JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Regulating Collective Management Organisations by Competition: An Incomplete Answer to the Licensing Problem?
Get PDFWhile the three functions of Collective Management Organisations - to licence use, monitor use, and to collect and distribute the revenue - have traditionally been accepted as a progression towards a natural (national) monopoly, digital exploitation of music may no longer lead to such a fate. The European Commission has challenged the traditional structures through reforms that increase the degree of competition. This paper asks whether the reforms have had the desired effect and shows, through qualitative research, that at least regarding the streaming of music, competition has not delivered. Part of the reason for this may be that the services required by the now competing CMOs have changed
The Role of the Principle of Effective Judicial Protection in Relation to Website Blocking Injunctions
Get PDFThe use of internet blocking to prevent access to illegal content requires the adoption of rigorous procedural safeguards. The necessity of such safeguards is even more pressing when this primarily public tool is transposed into the domain of private enforcement, for the purposes of supressing copyright and trademark infringements. Injunctions in the sphere of IP rights are governed by a net of interrelated EU legal provisions, contained in the Infosoc and the Enforcement directives (2001/29 and 2004/48), the E-Commerce directive (2000/31), and the EU net neutrality (open internet) rules (Regulation 2015/221). However, the core requirements stem from the application of the principle of proportionality and the search for a balance between competing fundamental rights. According to case law of the EU Court of Justice, the limitations upon injunctions in relation to IP rights are deduced in the process of balancing the substantive fundamental rights enshrined in the EU Charter: on the one hand, the right to the protection of intellectual property (Article 17(2)); and on the other, the freedom of expression and information (Article 11), the freedom to conduct business (Article 16), and the rights to privacy and to data protection (Articles 7 and 8). However, in relation to new types of injunctions potentially affecting the rights of multiple third parties, such as blocking injunctions, more weight should be given to procedural fundamental rights stemming from Article 47 of the Charter. This new perspective presents several advantages. Limitations resulting from Article 47 of the Charter constitute a stronger imperative than those deduced from the application of the principle of proportionality. To a large extent, they must be applied by the court of its own motion. In contrast to the principle of proportionality, fair trial requirements form part of European and national public policy provisions, potentially limiting mutual recognition of judicial decisions imposing injunctions. In the absence of harmonisation, the application of Article 47 of the Charter could therefore lead to the establishment of a minimum procedural standard, which can be invoked in order to achieve a certain degree of uniformity. This would be particularly important if blocking injunctions were to be used on an EU-wide basis
Standards for Duty of Care? Debating Intermediary Liability from a Sectoral Perspective
Get PDFThe EU’s current regulatory framework for the content liability of online intermediaries was created in 2000 with the E-Commerce Directive (ECD). Already in those days, during the run-up to the ECD, there was an intense debate regarding whether a light-touch approach or more stringent content liability regime for intermediaries would be the appropriate way forward. 20 years later the debate is essentially led from the same angle, but has predictably, increased in complexity as the internet makes massive strides in transforming the “offline” world. There are those who argue that a purely horizontal approach in regulating internet intermediaries, or online platforms, remains sufficient. Others think the time has come to reflect the disruptive entrances online platforms made in various sectors of society in more vertical changes affecting substantive law. The EU Commission sits on the fence it seems, however. In its communication on online platforms and the digital single market, the Commission announced last year that it would leave the current intermediary liability regime as it is for now “while implementing a sectoral, problem-driven approach to regulation”. This paper will map out and critically evaluate some current sectoral (read vertical) regulatory developments, which may affect intermediary liability. It will look at recent, more top-down approaches proposed by the EU (e.g. in copyright), as well as self-regulatory efforts. This will be compared to less publicized developments, which have notably taken place in the area of product and financial regulation affecting ecommerce, such as for example efforts to combat the sale of fake medicines, unsafe products online, or anti-money laundering compliance. In these areas, it is argued that regulatory authorities have more proactively engaged online platforms, both on a legislative and practical level. A special focus in this context will be on the role of reasonable duties of care which intermediaries may be required to apply in order to detect and prevent infringements. Could these more “grassroots” developments and the convergence of online and offline worlds provide blueprints to encourage the development of a new content liability framework based on sectoral duties of care
The Death of ‘No Monitoring Obligations’: A Story of Untameable Monsters
Get PDFIn imposing a strict liability regime for alleged copyright infringement occurring on YouTube, Justice Salomão of the Brazilian Superior Tribunal de Justiça stated that “if Google created an ‘untameable monster,’ it should be the only one charged with any disastrous consequences generated by the lack of control of the users of its websites.” In order to tame the monster, the Brazilian Superior Court had to impose monitoring obligations on Youtube; this was not an isolated case. Proactive monitoring and filtering found their way into the legal system as a privileged enforcement strategy through legislation, judicial decisions, and private ordering. In multiple jurisdictions, recent case law has imposed proactive monitoring obligations on intermediaries across the entire spectrum of intermediary liability subject matters. Legislative proposals have followed suit. As part of its Digital Single Market Strategy, the European Commission, would like to introduce filtering obligations for intermediaries in both copyright and AVMS legislations. Meanwhile, online platforms have already set up miscellaneous filtering schemes on a voluntary basis. In this paper, I suggest that we are witnessing the death of “no monitoring obligations,” a well-marked trend in intermediary liability policy that can be contextualized within the emergence of a broader move towards private enforcement online and intermediaries’ self-intervention. In addition, filtering and monitoring will be dealt almost exclusively through automatic infringement assessment systems. Due process and fundamental guarantees get mauled by algorithmic enforcement, which might finally slay “no monitoring obligations” and fundamental rights online, together with the untameable monster
The Power of Positive Thinking: Intermediary Liability and the Effective Enjoyment of the Right to Freedom of Expression
Get PDFThe Internet intermediary liability regime of Directive 2000/31/EC places hosting providers in the role of private gatekeepers. By providing an incentive in the form of a liability exemption, the EU legislature has ensured that hosting providers cooperate in the policing of online content. The current mechanism results in a situation where private entities are co-opted by the State to make decisions affecting the fundamental right to freedom of expression. According to the theory of positive obligations, States not only have to refrain from interfering with fundamental human rights, but also actively protect them, including in relations between private individuals. This paper analyses whether the doctrines of positive obligations (under the European Convention on Human Rights) and effective protection (under the Charter of Fundamental Rights of the European Union) may require the States to take additional measures to protect the right to freedom of expression from interference online. In particular, the paper analyses whether the Charter may require the EU legislature to take additional measures to ensure that the right to freedom of expression can be effectively enjoyed online, for example by introducing procedural safeguards in the legal framework regarding removal of online content
From Cyberpunk to Regulation – Digitised Memories as Personal and Sensitive Data within the EU Data Protection Law
Get PDFEvery new medium through which information can be communicated is likely to bring new challenges for the established data protection laws and paradigms. In the light of progressing research aimed at deciphering the human brain, this article seeks to analyse the General Data Protection Regulation’s ability to respond to the possible appearance of memory digitisation technology. To this end, the article draws on the fictional setting of a PC game entitled Remember Me, where such a technology was developed and embraced by the society. In an exploratory analysis, the GDPR’s definitions of personal and sensitive data are tested regarding their ability to remain “technology-neutral” in the face of an information technology capable of identifying individuals in unique and unprecedented ways. The article confirms the Regulation’s preliminary potential to accommodate the studied invention and proposes an interpretation of the corresponding articles of the GDPR, aimed at the adequate protection of data subjects
Does the Internet Limit Human Rights Protection? The Case of Revenge Porn
Get PDFWith the enhanced distribution possibilities internet brings, online revenge porn has gained spotlight, as reports show that the act can cause serious consequences for victims. Research and reported cases have led to criticism of states lack of legal and executive means to protect victims, not least due to jurisdictional issues. Framing the matter within states responsibility to protect rights under Article 8 of the ECHR, presents the issue of possible breach of human rights obligations of states bound by the Convention. A number of domestic calls for criminalisation of posting of revenge porn have been replied with arguments for freedom of expression, worries that such means will contribute to a fragmented internet, and of a slippery slope of state interference. Further, as revenge porn touches upon the balancing between competing human rights, the possible result of outsourcing human rights assessment to private entities becomes a point of discussion in the paper
Where is the Harm in a Privacy Violation? Calculating the Damages Afforded in Privacy Cases by the European Court of Human Rights
Get PDFIt has always been difficult to pinpoint what harm follows a privacy violation. What harm is done by someone entering your home without permission, or by the state eavesdropping on a telephone conversation when no property is stolen or information disclosed to third parties? The question is becoming ever more difficult to answer now that data gathering and processing initiatives have grown and are no longer focused on specific individuals, but on large groups or society as a whole. What specific harm is done by the NSA and other intelligence services gathering data on almost everyone or by the thousands of CCTV cameras registering the daily life of citizens on the corner of almost every street? There has been a longstanding debate within the literature regarding whether ‘dignitary’ or ‘immaterial’ harm should be protected under the right to privacy. Or should only harm that can be measured and quantified in monetary terms (economic harm) be taken into account? This article takes a descriptive and statistical approach to provide an insight into what types of damages are awarded, how they are calculated, and how the damages relate to the type of harm that is inflicted. It does so by analysing the damages awarded by the European Court of Human Rights with respect to privacy violations