JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Copyright and Generative AI: Opinion
Full text linkThe ECS considers that the current development of generative artificial intelligence (AI), under the regulatory framework set up by the Directive on Copyright in the Digital Single Market (CDSM) of 2019 and the AI Act of 2024 (Regulation (EU) 2024/1689), leaves legal uncertainties and several open questions. The following issues require, in the view of the ECS, urgent consideration by the European Union
From Curators to Creators: Navigating Regulatory Challenges for General-Purpose Generative AI in Europe
Full text linkThis study examines the regulation of general-purpose generative AI (GPGAI) in the European Union, dividing the analysis into two parts. First, it explores whether GPGAI, by generating new content, qualifies as a content provider and thus falls outside the scope of ‘safe harbour’ protections. Drawing on case law from the CJEU and the Digital Services Act (DSA), the paper argues that GPGAI, by actively contributing to content creation, goes beyond the role of a mere intermediary and should therefore not benefit from safe harbour exemptions. Having established GPGAI’s active role in content generation, the second part of the study addresses the broader regulatory implications, focusing on the AI Act and the revised Product Liability Directive. It contends that the AI Act’s risk-based approach is insufficient to address the dynamic and unpredictable nature of GPGAI, potentially leading to ineffective regulatory obligations. The paper concludes by advocating for more tailored legal frameworks to ensure the responsible development of GPGAI, striking a balance between fostering innovation and safeguarding user
Are Risks the New Rights? The Perils of Risk-based Approaches to Speech Regulation
Full text linkThis paper discusses the risk-based approach of the Digital Services Act (DSA) of the European Union. By embracing open-ended standards instead of rules and by imposing broad risk-identification and mitigation obligations on private parties, the DSA pushes forward a form of managerial co-regulation that is a paradigmatic shift in platform regulation that has already influenced other regulatory proposals around the globe. This paper argues that the move is consequential from the perspective of the role of human rights in Internet governance. We posit that the approach poses unique problems when seen from the popular three-prong test used by apex courts around the world to assess restrictions on freedom of expression. Furthermore, we argue that it pushes rights out of the center stage of Internet governance and may create a logic of “symbolic compliance” where the governance role of rights is further diminished. Finally, this paper identifies opportunities to address or mitigate the challenges identified, especially in an enforcement stage that remains quite open to these kinds of efforts
Common European Data Space for Cultural Heritage: Is the EU Taking the “High Road” from “A Single Access Point” to “A Single Market for Data” for Digital Cultural Content?
Full text linkThe Common European Data Space (CEDS), currently comprising fourteen sector- and domain-specific data spaces, was launched by the European Commission (EC) in 2018 in the context of the European Strategy for Data. The CEDS is devised to catalyse the European Union’s transformation into a competitive and digitally sovereign market power informed and governed by a robust legislative framework that would facilitate the cross-border and cross-sectoral flow and reuse of multiple types of data, which are collected and held by public-sector entities, within a “single market for data”. Despite their alignment with the overarching aims and objectives of the CEDS project, the Open Data Directive (ODD) and Data Governance Act (DGA) have limited impact on the deployment of the Common European Data Space for Cultural Heritage (CHDS), which constitutes one of the data spaces within the CEDS. This paper investigates the legal obstacles to the successful deployment of the CHDS, including the interplay of the ODD and DGA with other legislative frameworks essential to the realisation of the CHDS (i.e. cultural heritage law and copyright law). The paper suggests that this conundrum stems from the fact that the CHDS leans toward another landmark initiative of the EC: the Europeana platform, which established a “single access point” to cultural heritage assets. Considering that an implementing act for the deployment of the CHDS is yet to be adopted by the EC, the paper provides normative solutions to tackle the legal and policy problems hampering the operationalisation of the CHDS
Article 50 AI Act: Do the Transparency Provisions Improve Upon the Commission’s Draft?
Full text linkOn April 21, 2021, the European Commission presented the first draft of the EU Artificial Intelligence Act, marking a significant step in Europe’s regulatory approach to Artificial Intelligence (AI). The original proposal already included foundational transparency requirements, many of which are now formalised in Art. 50 of the Artificial Intelligence Act (hereinafter: AI Act). However, as AI technologies evolved rapidly – including the emergence of advanced tools like ChatGPT – the transparency obligations in Art. 50 AI Act were expanded to address new concerns around user awareness and content authenticity. Thus, notable additions such as labelling requirements for synthetic content and AI-generated texts were implemented in the final version of the AI Act.
In its finalised version, the AI Act specifies five distinct transparency obligations designed to enhance clarity and user protection across various AI applications. These obligations apply to interactive AI systems such as Chatbots (para. 1), AI systems for the creation of synthetic content (para. 2), systems for emotion recognition or biometric categorisation (para. 3), concerning AI-generated deep fake content (para. 4, subpara. 1), and AI-generated texts (para. 4, subpara. 2).
This article closely examines the transparency obligations, addressing potential issues of interpretation, practical challenges, and discusses whether the final version of the AI Act effectively addresses the problems present in the Commission’s draft
The Regulation of Emerging Technologies in Greek Law
Full text linkGreek Law 4961/2022 sets out the national framework for the regulation of emerging technologies under conditions of trustworthiness, safety and cybersecurity, consumer protection, respect for fundamental rights and the democratic rule of law.
Part A\u27 of the Law (articles 1-27) aims to establish the adequate institutional framework for the exploitation of the potential of AI by public and private sector bodies under conditions of fairness and security, as well as to strengthen the resilience of the public administration against cyber threats. In the context of serving this purpose, Part A of the Law includes regulations for (a) the development of artificial intelligence, and (b) the upgrade of information security and data protection in the public sector.
Part B of the Law (articles 28-57) aims at the exploitation by the public sector and the private market of the potential unleashed by advanced technologies in line with good practices, with the ultimate goal of consolidating the digital transformation of the country. For this purpose, Part B of the Law includes regulations regarding (i) the Internet of Things ("IoT"), (ii) Unmanned Aircraft Systems ("UAS"), (iii) distributed ledger, and (iv) 3D printing
Online Intermediaries and Trademark Owners: The Legal Position and Obligations of Online Intermediaries to Trademark Owners Prior and post-Louboutin v Amazon
Full text linkThis article argues that the legal standing of the online intermediary towards trademark holders has undergone a significant shift. Generally, only secondary liability was assumed, as the online intermediary was not held to be able to bear its own “primary” liability for conduct not directly attributable to itself, such as offering counterfeit products. However, in the Louboutin v. Amazon case, the CJEU provided a new standard for interpreting “commercial communication”, which is required for an “active role” in the infringing use. According to the CJEU, this should include the perspective of the informed and reasonably observant internet user. This reasoning is remarkable, as this perspective has not previously been considered when assessing whether there is active behaviour. The combination of the Louboutin v. Amazon judgement and the advent of the DSA with its associated new obligations mean that not only has the responsibility of online platforms increased, but they may also be held directly liable for infringing goods offered on their platform
Copyright and eLending in public libraries: an incomplete revolution?
Full text linkThe central purpose of public libraries can be articulated as the need to meet the informational and knowledge needs of societies, which has both an economic and a cultural dimension. These fundamental policy concerns underpin the interventions at EU level, such as the Public Lending Right (Rental and Lending Rights Directive 92/100/EC, codified as 2006/115/EC), and the jurisprudence of the Court of Justice of the European Union (CJEU). However, the understanding has been muddied in subsequent rulings by the CJEU that address the new possibilities of digital libraries. While in VOB (C-174/15), the Court adopts a dynamic or evolving interpretation by extending the concept of Lending to eLending, Tom Kabinet (C-263/18) reduces the possibility of libraries to access digital copies of books by narrowing the scope for digital exhaustion. This article traces the policy context of the Public Lending Right in this light and assesses what lawful sources may be available for libraries to obtain access to digital copies of books for the purposes of eLending. The findings are bleak: Libraries following VOB are free to lend electronically to the public, however in practice they have been left without a digital collection. The article argues that it is in the public interest to maintain the equivalence of Lending and eLending and offers a range of possible interventions (under copyright, consumer and contract law) that may support the goals of libraries in the digital space
The Right to Root: Constructing a Claim to Control Devices from the Right to Privacy
Full text linkEmpowering people with digital tools has been an enduring ideal throughout the history of computing. In some of the earlier visions, this was not only a matter of making life easier, it was also a matter of people gaining control over their digital tools. One solution to this problem which has been suggested is to provide users with a manual override to gain full control over a device, something called gaining ‘root’ – hence the ‘Right to Root’. Yet, there are no policymakers who have seriously entertained this as a possibility. For people pushing this right at a policy level, it would therefore be helpful to know whether this Right to Root can be constructed from human rights. In this article, I explore the European human rights-based arguments for a Right to Root, focusing on the right to privacy under the European Convention for Human Rights and the Charter of Fundamental Rights. I first discuss the origins of this ideal of gaining control over your own devices. I then show how users over the years have gained less control and how the Right to Root could enable them to regain control. I then explore how the Right to Root could be constructed from the right to privacy under the Convention and the Charter, by understanding it as a way to protect the values of autonomy, self-determination and seclusion. I conclude that a Right to Root can be grounded in the human right to privacy, but that further research is necessary to balance it with other interests, such as cybersecurity, traffic safety, health and intellectual property