JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Facilitating Access to Out-of-Commerce Works in the Digital Single Market – How to Make Pico della Mirandola’s Dream a Reality in the European Union
Get PDFRenaissance genius Pico della Mirandola dreamed of making all knowledge accessible in one place. The Proposal for a Directive on Copyright in the Digital Single Market could help Pico’s dream come true. The proposal, inter alia, aims at facilitating wider access to Europe’s cultural heritage through the introduction of a mechanism enabling the use of out-of-commerce works by cultural heritage institutions in the digital environment. After examining the key elements of this mechanism, this Opinion critically discusses the definition of the scope of search required for es-tablishing the out-of-commerce status of works, the requirement of the representative character of collective management organisations, and the non-application of the mechanism to third-country works. This Opinion also looks into the coordination between the CJEU’s Soulier decision and the Directive Proposal, with special emphasis on the sufficiency of general publicity measures, and the creation of the EUIPO’s out-of-commerce online database. In conclusion, while being supportive of the proposal and the idea of promoting more access to out-of-commerce works, this Opinion provides some suggestions for improving the text
Intellectual Property under the Scrutiny of Investor-State Tribunals: Legitimacy and New Challenges
Get PDFIn 2009, C.S. Gibson was suggesting that: “With this early coverage of intellectual property in BITs, it is perhaps surprising that there has yet to be a publicly reported decision concerning an IPR-centered investment dispute. Given the trajectory of the modern economy, however, in which foreign investments reflect an increasing concentration of intellectual capital invested in knowledge goods protected by IPRs, this could soon change” (Gibson, ‘A Look at the Compulsory License in Investment Arbitration’, 2009). A couple of years later, the first investment cases dealing with IP issues were made public. In this context, this paper first addresses the conditions that have to be fulfilled in order to bring intellectual property claims in investment arbitration, by touching upon the question of the definition of an investment in theory and in practice. It also tries to shed light on some of the implications of recent arbitral awards touching upon this interaction between intellectual property and investment protection, from a legal and regulatory perspective. On the other hand, the specific situation of the European Union is scrutinized, and in particular the project put forward by the European Commission to adapt the dispute settlement system for the protection of investments
A Recent Exploration of Accessing Public Sector Information: Theoretical and Legal Background, with a Special Focus on Hungary
Get PDFThe rapid technological advancements we are witnessing have undoubtedly had a great impact on several aspects regarding freedom of information, and the concept of increased governmental transparency on a global scale seems to be inevitable. But how can certain states, governments and societies cope with these new possibilities and challenges? Do state authorities worry about the weakening of their information monopoly? The author wishes to introduce ideas related to these questions through providing an examination of the theoretical and legal background and case law related to the concept of freedom of information; more specifically, the right to access public sector information at international and European Union levels, as well as the development and current situation in Hungary. As a result of the regulatory attitude and policies shown in recent years, the right to access public sector information has been weakened in Hungary, thus the specific aim of the article is to highlight certain amendments that have been made to related laws and examine them in light of the theoretical foundations, as well as their possible adverse effects exerted on the pursuit towards increased governmental transparency
A FRAND Regime for Dominant Digital Platforms
Get PDFDominant digital platforms are under increased scrutiny by regulators around the world, notably competition authorities. Much of the discussion focuses on market access and contestability. However, many doubt whether traditional competition law enforcement can, by itself, be an adequate solution to the challenges posed by dominant digital platforms. Instead, a broader regulatory solution could be devised to ensure effective competition and to provide access to critical platforms or access to data. On the premises that regulation is warranted, this paper considers whether a Fair, Reasonable and Non-Discriminatory (FRAND) access regime could be a solution to ensure effective competition, while maintaining the incentives of dominant platforms to innovate. The paper shows that, beyond the application of FRAND in the competition law context, the European Union institutions have consistently used the FRAND regime to ensure access to critical infrastructure or inputs. The FRAND regime has been applied in EU legislation such as standardisation, chemicals, electronic communications framework, public sector information, research framework, vehicles emissions, payment services, credit rating agencies and benchmark regulations. It has proved itself to be a flexible and pragmatic tool, able to apply to different market dynamics and bottlenecks. Drawing out the common elements of this European FRAND access regime, the paper considers how it could be applied as a regulatory solution for dominant digital platforms
Hard Drive Crash: An Examination of Liability for Self-Driving Vehicles
Get PDFThis analysis considers the potential impacts of completely self-driving vehicles on vehicular liability. This begins with examining how such vehicles might be treated under an evolution of the current liability system, and the potential results of attributing liability to an operator, the vehicle itself, different manufacturers, and a government entity. Discussion then turns to how liability might be altered prospectively in order to incentivize outcomes beneficial to both consumers and creators from a public policy perspective. This includes a proposal of how such a proposal might be structured. Focal points include public policy, social acceptance, and potential incidental problems raised
Kraus, Daniel/Obrist, Thierry/Hari, Olivier, Blockchains, Smart Contracts, Decentralised Autonomous Organisation and the Law
Get PDFThe Portability Regulation (Regulation (EU) 2017/1128): A Commentary on the Scope and Application
Get PDFSince 1 April 2018, the Portability Regulation prohibits geo-blocking of online content within the European Union. The regulation regulates the unrestricted access to (paid) subscribed online content of all European citizens, regardless of where they are present in EU territory. The presence must be “temporary”. Providers of fee-based online content are then obliged to guarantee their subscribers cross-border portability. A limitation of the access or the demand of additional fees is prohibited. The Portability Regulation does not apply directly to offers that are not or not directly liable to payment, such as media libraries. It is rather voluntary for these providers. Furthermore, the Portability Regulation also includes rules to minimize the user’s personal data collected in order to identify the Member State
Informing Consent: Giving Control Back to the Data Subject from a Behavioral Economics Perspective
Get PDFThe development of data privacy legislation in Europe and America has been highly influenced by the idea that individuals must maintain the autonomy to take decisions regarding the general purpose and uses of their personal data; an idea that has been generally instrumentalized with the mechanism of informed con-sent. Recently, both companies and researchers in the field have criticized this idea, arguing that with the new advances and technological progress, consent has lost importance due to the ubiquity of the data processing and the absence of real participation of the data subjects. This article seeks to take into account both points of view, by recognizing the importance of the autonomy of individuals to determine the destination of their personal data, but also by understanding the practical implications and the impossibilities derived from obtaining an informed consent from data subjects that are generally unfamiliar with the topic. Based on the analyses regarding the difficulties of obtaining an effective and informed consent, this contribution will examine how some of the bias and impasses stud-ied through the discipline of behavioral economics may help us to understand the current problems in relation to the way in which consent is requested and provid-ed by the data subjects. This contribution concludes by proposing alternatives that seek to overcome these biases and impasses with an easier provision of infor-mation of the data processing and the implementation of a data management and a value-oriented model, which would benefit the data subjects
“This Video is Unavailable”: Analyzing Copyright Takedown of User-Generated Content on YouTube
Get PDFWhat factors lead a copyright owner to request removal of potentially infringing user-generated content? So-called “notice-and-takedown” measures are provided in the United States under Section 512 of the U.S. Copyright Act (as amended by the Digital Millennium Copyright Act 1998) and enabled in the European Union under the Directive on Electronic Commerce (2000/31/EC). While the combination of limiting liability (“safe harbor”) and notice-and-takedown procedures was originally conceived as a means of balancing innovation with the interests of rightholders, there has been limited empirical study regarding their effects. This research investigates, for the first time, the factors that motivate takedown of user-generated content by copyright owners. We study takedowns within an original dataset of 1,839 YouTube music video parodies observed between January 2012 and December 2016. We find an overall rate of takedowns within the sample of 32.9% across the 4-year period. We use a Cox proportional hazards model to investigate propositions from rightholder groups about the factors that motivate takedowns: these include concerns about commercial substitution; artistic/moral concerns; cultural differences between firms; and YouTube uploader practices. The main finding is that policy concerns frequently raised by rightholders are not associated with statistically significant patterns of action. For example, the potential for reputational harm from parodic use does not appear to predict takedown behavior. Nor does commercial popularity of the original music track trigger a systematic response from rightholders. Instead, music genre and production values emerge as significant factors. We suggest that evolving policy on intermediary liability - for example with respect to imposing filtering systems (automatically ensuring “stay-down” of potentially infringing content) - should be carefully evaluated against evidence of actual behavior, which this study shows may differ materially from stated policy positions