JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”): Recognition and Enforcement
Get PDFThis section of the chapter “Recognition and Enforcement” of the International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”) establishes the conditions under which the effects of judgments rendered in a country may be extended to foreign jurisdictions. It seeks to favor international coordination and legal certainty by facilitating the cross-border recognition and enforcement of judgments relating to IP disputes. The Guidelines are based on a broad concept of judgment with restrictions concerning judgments not considered final under the law of the State of origin as well as certain provisional measures. The main provision of this section lays down the list of grounds on which a requested court must refuse to recognize and enforce a foreign judgment
Goods with Digital Elements And The Seller’s Updating Obligation
Get PDFThe updating rules of Directive 2019/771 on certain aspects concerning contracts for the sale of goods are new to most if not all Member States. It is a central issue regarding goods with digital elements as these goods often need to be updated in order to remain conforming to the contract. The article focuses on analysing whether the sellers’ updating obligation is well balanced with their respective rights. The article briefly explains the notion of goods with digital elements and thereafter, discusses the subjective and objective requirements for conformity of updates. Questions of which updates the seller is obliged to ensure are provided and how long the updating obligation lasts are being analysed. The article also focuses on the sellers’ liability period and rules on burden of proof. Finally, the seller’s right of redress is addressed. The article concludes that while the sellers’ obligations towards the consumer are provided for in as much detail as the versatile nature of goods with digital elements allows, this is not true regarding the rules on a seller’s right of redress
Transposition Of The Digital Content Directive (EU) 2019/770 Into Estonian legal system
Get PDFDigital Content Directive (EU) 2018/770 (DCD) is an innovative directive insofar as contracts for the supply of digital content and digital services were not regulated by EU law and like in most European countries, this area was not regulated in Estonia either. Member States extend the scope of the material regimes concerned. That includes the case of dual-purpose contracts and of platform providers who are not direct contractual partners of the consumer. Member States are also free to provide for longer time limits for the liability of the trader than those laid down in the Directives. The qualification and the categorisation of digital content and service contract also remain unsolved. The draft law for the transposition of the Digital Content Directive has not yet been submitted to the Estonian Parliament. The Ministry of Justice of Estonia has prepared a draft law concerning transposition of the DCD, Sale of Goods Directive and recently adopted the Modernization Directive which is not publicly available. The article briefly describes the process of transposition of the DCD and the place of digital content and digital service as concepts in the Estonian private law system, as well as legislative choices made during preparation of the draft. The most reasonable option is to transpose relevant provisions of DCD into general part of LOA which is consistent with current transposition practices. The author also discusses the possibility of extending the scope of application of the DCD. Contracts where consumers provide or undertake to provide personal data to the trader are contracts for payment under Estonian law. Despite the possibility that general rules on termination of contract apply, the need to regulate consequences for withdrawal of consent by specific rules is examined in the article. Currently, Estonian draft law provides a time limit for trader’s liability and limitation periods. The author analyses the existing system of traders’ liability and possible consequences if only the limitation period will be kept. Finally, the author provides some concluding remarks
Informational Self-Determination: A Convincing Rationale for Data Protection Law?
Get PDFEuropean data protection law rests on the assumption that individuals should have control of personal data about them. This control is often labelled “informational self-determination”. The idea of informational self-determination sounds con-vincing and promising at first. However, a closer look reveals that this idea can hardly serve as a convincing rationale for the European approach to data protec-tion law which aims to regulate all processing of personal data by government agencies and private actors. Rather, an important distinction must be made.
Informational self-determination may well be the underlying rationale of the fun-damental right to the protection of personal data as enshrined in Art. 8 of the Charter of Fundamental Rights of the European Union and it may even be quali-fied as a fundamental right in itself. Acknowledging such a fundamental right, however, only means that the state may not require citizens to provide infor-mation about themselves and government agencies may not use such information without a sound legal basis. But since private actors are not bound by fundamen-tal rights, it does not entail that the relation between private actors should be based on the idea of informational self-determination.
In fact, a closer look at the most important provisions of the GDPR reveals that only some of them can be based on the idea of control or informational self-determination. Most importantly and contrary to a widespread assumption, most data processing of private actors is not based on data subjects’ consent but on the legitimate interests of the controller. The relation between data subjects and private actors, namely businesses that process personal data about their customers, is therefore hardly ever based on exercising informational self-determination. This factual finding is supported by a normative analysis which demonstrates that the idea of informational self-determination can hardly be reconciled with the principle of private autonomy and the resulting need to provide a justification for the granting of a right that allows one private actor to control the activity of another. If one acknowledges that all social interaction is based on the processing of personal data, that most individuals have little interest in exercising control of personal data about them, and that data is a public good, it is hard to find a convincing reason for the granting of a right to informational self-determination which should govern the relation between private actors. Thus, while informational self-determination may be acknowledged as a fundamental right, it cannot serve as a convincing rationale for an all-encompassing regulation of the pro-cessing of personal data by private actors
Piercing the Digital Veil: A Case Study for a DAO Legal Framework under Swiss Law
Get PDFBlockchain technology is associated with the emergence of decentralised applications such as smart contracts and Decentralised Autonomous Organisations (DAO) as self-governing and software-based agents. The concept of a blockchain-based peer-to-peer vending machine serving both as a testing ground for the design of a marketplace for physical goods and a speculative artefact has been posited and analysed from an economic perspective by a group of scholars at the Center for Innovative Finance of the University of Basel, Switzerland. Building on this particular case study, this paper provides for a legal analysis under Swiss law. In Part 1, the economic analysis of the initiative is briefly described. In Part 2, the proposed concept is analysed from a de lege lata perspective, taking into account foremost liability questions both from Swiss private law (tort and contractual) and public law (criminal and tax law) perspectives, by building on literature and applicable case law. For this, the authors propose a hypothetical scenario upon which a legal analysis is applied. As a result of the analysis, a conclusion is drawn highlighting the status quo in Swiss legal framework, whereby the authors argue in favour of a possible reform for the purpose of enhancing legal certainty. In Part 3, the authors then examine, from a de lege ferenda perspective, the question of whether the Swiss legislative body would require introducing a bespoke legal framework for DAOs. For this, a reference is made to relevant foreign legislation such as the State of Wyoming DAO Bill without essentially taking a comparative approach
Implementation Of The Digital Content Directive In Poland: A Fast Ride On A Tandem Bike Against The Traffic
Get PDFJust like two cyclists on a tandem, Directive 2019/770 (DCD) and Directive 2019/771 (SGD) ride together in the same direction. Their ultimate goal is to increase the level of consumer protection and improve the functioning of the internal market by laying down conformity standards and remedies in contracts for the sale of goods and supply of digital content and digital services.
The purpose of this article is to present the way, in which the Directives concerned are scheduled to be implemented into the Polish legal system. In order to provide the necessary background, initial Polish experiences with the implementation of the EU consumer aquis are discussed. These early developments are then contrasted with the recently unveiled plans for the DCD and SGD implementation, which met severe criticism in Polish academia. Instead of an integrated approach, a “copy-paste” implementation outside of the Civil Code is proposed. This may result in a systemic disruption affecting not only consumer law, but also contract law as a whole
Creativity in crisis: are the creations of artificial intelligence worth protecting?
Get PDFUp until recently, intellectual creation and inventiveness were purely human activities, and their protection systems, that is, copyright law and patent law, have been built on the basis of motivating and enhancing human creativity. This ancient and self-evident assumption is being challenged due to AI technology today. This article explores the concept of creativity in the field of law from a legal point of view, as well as the impending serious moral and social consequences.
In the field of copyright law, intellectual creation is inextricably linked with humans and cannot be replaced by any advanced AI system. This results from the legal definition of work, and in particular from the element of “originality”. The Court of Justice of the European Union (CJEU) in its rich case law validates this position. In the field of patent law, ingenuity is also associated with a natural person through the moral right of inventorship. Here, however, the inventor\u27s intellectual endeavor derives from the field of cognition, while fields of human intellect concerning personality in general are not involved in the inventive activity nor are crucial for obtaining a patent. However, it is doubtful whether AI-generated inventions can be protected under patent law for other reasons.
Furthermore, decoupling the question of creativity stresses the need for specific legal protection of AI-generated works and inventions. Legislating a sui generis right in order to boost innovation, protect competition and maintain a healthy market for intellectual creations is suggested as the best option
COVID-19, Pandemics, and the National Security Exception in the TRIPS Agreement
Get PDFAs a result of the COVID-19 pandemic, a number of scholars and commentators have suggested that states can invoke the national security exception in Article 73(b)(iii) of the TRIPS Agreement to enable the suspension of patent laws in order to facilitate the production and importation of patented medicines and vaccines. This article therefore critically assesses the extent to which states can realistically invoke the national security exception in response to the COVID-19 pandemic. Drawing on two recent rulings by WTO Panels in both Russia – Traffic in Transit (2019) and Saudi Arabia – Intellectual Property Rights (2020) where the nature and scope of the national security exception was analysed, the article acknowledges that states may be able to invoke the national security exception in response to pandemics such as COVID-19. However, the article contends that the invocation of the national security exception in this context may not actually be helpful to states that do not possess local manufacturing capacity. Furthermore, the article argues that the national security exception cannot be used to obviate the strictures contained in Article 31bis of the TRIPS Agreement. It is therefore doubtful whether the national security exception in the TRIPS Agreement is a realistic option for states that do not possess local manufacturing capacity
A criterion-based approach to GDPR’s explanation requirements for automated individual decision-making
Get PDFAutomation of decision-making processes represents an essential element of the digital transformation. However, automated data processing based on machine learning methods poses increased threats to the fundamental rights of data subjects. One main reason for this is the fact that tracing and explaining the solution path responsible for a certain machine output requires high technical effort. The new European data protection law provides a framework for explanation requirements that apply to users of the new – automated – technologies. This article outlines the current state of discussion on explanation requirements for automated decisions and advocates a restrictive interpretation of the corresponding provisions in the GDPR