JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Digital Content Directive And Rules For Contracts On Continuous Supply
Get PDFThis paper is in three parts. The first part gives a brief summary of the Digital Content Directive. The second part looks in more detail at longterm contracts for digital content or digital services, concentrating mainly on digital services but also considering contracts for digital content where there is to be “a series of individual acts of supply” and where the digital content is made available for a fixed period. It also considers “mixed” contracts under which digital services are to be supplied along with digital content and/or goods. The third and fourth parts look at gaps in the legislation from the points of view of consumers and then of traders, considering both issues that fall within the scope of the Directive yet nonetheless are left to Member States, and issues that are outside the scope of the Directive, and attempting to assess the extent to which these gaps may cause problems. The paper ends with a reminder that we need to consider also enforcement by public bodies and consumer organisations, which may have a particular importance in relation to the supply of digital content and services
Capacity of EU competition law to promote patent pools: A comparative study
Get PDFPatent pools have proved to offer significant efficiency to both licensors and licensees as they provide a one-stop-shop for a patents package, reduce transaction costs, and improve access to Standard Essential Patents (SEPs). The presented study examines whether, how and to what extend the EU competition law can promote patent pooling as a recommended mechanism for licensing SEPs. To reach this purpose, a brief review of pooling history shows how antitrust policy evolved with regard to pool establishment and operation. Patent pools in the modern era are connected to standardised technologies, and display tendency to product-based technologies rather than standard-based pooling. As a research methodology, a comparative analysis between the US and the EU antitrust laws shows that, although the procedural frameworks in the US contain only soft law, pooling there has undergone a more stable and straightforward treatment thanks to the publicly available Business Review Letters (BRLs) than in the EU which lacks a thorough assessment template. The presented substantive analysis illustrates how the two systems assess pooling\u27s potential anti-competitive effects. Despite several similarities in their evaluation, the US generally shows a slightly more lenient approach toward patent pools. Amongst the differences, the strict EU approach regarding inclusion of non-essential/substitute patents into a pool is criticised. Each paper section is concluded by a takeaway that summarises and discusses the outcomes
Demystifying The Role Of Data Dnteroperability In The Access And Sharing Debate
Get PDFIn the current data access and sharing debate, data interoperability is widely proclaimed as being key for efficiently reaping the economic welfare enhancing effects of further data re-use. Although we agree, the role data interoperability plays for data access cannot be straightforwardly answered. First, data interoperability, as a technical mechanism, is an inherent part of some regulated data access rights. In these particular cases, data interoperability is the key enabler for efficient (re-)use of data. This example shows the relevance of addressing data interoperability within the corresponding obligation of the access right. It also reveals that interoperability becomes key from a market failure perspective if the failure stems from a lack of efficient data use or potential lock-ins. Another example where data interoperability goes hand in hand with data access regimes is digital platforms. However, digital markets have a tendency to “tipping”. Such a tendency is not natural but induced by individual practices, e.g., the obstruction to interoperability. To this end, subjecting dominant online platform companies to additional interoperability obligations and stricter monitoring could be an effective approach to control the abuse of market power. Likewise, the current EC’s ambition to pave the way towards European digital sovereignty highly depends on the design of a data interoperability policy within the context of access to and re-use of data. With this background in mind, our contribution answers the question of when and how data interoperability, as a precondition to data quality, should be addressed by the legislature. The paper brings together the technical, legal and economic aspects of data interoperability, conceptualizing it within the data sharing debate. It first elaborates on the notion of interoperability in the current data access and data governance frameworks. An analysis of the different technical interoperability facilitators and the existent legal framework that may hinder data interoperability in this context follows. The debate of APIs is still ongoing and brings on fundamental questions to the proper functioning of exclusive rights. To what extent could IPRs and trade secret protection encumber data interoperability? What would be the implications of granting IPR or trade secret protection for APIs, both in terms of raising incentives for their provision and with regard to effects on competition? The paper continues by considering the pros and cons of a more normative approach toward data interoperability. Data interoperability should be treated only as a means to an end and not as an end in itself. It should be taken as a part of the broader data sharing and access discussion, reflecting on the positive and adverse effects alike. To this end, a public law approach within the realm of a data governance solution seems more favorable. Such a governance solution could also entail a more consistent solution to conflicting IP, database sui generis and trade secrets protection in data, which is currently not thoroughly and clearly assessed either. These conflicts need a more holistic assessment of overlapping exclusive rights and their re-usability options
Net Neutrality And Free Choice Of Routers And Modems In Europe
Get PDFThis paper provides context to the right to choose and use internet access equipment as a fundamental element of net neutrality in Europe. It sheds light on the developments over harmonisation of rules from 2016 to 2020 and analyses the future challenges involving the definition of the Network Termination Point, which will determine whether routers and modems should be treated as aspects of the private or public infrastructure. This study also presents insights regarding the free choice of terminal equipment as reflected in the annual reports prepared by National Regulatory Agencies on net neutrality
International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”): Applicable Law
Get PDFThe chapter “Applicable Law” of the International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protection is for the existence, transferability, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protection is whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and collective rights management in the field of copyright, the Guidelines suggest innovative solutions. Finally, the chapter contains a Guideline on the law applicable to the arbitrability of disputes
The Digitalisation Of Cars And The New Digital Consumer Contract Law
Get PDFCars are paradigmatic for the digitalisation of goods. Therefore, smart cars are chosen as an example to illustrate the application of the new rules of the Sale of Goods Directive (EU) 2019/771 and the Digital Content and Services Directive (EU) 2019/770 to goods with digital elements and to goods with incorporated and inter-connected digital content or services as supplied by the trader or by third parties. The article flags the demarcation between the two Directives and discusses potential grounds for non-conformity of smart cars with the contract. It then focuses on the consequences that the inclusion of incorporated and inter-connected digital content or services may have on the remedies that the consumer has available. It also briefly touches on the issue of damages that may be of great relevance in practice but that the two Directives do not tackle. The article concludes that although the allocation of liability with the seller would seem to make the consumer’s life easier, different rules for hardware and digital content and services within the Sale of Goods Directive can lead to complications. The parallel application of the Sale of Goods Directive and the Digital Content and Services Directive exacerbates this issue where the consumer acquires digital content and services separately. Vice versa, the seller would seem to have a vital interest to not have many third parties (beyond the manufacturer) being involved with the car, if only for reasons of cybersecurity
Digital Consumer Contract Law And New Technologies - Implementation Of The Digital Content Directive In Austria
Get PDFThis report deals with the implementation of the Digital Content Directive and the Sale of Goods Directive in Austria. It aims to give an overview of the current legislative progress regarding the transposition and the national status quo of warranty regulations as well as consumer protection regulations. Finally, selected contents of the Austrian draft for the implementation of the directives are introduced and discussed
The Case of Diem: A Distributed Ledger Technology-based Alternative Financial Infrastructure Built by a Centralised Multisided Platform
Get PDFIn pursuing its declared mission “to enable a simple global currency and financial infrastructure with a safe, secure and compliant payment system that empowers billions of people,” Diem has encountered apparent resistance from various social fields and politics. On the one hand, many critics recognise dangers to state currency sovereignty and the stability of the financial system; on the other hand, they fear negative developments regarding money laundering and the financing of terrorism. In addition, there are considerable concerns about an ever deeper erosion of privacy, consumer and data protection, which reaches a new dimension by linking such world currencies with already existing social networks governed and controlled by private entities. Under these circumstances, the chance of success of the Diem project clearly depends on the extent to which the aforementioned concerns can be dispelled and whether public trust can be established. Together with an overview of the developments of the Diem project since the inception of the underlying idea, the authors highlight the actors and their respective roles in an infrastructure primarily run and operated on distributed ledger technology (DLT), with computer nodes distributed across different jurisdictions. Moreover, it is argued that the level of control by end users over their digital representations and online footprints remains untested in the context of a worldwide digital financial infrastructure as proposed by Diem. The paper further elaborates and puts data protection and privacy of end users under scrutiny, outlining the need for a self-sovereign identity (SSI) management system in order to address the risks associated with correlation and profiling of individuals concerning their behaviour in payment systems
Interplay Of Digital Content Directive, European Electronic Communications Code And Audiovisual Media Directive In Communications Sector
Get PDFIn the near future, several new EU law acts such as the new Digital Content Directive (DCD), Electronic Communications Code (EECC) as well as the revised directive on audio-visual media services (AMVD) will be applicable to the communication sector. These directives are partly mutually exclusive but partly also cumulatively applicable. The article examines the complicated demarcation and interplay between these three directives, including their complicated interaction in case of bundle contracts, concentrating primarily on contract law issues. It shows, inter alia that subjecting number-dependent interpersonal communications services as a subtype of electronic communications services to the EECC and number-independent interpersonal communications services to the DCD results in different contractual remedies for consumers which cannot be easily justified. The article also argues that certain provisions of AMVD should be considered as part of objective conformity criteria under the DCD, entitling consumers to use contractual remedies if the content requirements are not complied with. Finally, the new rules on bundle contracts allowing consumers to terminate the whole bundle even if only one part of the bundle is affected constitute a considerable improvement in the consumer’s contractual rights compared to the previous rules
Liability For Artificial Intelligence And EU Consumer Law
Get PDFThe new Directives on Digital Contracts – the Digital Content and Services Directive (DCSD) 2019/770 and the Sale of Goods Directive (SGD) 2019/771 – are often seen as important steps in adapting European private law to the requirements of the digital economy. However, neither directive contains special rules for new technologies such as Artificial Intelligence (AI). In light of this issue, the following paper discusses whether existing EU consumer law is equipped to deal with situations in which AI systems are either used for internal purposes by companies or offered to consumers as the main subject matter of the contract. This analysis will reveal a number of gaps in current EU consumer law and briefly discuss upcoming legislation