JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Privacy in the Post-NSA Era: Time for a Fundamental Revision?
Get PDFBig Brother Watch and others have filed a complaint against the United Kingdom under the European Convention on Human Rights about a violation of Article 8, the right to privacy. It regards the NSA affair and UK-based surveillance activities operated by secret services. The question is whether it will be declared admissible and, if so, whether the European Court of Human Rights will find a violation. This article discusses three possible challenges for these types of complaints and analyses whether the current privacy paradigm is still adequate in view of the development known as Big Data
Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers
Get PDFInternet connectivity providers have been ordered to block access to websites facilitating copyright infringement in various EU countries.In this paper, the proportionality of these enforcement measures is analysed. After addressing preliminary questions, the recent ECJ ruling UPC Telekabel Wien (C-314/12) and then case law from all Member States are examined from the perspective of proportionality. Finally, five criteria are submitted for proportionality analysis, and a proportionality evaluation is provided. The major observation is that the underlying goal of copyright enforcement has implications on how the scale tilts. In particular, ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is considered legitimate. On the other hand, if the goal is to decrease the impact of infringement, higher efficiency and economically quantifiable results may be require
UsedSoft and the Big Bang Theory: Is the e-Exhaustion Meteor about to Strike?
Get PDFSince the UsedSoft ruling of the CJEU in 2012, there has been the distinct feeling that – like the big bang - UsedSoft signals the start of a new beginning. As we enter this brave new world, the Copyright Directive will be read anew: misalignments in the treatment of physical and digital content will be resolved; accessibility and affordability for consumers will be heightened; and lock-in will be reduced as e-exhaustion takes hold. With UsedSoft as a precedent, the Court can do nothing but keep expanding its own ruling. For big bang theorists, it is only a matter of time until the digital first sale meteor strikes non-software downloads also.
This paper looks at whether the UsedSoft ruling could indeed be the beginning of a wider doctrine of e-exhaustion, or if it is simply a one-shot comet restrained by provisions of the Computer Program Directive on which it was based. Fighting the latter corner, we have the strict word of the law; in the UsedSoft ruling, the Court appears to willingly bypass the international legal framework of the WCT. As far as expansion goes, the Copyright Directive was conceived specifically to implement the WCT, thus the legislative intent is clear. The Court would not, surely, invoke its modicum of creativity there also...
With perhaps undue haste in a digital market of many unknowns, it seems this might well be the case. Provoking the big bang theory of e-exhaustion, the UsedSoft ruling can be read as distinctly purposive, but rather than having copyright norms in mind, the standard for the Court is the same free movement rules that underpin the exhaustion doctrine in the physical world. With an endowed sense of principled equivalence, the Court clearly wishes the tangible and intangible rules to be aligned. Against the backdrop of the European internal market, perhaps few legislative instruments would staunchly stand in its way. With firm objectives in mind, the UsedSoft ruling could be a rather disruptive meteor indeed
Missing Links in the Proposed EU Data Protection Regulation and Cloud Computing Scenarios: A Brief Overview
Get PDFApplying location-focused data protection law within the context of a location-agnostic cloud computing framework is fraught with difficulties. While the Proposed EU Data Protection Regulation has introduced a lot of changes to the current data protection framework, the complexities of data processing in the cloud involve various layers and intermediaries of actors that have not been properly addressed. This leaves some gaps in the regulation when analyzed in cloud scenarios. This paper gives a brief overview of the relevant provisions of the regulation that will have an impact on cloud transactions and addresses the missing links. It is hoped that these loopholes will be reconsidered before the final version of the law is passed in order to avoid unintended consequences
Evaluation of the Role of Access Providers Discussion of Dutch Pirate Bay Case Law and Introducing Principles on Directness, Effectiveness, Costs, Relevance, and Time
Get PDFInternet service providers (ISPs) play a pivotal role in contemporary society because they provide access to the Internet. The primary task of ISPs – to blindly transfer information across the network – has recently come under pressure, as has their status as neutral third parties. Both the public and the private sector have started to require ISPs to interfere with the content placed and transferred on the Internet as well as access to it for a variety of purposes, including the fight against cybercrime, digital piracy, child pornography, etc. This expanding list necessitates a critical assessment of the role of ISPs. This paper analyses the role of the access provider. Particular attention is paid to Dutch case law, in which access providers were forced to block The Pirate Bay. After analysing the position of ISPs, we will define principles that can guide the decisions of ISPs whether to take action after a request to block access based on directness, effectiveness, costs, relevance and time
Swiss Patent Jurisprudence 2012
Get PDFThe new Swiss Federal Patent Court, with nationwide first-instance jurisdiction over all civil patent matters, has been operating since 1 January 2012. This article reviews and contextualizes the most important patent cases the Swiss Federal Patent Court and the Swiss Federal Supreme Court. It concludes that the revamped Swiss patent litigation system has the potential of turning Switzerland into a competitive venue for the adjudication of patent matters in Europe
Das Verhältnis zwischen Urheberrecht und Wissenschaft: Auf die Perspektive kommt es an!
Get PDFSince the advent of digital network technologies, copyright has become a highly contentious political matter. This is also true in the area of scientific works and the scholarly communication system in general. However, whether the relationship between copyright and scholarship is considered problematic and which, if any, alternative approaches to the current system are preferred, depends upon the perspective. In that regard, the article distinguishes a copyright perspective from a perspective that takes as its starting point the philosophy and sociology of science. The article shows that only the latter, scientific perspective is capable of explaining and adequately regulating the current, fundamental change taking place in the scholarly communication system
Bittorent Loses Again: A Recent Lithuanian BitTorrent Case and What It Means for the Construction of the E-commerce Directive
Get PDFThis article first discusses a recent Lithuanian BitTorrent case, Linkomanija, with its shortcomings and perspectives. It then compares the outcomes of the Lithuanian case with recent court practice in Scandinavian countries (the Swedish Pirate Bay and Finnish Finreactor cases). Finally, it poses some questions as to whether BitTorrent sites should be qualified as hosting services under Article 14 of the EU E-commerce Directive (2000/31/EC) and whether the application of the limited liability standard, as developed by the Court of Justice of the European Union, would be reasonable for BitTorrent file-sharing services in general
Not for Designers: On the Inadequacies of EU Design Law and How to Fix It
Get PDFDesign rights represent an interesting example of how the EU legislature has successfully regulated an otherwise heterogeneous field of law. Yet this type of protection is not for all. The tools created by EU intervention have been drafted paying much more attention to the industry sector rather than to designers themselves. In particular, modern, digitally based, individual or small-sized, 3D printing, open designers and their needs are largely neglected by such legislation. There is obviously nothing wrong in drafting legal tools around the needs of an industrial sector with an important role in the EU economy, on the contrary, this is a legitimate and good decision of industrial policy. However, good legislation should be fair, balanced, and (technologically) neutral in order to offer suitable solutions to all the players in the market, and all the citizens in the society, without discriminating the smallest or the newest: the cost would be to stifle innovation. The use of printing machinery to manufacture physical objects created digitally thanks to computer programs such as Computer-Aided Design (CAD) software has been in place for quite a few years, and it is actually the standard in many industrial fields, from aeronautics to home furniture. The change in recent years that has the potential to be a paradigm-shifting factor is a combination between the opularization of such technologies (price, size, usability, quality) and the diffusion of a culture based on access to and reuse of knowledge. We will call this blend Open Design. It is probably still too early, however, to say whether 3D printing will be used in the future to refer to a major event in human history, or instead will be relegated to a lonely Wikipedia entry similarly to ³Betamax² (copyright scholars are familiar with it for other reasons). It is not too early, however, to develop a legal analysis that will hopefully contribute to clarifying the major issues found in current EU design law structure, why many modern open designers will probably find better protection in copyright, and whether they can successfully rely on open licenses to achieve their goals. With regard to the latter point, we will use Creative Commons (CC) licenses to test our hypothesis due to their unique characteristic to be modular, i.e. to have different license elements (clauses) that licensors can choose in order to adapt the license to their own needs.