JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Notice-and-Takedown Procedure under Greek Intellectual Property Law 4481/2017
Get PDFAfter two years of negotiations and several drafts, the provisions of the Directive 2014/26/EU on collective management of copyright and related rights were introduced into Greek legislation by the Law 4481/2017, which establishes a strict legal framework for the collective management organisations and places great emphasis on state control mechanisms. Additionally, Law 4481/2017 introduces a notice-and-takedown procedure as a sanction to the intermediaries (access providers or hosting service providers) and website owners for online violation of intellectual property and related rights. Although it is an attempt to swiftly resolve cases of violation through the internet, the unclear relation of this sanction system to the system laid down by the Law 2121/1993 on copyright and related rights creates several inconsistencies and legal issues. At the same time, the Committee on Internet Violations of Intellectual Property (CIVIP) established to implement the notice-and-takedown procedure lacks institutional integration in the public administration structure, a situation that undermines the effectiveness of its decisions and may annul the expected benefits of the new procedure in practice
Data as Counter-Performance: What Rights and Duties do Parties Have?
Get PDFArticle 3 para. 1 of the proposed Directive on certain aspects concerning contracts for the supply of digital content recognises that consumers may use their personal data as counter-performance in exchange for contents or services. This approach confirms a social practice, which may be observed everywhere in the digital environment. Accepting personal data as counter-performance in bilateral contracts intensifies the rights and duties of both parties. For the consumer, the proposed Directive clarifies that the data subject providing its personal data to the supplier shall have the same rights as in the case of a money consideration paid to the supplier. However, what are the duties of the consumer and what are the rights of the supplier? The proposed Directive does not address this issue. The article provides some initial answers based on German contract law
Data Portability - A Tale of Two Concepts
Get PDFArt. 20 of the General Data Protection Regulation (GDPR) introduces a new concept to European data protection law – the right to data portability. The rule seeks to empower the consumer, to foster the inter-operability of data, and to prevent lock-in effects on closed platforms. Upon request, data controllers are required to provide personal data to the data subject in a structured, commonly used and machine-readable format, which enables the data subject to transfer their personal data between controllers. However, Art. 20 GDPR leaves much room for interpretation, in particular with respect to the data covered, the scope of the exceptions and the requirement of inter-operability. The proposed Directive on certain aspects concerning contracts for the supply of digital content (DCD-proposal) takes matters a step further. Under the DCD-proposal, the supplier of digital content shall provide the consumer with technical means to retrieve all content provided by the consumer (not only personal data) and any other data produced or generated through the consumer’s use of the digital content. At the same time, the proposed provisions are stricter than Art. 20 GDPR: The data portability right under Art. 20 GDPR may be exercised at any point in time, whereas the right to content portability under the DCD-proposal only arises after the contract has been terminated following a rule in said directive. The paper highlights other circumstances which warrant a right to content portability and laments the lack of an exception to safeguard the rights and interest of third parties. Three case studies are included to illustrate how the portability rules in the GDPR and the proposed Digital Content Directive might work in practice. The paper closes with a synopsis showing the commonalities and differences of Art. 20 GDPR and the portability rules in the proposed Digital Content Directive
Is Data Protection Law Growing Teeth? The Current Lack of Sanctions in Data Protection Law and Administrative Fines under the GDPR
Get PDFThis article looks at the current lack of enforcement and sanctions in European Data Protection Law with a particular focus on administrative fines. It identifies reasons for the existing deficits in European Data Protection Law and analyses the potential of the new rules of the General Data Protection Regulation (GDPR) to compensate for those deficits. The article argues that the practical application of the new rules and the coordination of Data Protection Authorities (DPAs) in all member states of the EU are the key to more efficient sanctioning and enforcement through administrative fines
Development of a Secondary Market for E-books: The Case of Amazon
Get PDFThe justification of applying the exhaustion doctrine to intangible copies of copyright protected works is widely discussed in scholarly circles. The discussion mainly concerns the relevant provisions of the international treaties and rationale of the exhaustion doctrine under EU law. However, little attention is paid to the question regarding how the potential outcome is comparable to the one exhaustion brings in the analogue world. This article goes beyond the theoretical legal discussion and presents a case study of e-books disseminated through Amazon. The authors analyse the legal, technological and organisational challenges of creating a secondary market. In line with the identified challenges, this paper presents two scenarios based on the particular circumstances observed at the Amazon distribution solutions. The first presupposes the creation of a limited secondary market within Amazon. The second enables a broad secondary market of e-books purchased through different channels, including Amazon. The two scenarios could potentially be combined to achieve a secondary market of e-books in a controlled manner. This would allow vendors to keep nearly the same degree of control over distributed copies while serving consumer interests and creating the Digital Single Market
Internet Intermediary Liability Reloaded – The New German Act on Responsibility of Social Networks and its (In-) Compatibility with European Law
Get PDFFake News and hate speech are at the centre of discussions at least since Donald Trump won the U.S. elections in 2016. Politicians around the world fear the influence of social networks and distribution of fake news that will foster populism as well as blur the lines to traditional media. Thus, after having tried self-regulatory mechanisms which according to the belief of the German Government turned out to be unsatisfactory the German Government brought in a new bill called „Netzwerkdurchsetzungsgesetz“ which should impose on social networks fines up to 50 Mio Euro if they do not comply with obligations to remove illicit content. The article deals with the structure of the act and its compatibility with European law, in particular the E-Commerce-Directive, based upon a legal expertise commissioned by the German Association of Telecommunication and Internet Industry
Non-Commercial Quotation and Freedom of Panorama: Useful and Lawful?
Get PDFThis contribution seeks to assess both the practical implications and lawfulness of national copyright exceptions that – lacking a corresponding provision in Article 5 of Directive 2001/29 (the InfoSoc Directive) – envisage that the only permitted use of a copyright work for the sake of the applicability of a certain exception is a non-commercial one.
By referring to different national exceptions allowing quotation and freedom of panorama as case studies, the paper shows some of the shortcomings deriving from different approaches to the same permitted uses of copyright works across the EU, as well as the resulting (negative) impact on the very objective underlying adoption of the InfoSoc Directive: harmonization. This contribution concludes that – in general terms – diverging approaches to copyright exceptions, including limiting the availability of certain exceptions to non-commercial uses, may be both impractical and contrary to the system established by the InfoSoc Directive
Editorial: Special Issue on Law and Governance in the Digital Era: Data Protection and Beyond
Get PDFRegulating Online Content through the Internet Architecture: The Case of ICANN’s new gTLDs
Get PDFThe process introduced by the Internet Corporation for Assigned Names and Numbers (ICANN) to assess and allocate new generic top-level domains (gTLDs) offers a vehicle for content regulation at two levels. First, regarding the gTLD itself, objection procedures were set up to allow third parties to challenge an applied-for gTLD deemed to be contrary to “general principles of international law for morality and public order” or detrimental to broadly defined communities. The real target of these objections managed by the International Chamber of Commerce was not the gTLD itself, but the potentially controversial content that might be published under it. Second, these preventive measures were coupled with a strengthened anti-abuse policy for new gTLDs. ICANN amended its standard agreements with domain name registries and registrars to impose additional safeguards, compliance with “all applicable laws”, and remedies such as suspension of the domain name, which is a powerful tool to deny access to online content. Surprisingly these amendments were not discussed under ICANN’s consensus policy development process but added at the request of governments after the launch of the New gTLDs Program. These provisions, if actually enforced by ICANN, could lead to content policing by private entities without any measure to ensure due consideration of domain name holders’ freedom of expression
An Innovative Legal Approach to Regulating Digital Content Contracts in the EU
Get PDFUnifying laws between States to better facilitate cross-border transactions is not a new concept. Within the EU, such unification has generally been achieved by harmonising Directives and Regulations. However, legislative techniques to govern digital content transactions are still in their infancy; it is likely that any harmonising instrument would be based upon pre-existing legislation that could be refined to better serve its purpose. States themselves would likely attempt to formulate innovative legislative proposals to give contracts formulated under their jurisdiction a competitive advantage. But, once harmonization occurs, attempts to innovate in contract law for individual gain would cease. Analysing the functionality of mutual learning legislative exercises can lead to the conclusion that allowing experimentation, whilst establishing a separate unified optional framework, may well be the most practical way to continue to develop more efficient contractual rules and obligations, that may eventually be proliferated throughout transnational markets. Separating the legislative efforts between national law and an optional law that governs cross-border contracts, overseen by a centralized body attempting to collate the most beneficial aspects of digital content legislation across the breadth of the EU, would be a more progressive system of digital content contract regulation