JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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A Plea for Digital Exhaustion in EU Copyright Law
Get PDFWith the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU’s obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs li-cense, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have de-parted from the principles developed in the earlier CJEU’s case law on Communi-ty exhaustion and caused systematic and teleological inconsistencies in the judi-cial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduc-tion of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effec-tiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate viola-tion of Articles 7, 16 and 17 CFREU
Big Data in the Insurance Industry: Leeway and Limits for Individualising Insurance Contracts
Get PDFWith the advent of big data analytics, the individualisation of mass market insurance policies has become commercially attractive. While this development would have positive economic effects, it could also undermine the principle of solidarity in insurance. This paper aims to outline the different regulatory approaches currently in place for dealing with this fundamental challenge by analysing the insurance, anti-discrimination and data protection laws of Switzerland and the U.S./California pertaining to health, renters and automobile insurance. It will be shown that the leeway for individualising insurance contracts is vanishingly small for (mandatory) health insurance on both sides of the Atlantic. By contrast, the two legal systems pursue different regulatory approaches with regard to the other two types of insurance. Renters and automobile insurance are predominantly governed by the freedom of contract principle in Switzerland, whereas in California sector specific regulations significantly limit the informational basis of insurance companies, thereby limiting the leeway for individualisation to a large extent. While Swiss anti-discrimination law hardly restricts the individualisation of insurance contracts, U.S. and
California law prohibit such individualisation based on protected characteristics, in this way further restricting the remaining leeway. While privacy laws in the U.S. and California set some significant but rather specific limits for the individualisation of insurance contracts based on the use of personal data, the all-encompassing Swiss (and European) data protection law is clearly the most important barrier to individualisation in Switzerland. Namely, it remains unclear whether the processing of personal data for the purpose of individualising insurance contracts may be based on the legitimate interests of the insurer. As a consequence, insurance companies are advised to always obtain their customers’ consent for making individual offers based on big data analytics. The authors conclude that instead of indirectly hindering the individualisation of insurance contracts through data protection law, Swiss (and European) lawmakers should initiate a dialogue involving all stakeholders to determine which sectors of insurance should be dominated by the principle of solidarity and in which sectors and on what informational basis the individualisation of insurance contracts should be allowed
Response to the 2018 Sarr-Savoy Report: Statement on Intellectual Property Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and associated materials
Get PDFData Governance in Connected Cars: The Problem of Access to In-Vehicle Data
Get PDFThrough the application of the technological solution of the “extended vehicle” concept, the car manufacturers can capture exclusive control of the data of connected cars leading to serious concerns about negative effects on competition, innovation and consumer choice on the markets for aftermarket and other complementary services in the ecosystem of connected and automated driving. Therefore, a controversial policy discussion has emerged in the EU about access to in-vehicle data and the connected car for independent service providers in the automotive industry. This paper claims that this problem should be seen as part of the general question of the optimal governance of data in the ecosystem of connected and automated mobility. The paper offers an overview about this policy discussion and analyzes this problem from an economic perspective by utilizing a market failure analysis. Besides competition problems (especially on markets for aftermarket and other services in the connected car) and market failures in regard to technological choice (extended vehicle vs. interoperable on-board application platform), information and privacy problems (“notice and consent” solutions) can emerge, leading to the question of appropriate regulatory solutions. The paper discusses solutions through data portability, data rights, competition law, and recommends a sector-specific regulatory approach
Rethinking Intellectual Property – Balancing Conflicts of Interest in the Constitutional Paradigm
Get PDFThe Intersection of 3D Printing and Trademark Law
Get PDFThe paper discusses the possible impact of 3D printing technology on a trademark protection system and argues that, despite some obstacles, selling certificated 3D-printable files by companies can be a reasonable new approach in order to face up to the changes brought about by this new technology. 3D printing (three-dimensional printing, counter crafting), perceived by some as a disruptive technology, is an additive manufacturing technique to create objects by joining or printing layer upon layer of material based on digital models. Certain features of this technology such as democratization and dissemination of manufacturing process, participation of hobbyists, the role of CAD files, the possibility of introducing modifications into a file, and the worldwide scope of 3D printing based on the Internet connectivity may have an impact on trademark protection to a certain extent. The paper analyzes the cases of this impact and suggests possible solutions: selling 3D-printable certificated files by trademark owners; price regulation; and better educational programs on counterfeit goods. From the hard law perspective, the solution may lie in establishing clear rules of liability for intermediary online platforms
