JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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P. Bernt Hugenholtz (ed.), Copyright Reconstructed: Rethinking Copyright’s Economic Rights in a Time of Highly Dynamic Technological and Economic Change
Get PDFResponsibility for Data Protection in a Networked World: On the Question of the Controller, “Effective and Complete Protection” and its Application to Data Access Rights in Europe
Get PDFIn the current networked world, almost no system in which personal data is processed stands on its own. For example, websites and mobile applications integrate third party services for behavioral targeting, user analytics, navigation, and many other functionalities. Governments build central infrastructures to share data efficiently between different branches of government and with other organisations. This paper analyses the current system in Europe for determining who is (or better, are) responsible for observing data protection obligations in such networked service settings. In doing so we address the following problems: (1) of ambiguity in applying the concept of data controller in networked settings; and (2) of insufficiencies in the framework for establishing the extent of the responsibilities in situations of joint control. We look at how the law and regulators address these problems and how the European Court of Justice tackles these problems by applying the principle of “effective and complete protection”. The issue of joint responsibility has gained particular relevance in the wake of Wirtschaftsakademie, a case recently decided by the European Court of Justice. In this case, a Facebook fan page administrator was found to be a joint-controller and therefore jointly responsible, together with Facebook, for observing data protection rules. Following this decision, there are many more situations of joint control than previously thought. As a consequence, part of the responsibility for compliance with data protection legislation and risk of enforcement measures are moved to those who integrate external services. This will change the incentive structure in such a way that joint-controllers will place a much higher value on data protection. To explore the practical implications of the legal framework, we analyse a number of examples taken from our earlier empirical work on the right of access to reflect on the newly emerging data responsibility infrastructure. We show that the coordination of responsibilities is complex in practice because many organisations do not have a clear overview of data flows, there are power imbalances between different actors, and personal data governance is often happening in separated specialised units
Thomas Eger, Marc Scheufen: The Economics of Open Access – On the Future of Academic Publishing
Get PDFExploring the Interfaces Between Big Data and Intellectual Property Law
Get PDFThis article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must also be considered. Exceptions for Text and Data Mining (TDM) are already in place in a number of legal systems and likely to emerge to allow the creation and use of corpora of literary and artistic works, such as texts and images. In the patent field, AI systems using Big Data corpora of patents and scientific literature can be used to expand patent applications. They can also be used to “guess” and disclose future incremental innovation. These developments pose serious doctrinal and normative challenges to the patent system and the incentives it creates in a number of areas, though data exclusivity regimes can fill certain gaps in patent protection for pharmaceutical and chemical products. Finally, trade secret law, in combination with contracts and technological protection measures, can protect data corpora and sets of correlations and insights generated by AI systems
Upload-Filters: Bypassing Classical Concepts of Censorship?
Get PDFProtecting human rights in the context of automated decision-making might not be limited to the relationship between intermediaries and their users. In fact, in order to adequately address human rights issues vis-à-vis social media platforms, we need to include the state as an actor too. In the German and European human rights frameworks, fundamental rights are in principle only applicable vertically, that is, between the state and the citizen. Where does that leave the right of freedom of expression when user-generated content is deleted by intermediaries on the basis of an agreement with a public authority? We must address this question in light of the use of artificial intelligence to moderate online speech and its (until now lacking) regulatory framework. When states create incentives for private actors to delete user-content pro-actively, is it still accurate to solely examine the relationship between platforms and users? Are we facing an expansion of collateral censorship? Is the usage of soft law instruments, such as codes of conduct, enhancing the protection of third parties or is it rather an opaque instrument that tends to be conflated with policy laundering? This paper aims to analyse the different layers of the usage of artificial intelligence by platforms, when it is triggered by a non-regulatory mode of governance. In light of the ongoing struggle in content moderation to balance between freedom of speech and other legal interests, it is necessary to analyse whether or not intelligent technologies could meet the requirements of freedom of speech and information to a sufficient degree
Evaluating the EC Private Data Sharing Principles: Setting a Mantra for Artificial Intelligence Nirvana?
Get PDFOn April 25, 2018, the European Commission (EC) published a series of communications related to data trading and artificial intelligence. One of them called “Towards a Common European Data Space”, came with a working document: “Guidance on Sharing Private Sector Data in the European Data Economy”. Both the Communication and the guidance introduce two different sets of general principles addressing data sharing, contractual best practices for business-to-business (B2B), and business-to-government (B2G) environments. On the same day, the EC also published a legislative proposal to review the Public Sector (PSI) Directive. These two simultaneous actions are part of a major package of measures, which aim to facilitate the creation of a common data space in the EU and foster European artificial intelligence development. This article focuses on the first action, the “Guidance on Sharing Private Sector Data in the European Economy”. First, because it is one of its kind. Second, although these principles do not qualify as soft law (lacking binding force but having legal effects) the Commission’s communications set action plans for future legislation. Third, because the ultimate goal of these principles is to boost European artificial intelligence (AI) development. However, do these principles set a viable legal framework for data sharing, or is this public policy tool merely a naïve expectation? Moreover, would these principles set a successful path toward a thriving European AI advancement? In this contribution, I try to sketch some answers to these and related questions
Access to Data in Connected Cars and the Recent Reform of the Motor Vehicle Type Approval Regulation
Get PDFThe need for regulatory solutions for access to in-vehicle data and resources of connected cars is one of the most controversial and unresolved policy issues. Last year the EU revised the Motor Vehicle Type Approval Regulation which already entailed a FRAND-like (fair, reasonable, and non-discriminatory) solution for the access to repair and maintenance information (RMI) to protect competition on the automotive aftermarkets. However, the transition to connected cars changes the technological conditions for this regulatory solution significantly. This paper analyzes the reform of the type approval regulation and shows that the regulatory solutions for access to RMI are thus far only very insufficiently capable of dealing with the challenges that come along with increased connectivity; e.g. with regard to the new remote diagnostic, repair and maintenance services. Therefore, an important finding of the paper is that the transition to connected cars will require further reform of the rules for the regulated access to RMI (especially with regard to data access, interoperability, and safety/security issues). However, our analysis also suggests that the basic approach of the current regulated access regime for RMI in the type approval regulation can also be a model for developing general solutions for the currently unsolved problems of access to in-vehicle data and resources in the ecosystem of connected driving
Different ‘Rules of the Game’ – Impact of National Court Systems on Patent Litigation in the EU and the Need for New Perspectives
Get PDF“It seems that the jurisdiction in which a case is litigated has a significant impact on its outcome,” professor Lemley has addressed the issue of forum shopping in the US and internationally, and claims that the venue of litigation defines the case outcome. Indeed, patent litigation is highly diverse especially in Europe. This is mainly derived from the following reasons – more globalised Innovation and R&D results in increased cross-border enforcement with some inherent challenges. In addition, the existence of different sets of rules and different national courts that hear the patent infringement and invalidity cases in each European state makes the litigation process quite complex. The country-specific characteristics of patent litigation are considered as an impediment for the development of harmonised EU patent law. Both patentees and alleged infringers, depending on the litigation venue, face legal uncertainties and encounter different outcomes even when the same patented invention is concerned. In light of these differences in national systems and judicial practices, the European Commission in its 2017 Communication Paper on ‘A balanced IP enforcement system responding to today’s societal challenges’, urged the Member States to set up effective mechanisms for IPR enforcement or to improve already existing systems. The article, looking at the specific examples of national judiciaries, outlines the differences between the enforcement mechanisms and case law across the Member States, it discusses the impact of the cross-border patent enforcement in the EU, and finally, it suggests possible solutions on an institutional and methodological level for European judiciary aiming at elimination of fragmented patent litigation and fostering an innovation eco-system in the EU
Fixing Copyright Reform: A Better Solution to Online Infringement
Get PDFThe newly-adopted Directive on Copyright in the Digital Single Market (DSMD) will fundamentally reshape EU copyright law. Among its most controversial offerings is Article 17, the so-called “value gap” provision, aimed at solving the alleged mismatch between the value that online content-sharing platforms extract from creative content and the revenue returned to the copyright-holders. This article argues that the new rules are misguided, misconceiving the real problems afflicting modern copyright. These are the proliferation of copyright infringement online in general – not only through content-sharing platforms – and the current piecemeal harmonisation of the rules on the liability of the intermediaries whose services are used to access and disseminate copyright-protected content. The current outdated and fragmented EU legal framework is ill-equipped to address these problems. Instead, it creates legal uncertainty for users and intermediaries in the online environment, while also failing to compensate creators fairly. The new rules will not change this. This article examines the pre-DSMD acquis and proposes a better solution than Article 17, consisting of two key changes: (a) the introduction of a harmonised EU framework for accessory liability for third party copyright infringement; and (b) the adoption of an alternative compensation system for right-holders covering non-commercial direct copyright use by the end-users of certain online platforms
Recht der öffentlichen Werkwiedergabe im harmonisierten Urheberrecht
Get PDFThis article analyses the criteria which the European Court applies to interpret the right of communication to the public. It shows that the criteria that determine the concepts “public” and “act of communication” are not adequate to outline this right. The concept “public” remains vague because the applied criteria do not make clear under which conditions an act of communication is directed to a private or public group. The concept “act of communication” is unspecific because it fails to distinguish the right of communication to the public from the distribution right. The jurisdiction of the European Court neglects to acknowledge that the granted exclusive rights of authors are not only rights to prohibit the use of their works, but primarily to authorize them. Authors should be able to control the exploitation of their works and negotiate a fair remuneration. It is to be hoped that the recently adopted Directive 2019/790 on copyright and related rights in the Digital Single Market, which harmonizes the European copyright contract law, will help to eliminate these deficits.
Dieser Beitrag unterzieht die Kriterien in der Rechtsprechung des EuGH zum Recht der öffentlichen Wiedergabe einer kritischen Analyse. Es soll gezeigt werden, dass die zum Begriff der Öffentlichkeit und der Wiedergabe entwickelten Einzelkriterien nicht geeignet sind, dieses Recht adäquat zu konturieren. Der Begriff der Öffentlichkeit bleibt unbestimmt, da die dafür entwickelten Kriterien keinen Beitrag dazu leisten, wann sich eine Wiedergabe an eine private oder öffentliche Gruppe richtet. Der Begriff der Wiedergabe ist konturlos, da er keine Abgrenzung zum Verbreitungsrecht liefert und vernachlässigt, dass auch die Verwertungsrechte des europäischen Rechts primär Erlaubnisrechte sind, die es dem Urheber ermöglichen sollen, die wirtschaftliche Verwertung seines geschützten Werkes zu steuern und eine angemessene Vergütung für dessen Nutzung aushandeln zu können. Es ist zu hoffen, dass die gerade verabschiedete neue Richtlinie 2019/790 über das Urheberrecht im digitalen Binnenmarkt, die erstmals das Urhebervertragsrecht harmonisiert, diese
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