as of 1 January 2021, the EU is facing major obstacles not only in the field of music but also in other creative industry sectors (section 3). Weighing costs and benefits (section 4), there can be little doubt that new data improvement initiatives and sufficient investment in a better copyright data infrastructure should play a central role in EU copyright policy. The work notification system following from Article 17(4)(b) of the Directive on Copyright in the Digital Single Market may offer an unprecedented opportunity to bundle and harmonize data in a shared EU copyright data repository (section 5). In addition, a trade-off between data harmonisation and interoperability on the one hand, and transparency and accountability of content recommender systems on the other, may pave the way for new initiatives (section 6)
The (Missing) Parody Exception in Italy and its Inconsistency with EU Law
Full text linkThe Italian Copyright Statute does not contain a general exception for ‘parody, caricature and pastiche’ pursuant to Article 5(3k) of the InfoSoc Directive. In spite of this, commentators believe that the case law prior to the Directive sufficiently safeguards parodies against infringement, by granting them the status of autonomous, ‘transformative’ creations and leveraging on the fundamental freedoms of speech and artistic expression as enshrined in the Italian Constitution. In addition, they have lauded this approach for avoiding downgrading parody from an ‘overarching principle’ to a narrowly defined ‘exception’ to copyright protection. The present article criticizes this construct by dissecting and rebuking the related arguments. It emphasizes its inconsistency with the InfoSoc Directive and the recent case law of the Court of Justice of the European Union and submits that, paradoxically, framing parody as a principle leads to more restrictive outcomes than an ad verbum implementation of Article 5(3)(k)
Judicial Dialogue and Digitalization: CJEU Engagement with ECtHR Case Law and Fundamental Rights Standards in the EU
Full text linkThe aim of this article is to study CJEU engagement with ECtHR case law in cases con¬cerned with new technologies and digitalization via CJEU references to ECtHR rulings. The article exam¬ines the nature, extent and key characteristics of CJEU engagement with ECtHR case law and explores the effects of ECtHR judgments on CJEU adjudica¬tion. The analysis builds on CJEU decisions that ad-dress various aspects of digital innovation, attesting to the array of legal issues raised by digitalization and the distinct ways in which ECtHR case law is used by the CJEU. It shows that in cases dealing with digi¬tal change and transformation, CJEU interaction with ECtHR case law is not cosmetic: ECtHR case law cor-roborates, enriches and sometimes substantiates CJEU reasoning
Wiki (POCC) authorship: The case for an inclusive copyright
Full text linkPublic open collaborative creation (POCC) constitutes an innovative form of collaborative authorship that is emerging within the digital humanities. At present, the use of the POCC model (or Wiki authorship model) can be observed in many online creation projects the best known examples being Wikipedia and free-open source software (FOSS). This paper presents the POCC model as a new archetype of authorship that is founded on a creation ideology that is inclusive and as such, challenges the existing individualistic conception of authorship in exclusivity-based copyright law. Based on a comparative survey of the copyright law frameworks on collaborative authorship in France, the UK and the USA, the paper demonstrates the inability of the existing framework of exclusivity-based copyright law to give adequate legal expression to the relationships between co-authors engaged in collaborative creation within the POCC model. It proposes the introduction of an \u27inclusive\u27 copyright to the copyright law toolbox which would be more suited for giving legal expression to the qualities of inclusivity and dynamism that are inherent in these relationships
The blockchain ecosystem in the light of intellectual property law
Full text linkThe study at hand delves into the technologies composing blockchain and designates its most significant practical applications to date. The technological ecosystem identified through this investigation is then scrutinized from the perspective of intellectual property law. It examines, in particular, under which conditions and to what extent blockchain itself as a standalone product, its individual components, and its several applications may be subject to a) copyright, b) database and trade secret protection, and c) patent law. The objective of this investigation is to identify the most suitable legal basis for raising claims against unauthorized use of the pertinent subject matter. The analysis also explores adversities posed to intellectual property law by modern technologies and contemplates their circumvention. The benchmark for this examination is the intellectual property law currently in force in the EU
Out-of-Commerce: How the Existing Copyright Practices in Film Archives Impact on Widening Public Access to Cultural Heritage
Full text linkArticle 8 of the EU Copyright in the Digital Single Market Directive 2019 addresses the issue of out-of-commerce works, enabling cultural heritage institutions (“CHIs”) to provide public access to these copyright works in certain circumstances. This article addresses the problem of out-of-commerce works within the context of film archives, through data gathered through ethnographic and interview research. It will be discussed how copyright shapes and orchestrates wider archival practice. A copyright regime of archival practices is formulated here that proposes a deeper analysis of the likelihood of successful incorporation of out-of-commerce works into existing archival practices. This copyright regime is conceptualised as a discursive system that brings together the different elements of archiving practices: meanings, materials, and competences. Three sub-regimes are proposed: the Oppressive regime; the Pragmatic Compliance regime; and the Active Agency regime.
The value in understanding the existing copyright regime of archival practices is in formulating a theoretical framework for exploring and understanding the diverse copyright practices present and performed in the film archives, as this informs the incorporation of future legal reforms. This article then builds on the formulated theoretical framework, considering the practical likelihood of film archives being able to incorporate Art. 8 into their working practices, drawing on the empirical data gathered. This article concludes that issues of funding, copyright specialism, and fears of reputational harm may weaken the likelihood of successful incorporation into existing practices. Also, the inability to exploit the works commercially is likely to hinder the appeal to film archives, who need to generate revenue to continue their day-to-day work