JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
Not a member yet
417 research outputs found
Sort by
Sponsored Blog Content: What do the Regulations Say? And what do Bloggers Say?
Get PDFInfluencer marketing – the use of opinion leaders such as bloggers with many followers and readers to disseminate product messages – is gaining advertisers’ interest. This paper presents the law and self-regulative provisions concerning blog advertising in both Europe and the US and documents the actual practice of disclosing blog advertising: whether and if so how, bloggers disclose influences from advertisers, and how these disclosures align with the regulations in place. The Federal Trade Commission Act and related guides in the US, and self-regulative provisions in Europe urge advertisers and endorsers, such as bloggers, to disclose any commercial relationship. These disclosures should be clear and conspicuous because advertising to consumers should be recognizable as such. Although advertisers increasingly encourage bloggers to promote products, it is unclear whether bloggers comply with disclosure requirements. To test compliance with disclosure requirements, we performed a content analysis of 200 blog posts drawn from the top-20-ranked sites in the Netherlands and the United States. We found that 65% of the posts mention brands and products. Yet, only 15% of the blog posts provided some commercial sponsorship disclosure. To determine whether posts mentioning brands were organic, unsponsored endorsements, we made repeated attempts to contact authors. Of those that responded, most claimed that their writing was not sponsored, but a small number received remuneration and did not disclose it. Furthermore, among the disclosing bloggers, we found regular problems in their sponsorship disclosures: many only state ‘sponsored’ or ‘affiliated link’; only 1/3 stated the name of the actual sponsor; most require the users to “scroll down,”; and most are in the same font as ordinary text. Our findings raise several regulatory issues; namely, the need for more concrete guidance on disclosure format, and it highlights the difficulty of monitoring compliance with the existing provisions. In so doing, our findings also provide important input for the European Commission’s Regulatory Fitness and Performance exercise, which tackles, among others the Unfair Commercial Practice Directive
Open Science and Public Sector Information – Reconsidering the exemption for educational and research establishments under the Directive on re-use of public sector information
Get PDFThe article discusses the possibilities of including public research and educational establishments within the scope of the Directive regulating the re-use of public sector information (2003/98/EC – ‘PSI Directive’). It subsequently evaluates the legal consequences of such an inclusion. Focusing on scientific information, the analysis connects the long-standing debates about open access and open educa-tion to open government data. Their common driving force is the call for a wide-spread dissemination of publicly funded information. However, the regulatory standard set out by the PSI Directive is characterized by considerable legal uncer-tainty. Therefore, it is difficult to derive robust assumptions that can form the ba-sis for predicting the effects of extending the PSI Directive’s scope to research in-formation. A potential revision of the PSI Directive should reduce this uncertain-ty. Moreover, PSI regulation must account for the specific incentives linked to the creation and dissemination of research results. This seems of primary importance for public-private research collaborations because there is a potential risk that a full application of the PSI Directive might unduly affect incentives for such col-laborations
The EU Directive on the Protection of Trade Secrets and its Relation to Current Provisions in Germany
Get PDFIn June 2018, the deadline for the implementation of a new act reforming the trade secret law expired. This contribution examines the underlying EU Directive on the protection of trade secrets (Directive (EU) 2016/943, hereinafter “Directive”) and outlines the differences compared to the current legislation concerning trade secrets in Germany. Furthermore, the legal nature of trade secrets and possible consequences for the industrial practice are illustrated
Against the Dehumanisation of Decision-Making – Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information
Get PDFThis work presents ten arguments against algorithmic decision-making. These re-volve around the concepts of ubiquitous discretionary interpretation, holistic intu-ition, algorithmic bias, the three black boxes, psychology of conformity, power of sanctions, civilising force of hypocrisy, pluralism, empathy, and technocracy. Nowadays algorithms can decide if one can get a loan, is allowed to cross a bor-der, or must go to prison. Artificial intelligence techniques (natural language pro-cessing and machine learning in the first place) enable private and public deci-sion-makers to analyse big data in order to build profiles, which are used to make decisions in an automated way. The lack of transparency of the algorithmic deci-sion-making process does not stem merely from the characteristics of the relevant techniques used, which can make it impossible to access the rationale of the deci-sion. It depends also on the abuse of and overlap between intellectual property rights (the “legal black box”). In the US, nearly half a million patented inventions concern algorithms; more than 67% of the algorithm-related patents were issued over the last ten years and the trend is increasing. To counter the increased mo-nopolisation of algorithms by means of intellectual property rights (with trade se-crets leading the way), this paper presents three legal routes that enable citizens to ‘open’ the algorithms. First, copyright and patent exceptions, as well as trade se-crets are discussed. Second, the EU General Data Protection Regulation is critical-ly assessed. In principle, data controllers are not allowed to use algorithms to take decisions that have legal effects on the data subject’s life or similarly significantly affect them. However, when they are allowed to do so, the data subject still has the right to obtain human intervention, to express their point of view, as well as to contest the decision. Additionally, the data controller shall provide meaningful in-formation about the logic involved in the algorithmic decision. Third, this paper critically analyses the first known case of a court using the access right under the freedom of information regime to grant an injunction to release the source code of the computer program that implements an algorithm. Only an integrated ap-proach – which takes into account intellectual property, data protection, and free-dom of information – may provide the citizen affected by an algorithmic decision of an effective remedy as required by the Charter of Fundamental Rights of the EU and the European Convention on Human Rights
The Challenges Faced by the Extraterritorial Scope of the General Data Protection Regulation
Get PDFThe General Data Protection Regulation (GDPR) imposes a significant burden of compliance on overseas businesses which process personal data of EU individuals. An impressive number of articles warns about the new risks incurred by data processors around the world; be they one of the Internet giants, or a non-EU company which dared to offer goods to EU consumers, or that had the idea to use cookies on its website to track EU consumers. However, does the EU actually have the necessary means to ensure that the rules are followed by all? And if not, is the EU equipped to enforce compliance? Those are legitimate questions in the light of the context in which the EU has extended its jurisdiction. Not only has it been decided unilaterally, but such rules are to be enforced in cyberspace, in an international context, and on operators, which may not have any physical presence in the EU. One may think that processors have no reason to panic, there is little chance that the GDPR enforcers will find them and force them to comply under the threat of fines. Yet, internet users witness an undeniable wave of change in the terms of the use and processing of data on a majority of websites. Does this phenomenon reveal a real power of enforcement on the EU side? This work attempts to answer this question by analysing two factors which greatly impact the efficiency of extraterritorial claims. First, the legitimacy of the extraterritorial claim. Through the application of international law principles, it will be seen that the extraterritorial claim of the EU, despite its broadness, is rather legitimate and even part of a shared tendency among jurisdictions around the world to extend the reach of data protection laws. Second, the enforcement tools of the regulation. This work reveals that the EU may benefit from some direct enforcement tools such as representatives and international cooperation, but also, and more importantly, through indirect means. In particular, the EU may rely on the risk of reputational damage, the incentives to self-compliance, and the rules on data transfers to third countries
European Union Claims of Jurisdiction over the Internet – an Analysis of Three Recent Key Developments
Get PDFThe topic of Internet jurisdiction is gaining a considerable amount of attention at the moment. Yet, we are seemingly still a long way from solutions. This article builds on the notion that we are presently in an era of jurisdictional “hyper-regulation” characterised by complexity and a real risk of Internet users being exposed to laws in relation to which they have no realistic means of ensuring compliance. Drawing upon a framework consisting of three jurisdictional core principles, the article seeks to examine whether three recent key developments in EU law contribute to hyper-regulation. Those three developments are: (1) Article 3 of the General Data Protection Regulation (GDPR) which outlines the Regulations “territorial scope”; (2) The combined effect of the proposed e-evidence Directive and the proposed e-evidence Regulation; and (3) the Court of Justice of the European Union (CJEU) decision in Bolagsupplysningen OÜ. The article also provides an analysis of recent trends and draws some conclusions as to how we may best move forward in this field
‘We want Artists to be Fully and Fairly Paid for their Work’: Discourses on Fairness in the Neoliberal European Copyright Reform
Get PDFElaborating on the President of the European Commission Jean-Claude Juncker’s agenda, EC Vice-President and Commissioner for the Digital Single Market Andrus Ansip wrote on his blog on 18th November 2015, “we want artists to be fully and fairly paid for their work”—the phrase that serves as the title to this article and that has reappeared in different guises throughout the process of EU copyright reform. By examining a case study on the Fair Internet for Performers Campaign—a campaign advanced in the context of the ongoing European copyright reform—I shed light on the powerful discourses on fairness that have dominated and shaped the reform process. Using discourse analysis, I found the concept of fairness to be mostly dependent on the stakeholders’ relative bargaining power and framed by hegemonic neo-liberal thought. Drawing on interviews, fieldwork, media, and the documentation produced by the European Union’s government throughout the process, the case study also illustrates the contested nature of copyright reform today