JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Free Speech by Design – Algorithmic protection of exceptions and limitations in the Copyright DSM directive
Get PDFArticle 17 of the Directive for Copyright in the Digital Single Market imposes on certain platforms an indirect obligation of algorithmic filtering, while providing a plethora of textual safeguards and guarantees for freedom of speech and legitimate uses. We argue however that this traditional approach of formal safeguards and procedural remedies has proved its inability to effectively protect users\u27 rights to benefit from exceptions and limitations to copyright on digital platforms. We suggest an alternative approach, "free speech by design", aimed at embedding a concern for freedom of expression in the design of algorithmic copyright enforcement systems. Informed by CJEU case law (notably the recent Spiegel Online, Funke Medien and Pelham trio), we will assess how such approach can be leveraged to include, in the implementation of the DSM directive, an algorithmic protection for the exceptions for quotation and parody, which are of particular importance for the right to freedom of expression
Secondary communication under the EU copyright acquis after Tom Kabinet: Between exhaustion and securing work’s exploitation
Get PDFSince the adoption of the InfoSoc Directive, the CJEU has been dealing with a variety of questions on the interpretation of the broad right of communication to the public. A substantial share of the references for a preliminary ruling concerns secondary communication, which relies on communication initially authorised by the right holder. Despite the seemingly clear language of Article 3(3) of the InfoSoc Directive denying the exhaustion of communication right, the Court has occasionally exempted secondary acts from the authorisation of the right holder, relying on the arguments resembling the exhaustion principle of the right of distribution in respect of the tangible copies of a work. In the recent Tom Kabinet judgment, the CJEU denied the direct application of the principle in the case of the resale of e-books facilitated by the Tom Kabinet platform. Whereas the judgment is of significance to the future of the exhaustion principle under the acquis, this article focuses on its broader implications on secondary communication. The article argues that the decision is in line with the developments under the jurisprudence but is by no means a final say on the extent of exclusive control over secondary communication in the digital environment. Besides raising the question of appropriate boundaries of the exclusive rights and their role in the digital markets, the judgment invites the legislator to revise the framework and restore the legal certainty in respect of the scope of exclusive control over the work’s communication to the public
Comment of the European Copyright Society on the Implementation of the Extended Collective Licensing Rules (Arts. 8 and 12) of the Directive (EU) 2019/790 on Copyright in the Digital Single Market
Get PDFCatching sight of a glimmer of light: Fair remuneration and the emerging distributive rationale in the reform of EU copyright law
Get PDFAbstract
In the haze of highly polarized debates on the recently adopted EU Directive on Copyright in the Digital Single Market (CDSM), its focus on the notion of fair remuneration has passed over rather quietly. Three provisions in the Directive deal specifically with the fair distribution of revenue from online platforms to producers and, in turn, from producers to authors. Taking the cue from these new rules, the article investigates the restrictive interpretation of fair remuneration as fairly distributed income among right holders. The analysis purports to unearth the underlying distributive rationale of the new Directive as well as identify traces of it throughout the evolution of EU copyright law. By this token, the controversial CDSM Directive proves a valid opportunity to shed new light on the objectives of EU copyright law and assess its modernization in light of a distributive perspective
New types of marks available after the European Union Trade Mark Reform An Analysis in the light of the U.S. Trade mark law
Get PDFThis article analyzes one of the novelties brought about by the European Union trade mark reform; i.e. the removal of the graphic representation requirement opening opportunities to register new types of marks at the European Union Intellectual Property Office. In this article, the legal requirements for the registration of the non-traditional trade marks under the legal frameworks of the European Union and the United States of America are discussed and the new provisions of the European Union trade mark law on the representation of trade marks are assessed
Health Data Pools under European Policy and Data Protection Law: Research as a New Efficiency Defence?
Get PDFThe increasing employment of artificial intelligence and machine learning in the biomedical sector as well as the growing number of partnerships aimed at pooling together different types of digital health data, stress the importance of an effective regulation and governance of data sharing in the health and life sciences. This paper explores the emerging economic reality of health data pools from the perspective of European Union policy and law.
The goal of the study is to validate the role of the internal market integration objective in the data protection framework of special categories of data, and thus to unveil the alignment of the General Data Protection Regulation’s research exemption with the broader policy goals of the Digital Single Market Strategy.
After having described the phenomenon of health data pools as a primary means to conduct research in digital health markets, the study first contextualizes health data sharing practices at European policy level, with specific reference to the Digital Single Market Strategy. Here, both the digital health sector and the free-flow of information are emerging as strategic areas of European intervention.
Against this backdrop, the second section will enquire the regulatory framework regarding the processing of special categories of data for research purposes under the General Data Protection Regulation. As will be demonstrated, this framework partly disavows fundamental rights protection objectives, in order to promote research based on health data and related market objectives
