JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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3D Digitisation of Cultural Heritage: Copyright Implications of the Methods, Purposes and Collaboration
No full text3D technology is increasingly used in the digitisation of cultural heritage and while parties engaging in such projects need copyright as an incentive, the copyright status of such 3D models are unclear. It is usually assumed they would not be protected, as the scans of existing objects are less likely to be original compared to the 3D models created from scratch. However, it is often overlooked that these projects vary greatly in terms of the chosen method (whether it is laser scanning or photogrammetry), the project’s purpose (if it is for identical copying or if there is any restoration or creative contribution involved) and the collaboration of different people (ranging from employees to volunteers). This article will discuss the copyright implications of the chosen method, purposes and the level of collaboration, in order to show that each of these factors impact the category, originality and the authorship of the resulting work. It will be argued that it is possible, and in some instances very likely, for 3D projects to lead to protectable outcomes under the EU copyright law
Comment of the European Copyright Society on the Implementation of Art. 14 of the DSM-Directive 2019/790
Get PDFCutting Back Patent Over-Enforcement – How to Address Abusive Practices Within the EU Enforcement Framework
Get PDFThe debate over the degree of flexibility at the disposal of national courts in Europe to grant, deny, or tailor, injunctive relief in patent litigation seems to be a never-ending story. In most jurisdictions, absent exceptional circumstances, findings of infringement lead national courts to grant, quasi-automatically, an injunction. However, some scholars as well as industry players, have argued that in light of recent changes in litigation behaviour as well as technology developments, a general principle of proportionality should play a more prominent role vis-à-vis injunctive relief. It is in particular with reference to Art. 3(2) of the Enforcement Directive that such claims have been made. If UK courts have been inclined to consider that, under certain circumstances, a balance of interests may take place before granting a permanent injunction, German courts on the other hand have firmly stood on the ground that the principle of proportionality should not interfere with the right of patent holders to obtain such remedy. However, most recently, the German Ministry of Justice published a draft amendment to the German Patent Act providing some guidance on the role of proportionality vis-à-vis the rules of injunctive relief.
The issue of flexibility and injunctive relief is symptomatic of a broader debate regarding potential over-enforcement practices by right holders and the means to overcome or reduce the negative effects of these practices. Overall, this article examines how the origins and justifications of the Enforcement Directive, which focus on fighting piracy and counterfeiting, may affect the applicability of the principle of proportionality in the ever-changing context of patent law. How national courts have (or have not) relied on different mechanisms to infuse more flexibility in case of over-enforcement practices by right holders. And finally, how the principle of proportionality as well as the principle of the prohibition of abuse of rights may serve national courts in this endeavour of limiting excesses in patent litigation
Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU
Get PDFThis analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerisation and TPM-protected software into their design and function. In utilising software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this residual control held by manufacturers are examined in this analysis. The foregoing raises the question: what are the impediments to establishing a secondary market for repair of products which utilise software TPMs, and what are the implications of those impediments?
The structure of the EU’s software TPM framework acts a major impediment to establishing a secondary repair market for these products. The implications of this impediment are both legal and moral. This analysis surveys the development of anti-circumvention law in the international and European contexts before assessing the impact of the US approach to anti-circumvention on global manufacturing and design techniques. In assessing the EU legal framework, the analysis focuses on the inconsequential and distinct legal status given to TPMs which protect software from other types of works. The inability to circulate the means of circumvention acts as a key impediment to establishing a secondary market for repair. Further, the inapplicability of copyright exceptions and limitations to software TPMs, and the legal prohibition on circulation of the means of TPM circumvention, jointly leave little room for proactive policymaking. Through these legal protections, manufacturers can escape the perceived threat posed by TPM circumvention tools and, by extension, undermine independent technicians’ ability to carry out their businesses.
In assessing the John Deere case study, the analysis proposes that the refusal to allow circulation of the means of software TPM circumvention may constitute an abuse of a dominant position in the secondary market. In looking to jurisprudence in this area, the analysis explores the degree to which the refusal to provide the means of circumvention could amount to the denial of an essential facility which is indispensable for the secondary repair market. While some distinctions can be drawn between TPM circumvention and the types of intellectual property rights at issue in the EU competition law jurisprudence, the analysis proposes that the market effects are in many ways analogous. The analysis seeks to establish that consumers’ inability to conduct repairs to the products that they own is undesirable for a number of legal, moral and conceptual reasons. By prohibiting self-repair, software TPMs predetermine the relationship between technology, the law and society. This undermines the fostering of a morally responsible and technologically inclined citizenry which engages with and contributes to technological development. The analysis concludes with a call for a review of software TPM protections in the EU along with changes which could alleviate the foregoing market and moral implications while enabling consumers to assert their right to repair
The Quality of Law: How the European Court of Human Rights gradually became a European Constitutional Court for privacy cases
Get PDFUntil very recently, the European Court of Human Rights was willing to assess whether Member States’ executive branch had operated on a legal basis, whether national courts had struck a fair balance when adjudicating cases, and whether Member States had a positive obligation to ensure adequate protection of citizens’ human rights. One thing it did not, assess however, and that was scrutinising laws and policies as such, assessing whether Member States’ legislative branch had respected the principles of the rule of law and the minimum requirements of good law-making. That is, until recently. Propelled by cases revolving around mass surveillance activities, in just a couple small number of years, the Court has undergone a revolutionary transformation and now formally assesses the quality of Member States’ laws and even advises Member States’ legislative branch on how to amend its legal system in order to be Convention-compliant. Doing so, it has gradually turned into a European Constitutional Court, in particular for privacy cases
Abbe E.L. Brown, Charlotte Waelde (ed.), Research Handbook on Intellectual Property and Creative Industries
Get PDFThe Impact of Smart Contracts on Traditional Concepts of Contract Law
Get PDFThe concept of smart contracts entered the legal discourse only a few years ago, yet the subject has already given rise to remarkably different approaches. While some assume that smart contracts can be fully integrated into existing contract law, others predict that they will mark the beginning of the end of contract law. The aim of this article is to contribute to the assessment of smart contracts by examining how they can be situated within the traditional Western concept of contract law and how they differ from traditional contracts in the individual phases of a contract’s life cycle. In particular, these findings show that the automated execution of the promises contained in a smart contract, specifically their technical characteristics, lead to an increased significance of the contract drafting phase compared to the execution phase. Among other aspects, smart contracts are considerably more difficult to modify than traditional contracts and they are limited by the fact that the encoding of contracts requires an increased formalization of the contractual terms. On the other hand, the technical architecture of smart contracts offers possibilities ranging from automatic self-help to the enforcement of legally unenforceable agreements. It is precisely this autonomy of smart contracts from existing contract law that finally raises the question of whether an adaptation of contract law will become necessary and what difficulties such an adaptation would face
On Upload-Filters and other Competitive Advantages for Big Tech Companies under Article 17 of the Directive on Copyright in the Digital Single Market
Get PDFArticle 17 of the Directive on Copyright in the Digital Single Market (DSM), with its goal to close the so-called “value-gap”, contains several strong incentives to use and further develop filtering technologies. It also introduces a direct liability regime, which puts content-service sharing providers (CSSPs) at risk if they do not successfully implement upload-filters as it is only in exceptional situations that CSSPs will not be required to use these filters. Thus, article 17 DSM leads to a situation where nearly any company offering content-sharing services will be required to implement filtering tools in order to avoid the DSM’s direct liability regime. Having access to a strong upload-filter is therefore essential for CSSPs to be able to remain competitive in the new DSM era. However, only big tech companies have the financial power, technological knowledge and internal structure necessary to develop their own competitive upload-filter, which thus gives them an advantage over small and mid-sized CSSPs, as they most likely won’t have the means to develop their own upload-filter. While these smaller CSSPs will have the option to license the required filters from third-party providers like Audible Magic, they may not all be able to afford such provider’s services. In any event, there is a risk that small and mid-sized CSSPs will not have access to upload-filters. However, due to the technological limitations of upload-filters, even the most sophisticated filtering tools will most likely lead to an important number of false positives, which, in turn, will cause the over-blocking of a substantial amount of non-infringing content in the EU. These false positives will have to be reviewed by humans, since maintaining an effective and expeditious complaint and redress mechanism is required by article 17(9) DSM. The requirements of having an efficient upload-filter as well as human review of false positive cases will have an adverse financial impact on the big tech companies, but it is the small and mid-sized CSSPs that will most feel the blow. As a result, a likely unintended consequence of article 17 DSM is that it indirectly provides the big tech companies a competitive advantage over smaller CSSPs, who may end up being pushed out of, or prevented from entering, the market due to their inability to meet article 17 DSM´s requirements. This competitive advantage for big tech companies is a negative side-effect that will hurt competition and may lead to a greater market concentration in the EU amongst CSSPs. This appears to be a very expensive price to pay in the attempt to close the value gap
Game-theoretical Model on the GDPR - Market for Lemons?
Get PDFIn order to evaluate the regulatory effects of the GDPR on the institution of privacy as a public good, a data protection law and economical perspective should be applied. Conveying an economic point of view on the GDPR, we include a game-theoretical model on the rights and duties arising out of the GDPR in order to clarify the possible game-theoretical strategies and discuss the compensatory mechanisms for the problem of asymmetric information between the data controller and the data subject. Furthermore, we point out the concepts of control and the legal construction of “data ownership” as an unsatisfying concept. The fact that services within the scope of the GDPR can rewrite their privacy policies and afterwards request the users’ consent or otherwise lock them out of the service causes undue pressure on the data subject. The recent decision of the Federal Cartel Office of Germany disputed this behaviour and imposed far-reaching restrictions on Facebook. Thus, elements of the GDPR have begun to fall within the remit of competition law and the question of effective regulatory compensation regarding the economic effects in privacy should be addressed. In general, the measurement of privacy risks seems to be the first reasonable step towards empowering actors to make effective decisions
Lawfulness for Users in European Copyright Law: Acquis and Perspectives
Get PDFThis article analyses the emerging dynamics of the concepts of lawful user, lawful use, and lawful access in European Copyright law. It aims to demonstrate that these concepts, which are part of the EU copyright law acquis, have the potential to provide a fair solution to the controversies regarding the “rights” and “duties” of users in European copyright law. The article proposes to establish a legislative dynamic definition of lawful use in European Copyright Law. The concept must be clarified and given a broad meaning in order to cover both uses which are authorized by the right holders, but are also not restricted by law, by taking into account the legal ideals of fairness and reasonableness. This change must be accompanied by the recognition of all copyright exceptions as jus cogens and the establishment of effective procedural mechanisms to safeguard the enjoyment of lawful users’ rights