JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Consumer’s Remedies For Defective Goods With Digital Elements
Get PDFThis paper deals with the remedies for lack of conformity under the EU Sale of Goods Directive, focusing in particular on goods with digital elements. The subject of analysis is also the related problem of digital obsolescence and the issue of effectiveness of consumer rights
The concept of Joint Control under the Data Protection Law Enforcement Directive 2016/680 in contrast to the GDPR
Get PDFWhile the EU General Data Protection Regulation 2016/679 (hereinafter the GDPR) is on everyone\u27s lips, the EU Data Protection Law Enforcement Directive 2016/680 (hereinafter the LED) exhibits a rather shadowy existence. This also applies with regard to the concept of multiple controllers determining purposes and means of data processing activities (Joint Control). The LED requires the Member States to implement a Joint Control concept similar to the concept set out under the GDPR. Differences between the Joint Control concepts under the GDPR and LED lie in the details, but at the same time they are significant and representative of the specifics and particular aims of the LED compared to the GDPR. The following article discusses the objectives of the LED and the Joint Control concept and explains them on the basis of the differences between the provisions related to Joint Control (Art. 26 GDPR and Art. 21 LED). In addition, collisions of application of GDPR and LED and its impact on Joint Controllers are discussed.
From Theory To Practice: Exercising The Right Of Access Under The Law Enforcement And PNR Directives
Get PDFThe right of access is often considered as the most important prerogative in the data subject’s toolkit because it grants individuals the possibility to complement the information made available through privacy notices, but also because it paves the way for the exercise of other rights enshrined in data protection law, such as the rights to erasure or rectification. While the efficiency of the right of access under the General Data Protection Regulation has already been abundantly documented, there is a lack of empirical evidence as to its counterparts in the area of law enforcement and security. This contribution aims to fill that gap and provide insight into the practical exercise of the right of access in the Law Enforcement and Passenger Name Record Directives. Through both traditional desktop research and a legal-empirical study, the present paper delves into the national transpositions of those texts in a selection of Member States, and highlights the issues encountered when practically exercising the right of access against competent authorities and Passenger Information Units. It also draws upon the lessons learned from that exercise and suggests solutions and ways forward in order to overcome the obstacles faced along the way
Direct Copyright Liability As Regulation Of Hosting Platforms For The Copyright-Infringing Content Uploaded By Their Users: Quo Vadis ?
Get PDFThe potential direct liability of hosting platforms such as YouTube and Dailymotion, which provide the technical conditions for their users to upload and share copyright-protected content, for the infringement of the right of communication to the public (CTTP) in Article 3(1) Directive 2001/29/EC (and pre-Directive 790/2019) represents one of the most complex and controversial aspects of current European Union (EU) copyright law. The test in Article 3(1) is opaque and may even support opposing conclusions on the matter. Doctrinally, the appropriateness of Article 3(1) to regulate hosting platforms is shaky as it is unclear how the regulation of platforms via Article 3(1) may reflect the balance of interests of rightsholders, of platforms, and internet users. Hosting platforms facilitate both the legal and illegal sharing of copyright content indiscriminately and in an automated fashion. When legal content is shared through their service, hosting platforms play an important role in facilitating the exercise of user’s freedom to send and receive information safeguarded by Article 11 of the EU Charter of Fundamental Rights.
The potential application of direct copyright liability to hosting platforms, including the spectre of damages, may chill technical innovation in the area. Some platforms may even close and the opportunities for internet users to share legal content reduces as a result. To address these issues, this article analyses the three alternatives for limiting the responsibility of hosting platforms under Article 3(1). The article first analyses the complex test for CTTP under Article 3(1). To balance the application of liability, Alternative 1 explores the option of integrating a ‘duty of care’ element conditioned by a standard of proportionality within the test for CTTP. Alternative 2 challenges the notion that direct responsibility may be attributed to operators of hosting platforms. It analyses, but ultimately dismisses, the situation where host providers may be considered as mere providers of facilities for enabling communication. Alternative 3 advances a novel application of the test under Article 3(1) which shows that operators of certain hosting platforms do not engage in acts of “communication” of the illegal copyright material uploaded by their users. The purpose of the paper is to bring attention to particular possible constructions of hosting platform liability and their broader implications
Towards Unfair Political Practices Law: Learning lessons from the regulation of unfair commercial practices for online political advertising
Get PDFOnline political advertising operates in a tense forcefield between political and commercial elements and thus presents regulators with a difficult conundrum: because online political advertising is political rather than commercial speech, it is destined to follow a different regulatory tradition than commercial advertising. And yet many of the tools used, players involved and concerns triggered by modern online political advertising strategies very much resemble the tools, players and concerns in online commercial targeting. Commercial advertising is subject to consumer law and unfair advertising regulation, including rules about unfair commercial practices. Unfair commercial practices law and other rules about commercial advertising, however, are explicitly not applicable to forms of non-commercial political or ideological advertising. An important reason why this is so is the different level of protection of political and commercial speech under fundamental rights law standards. And yet with the ongoing commercial turn in advertising, the traditional division between forms of commercial and political advertising is no longer that self-evident. Also, it cannot be denied that commercial advertising law has a long tradition of thinking of where and how to draw the line between lawful advertising and unlawful persuasion through withholding or misleading consumers about the information they need to take informed decisions, or abusing superior knowledge, exerting undue psychological pressure and engaging in other forms of unfair behaviour. The question this article explores is whether there are lessons to be learned from the regulation of commercial advertising for the pending initiatives at the national and the European level to regulate online political advertising, and online political targeting in specific
Social Welfare, Risk Profiling and Fundamental Rights: The Case of SyRI in the Netherlands
Get PDFThis article discusses the use of automated decisioning-making (ADM) systems by public administrative bodies, particularly systems designed to combat social-welfare fraud, from a European fundamental rights law perspective. The article begins by outlining the emerging fundamental rights issues in relation to ADM systems used by public administrative bodies. Building upon this, the article criti-cally analyses a recent landmark judgment from the Netherlands and uses this as a case study for discussion of the application of fundamental rights law to ADM systems by public authorities more generally. In the so-called SyRI judgment, the District Court of The Hague held that a controversial automated welfare-fraud de-tection system (SyRI), which allows the linking and analysing of data from an ar-ray of government agencies to generate fraud-risk reports on people, violated the right to private life, guaranteed under Article 8 of the European Convention on Human Rights (ECHR). The Court held that SyRI was insufficiently transparent, and contained insufficient safeguards, to protect the right to privacy, in violation of Article 8 ECHR. This was one of the first times an ADM system being used by welfare authorities has been halted on the basis of Article 8 ECHR. The article critically analyses the SyRI judgment from a fundamental rights perspective, in-cluding by examining how the Court brought principles contained in the General Data Protection Regulation within the rubric of Article 8 ECHR as well as the im-portance the Court attaches to the principle of transparency under Article 8 ECHR. Finally, the article discusses how the Dutch government responded to the judgment. and discusses proposed new legislation, which is arguably more inva-sive, with the article concluding with some lessons that can be drawn for the broader policy and legal debate on ADM systems used by public authorities. im-plications
Digital Content Directive And Copyright-related Aspects
Get PDFThis article deals with the difficult relationship between the Digital Content Directive and copyright principles. Applying the objective con¬sumer expectation test as laid down in Art 8 DCD, typical copyright restrictions such as those related to the exhaustion principle or limiting the use to a nar¬row circle of users are examined. Moreover, the trian¬gle between rightholders, traders, and consumers as reflected by licenses are scrutinized
Abuse Of Patent Enforcement In Europe How Can Start-ups And Growth Companies Fight Back?
Get PDFThe aim of this article is to examine whether smaller companies have any adequate measures to defend themselves against abusive claims. Patent holders can assert their patents inappropriately, thus going against the functions of patents, and going outside the claims and boundaries of what is protected. This is more damaging for smaller companies as they have fewer financial resources. As a corollary, start-ups and growth companies must be able to defend themselves against abusive claims. This article evaluates the abuse of patent enforcement and analyses the abuse of rights principle, the abuse of dominant position, the Enforcement Directive (IPRED) and unjustified threats. The article analyses whether these elements provide tools for start-ups and growth companies when acting as defendants in patent infringement cases that could be considered abusive. The abuse of patent enforcement is increasing for several reasons, such as, the increase in the number of patents, the fact that they are becoming more valuable, the emergence of a growing market for the sale of patents, and the introduction of new entities specialised in patent licensing and litigation. The article argues that the elements presented in this study mitigate, to a certain extent, the potential ill effects of abusive legal proceedings. However, there are limitations and uncertainties; for example, the case law often only applies to specific circumstances, and national practices vary. As a corollary, these legal tools are rather complicated for start-ups and growth companies to apply
International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”): Jurisdiction
Get PDFThe chapter “Jurisdiction” of the International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”) provides where international intellectual property claims can be brought to court. It defines the basic forum at the defendants domicile and alternative fora for contractual, infringement and other kinds of claims. It also provides grounds that should be taken as insufficient for the granting of jurisdiction. The chapter states to what extent validity and registration claims should be subject to exclusive jurisdiction. Finally, it comprises Guidelines for the coordination of claims pending before different courts