JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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"Privacy by Design": Nice-to-have or a Necessary Principle of Data Protection Law?
Get PDFPrivacy by Design is a term that was coined in 1997 by the Canadian privacy expert and Commissioner for Ontario, Dr Ann Cavoukin, but one that has recently been receiving more attention in terms of its inclusion as a positive requirement into EU, US and Canadian data protection frameworks. This paper argues that the right to personal privacy is a fundamental right that deserves utmost protection by society and law. Taking privacy into consideration at the design stage of a system may today be an implicit requirement of Canadian federal and EU legislation, but any such mention is not sufficiently concrete to protect privacy rights with respect to contemporary technology. Effective privacy legislation ought to include an explicit privacy-by- design requirement, including mandating specific technological requirements for those technologies that have the most privacy-intrusive potential. This paper discusses three such applications and how privacy considerations were applied at the design stages. The recent proposal to amend the EU data protection framework includes an explicit privacy-by- design requirement and presents a viable benchmark that Canadian lawmakers would be well-advised to take into consideration
Injunctions against Innocent Third Parties: The Case of Website Blocking
Get PDFThe paper discusses the phenomenon of injunctions against third parties that are innocent from the tort law perspective. One such type of injunction, website blocking, is currently appearing in the spotlight around various European jurisdictions as a consequence of the implementation of Article 8(3) of the Information Society Directive and Article 11 of the Enforcement Directive. Website-blocking injunctions are used in this paper only as a plastic and perhaps also canonical example of the paradigmatic shift we are facing: the shift from tort-law-centric injunctions to in rem injunctions. The author of this paper maintains that the theoretical framework for the latter injunctions is not in the law of civil wrongs, but in an old Roman law concept of ‘in rem actions’ (actio in rem negatoria). Thus the term ‘in rem injunctions’ is coined to describe this paradigm of injunctions. Besides the theoretical foundations, this paper explains how a system of injunctions against innocent third parties fits into the private law regulation of negative externalities of online technology and explores the expected dangers of derailing injunctions from the tracks of tort law. The author’s PhD project – the important question of the justification of an extension of the intellectual property entitlements by the in rem paradigm, along with its limits or other solutions – is left out from the paper
Breathing Space for Cloud-Based Business Models
Get PDFCloud-based services keep forming, changing and evaporating like clouds in the sky. They range from personal storage space for films and music to social media and user-generated content platforms. The copyright issues raised by these platforms seem as numerous as the liquid droplets and frozen crystals constituting clouds in the atmosphere of our planet. As providers of cloud-based services may seek to avoid dependence on creative industries and collecting societies, one of these questions concerns the breathing space that copyright law offers outside the realm of exclusive rights. Which limitations of protection can serve as a basis for the development of new business models? Which safe harbours may be invoked to avoid secondary liability for copyright infringement? Which obligations may result from injunctions sought by copyright owners? After outlining relevant cloud services (section 1) and identifying the competing interests involved (section 2), the inquiry will address these influence factors – limitations, safe harbours and injunctions (section 3). The analysis will yield the insight that the most effective protection of copyright in the cloud is likely to result from acceptance of a compromise solution that, instead of insisting on the power to prohibit unauthorised use, leaves room for the interests of users and the business models of platform providers (concluding section 4)
The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies
Get PDFThis article provides a legal and economic analysis of private copying levies in the EU, against the background of the Copyright Directive (2001/29), a number of recent rulings by the European Court of Justice and the recommendations presented by mediator Vitorino earlier this year. It concludes that notwithstanding these rulings and recommendations, there remains a lack of concordance on the relevance of contractual stipulations and digital rights management technologies (DRM) for setting levies, and the concept of harm. While Mr Vitorino and AG Sharpston (in the Opinion preceding VG Wort v. Kyocera) use different lines of reasoning to argue that levies raised on authorised copies would lead to double payment, the Court of Justice’s decision in VG Wort v. Kyocera seems to conclude that such copies should nonetheless be levied. If levies are to provide fair compensation for harm resulting from acts of private copying, economic analysis suggests one should distinguish between various kinds of private copies and take account of the extent to which the value said copies have for consumers can be priced into the purchase. Given the availability of DRM (including technical protection measures), the possibility of such indirect appropriation leads to the conclusion that the harm from most kinds of private copies is de minimis and gives no cause for levies. The user value of copies from unauthorised sources (e.g. from torrent networks or cyber lockers), on the other hand, cannot be appropriated indirectly by rightholders. It is, however, an open question in references for preliminary rulings pending at the Court of Justice whether these copies are included in the scope of the private copying exception or limitation and can thus be levied for. If they are not, as currently happens in several EU Member States, legal and economic analysis leads to the conclusion that the scope of private copying acts giving rise to harm susceptible of justifying levies is gradually diminishing
Christophe Geiger (ed.), Criminal Enforcement of Intellectual Property. A Handbook of Contemporary Research
Get PDFEditor\u27s Pick
No full textIn this new column, which from now on shall appear at regular intervals, the editors of JIPITEC would like to present to their readers monographs that in their mind are either outstanding or are worth being mentioned and recommended to the interested reader. Each individual editor is responsible for his or her own choice and each text reflects personal interests and preferences rather than an editorial policy
Facebook’s Real Name Policy: Bye-Bye, Max Mustermann?
Get PDFFacebook requires all members to use their real names and email addresses when joining the social network. Not only does the policy seem to be difficult to enforce (as the prevalence of accounts with people’s pets or fake names suggests), but it may also interfere with European (and, in particular, German) data protection laws. A German Data Protection Commissioner recently took action and ordered that Facebook permit pseudonymous accounts as its current anti-pseudonymous policy violates § 13 VI of the German Telemedia Act. This provision requires telemedia providers to allow for an anonymous or pseudonymous use of services insofar as this is reasonable and technically feasible. Irrespective of whether the pseudonymous use of Facebook is reasonable, the case can be narrowed down to one single question: Does German data protection law apply to Facebook? In that respect, this paper analyses the current Facebook dispute, in particular in relation to who controls the processing of personal data of Facebook users in Germany. It also briefly discusses whether a real name policy really presents a fix for anti-normative and anti-social behaviour on the Internet
Patentability and Scope of Protection for DNA Sequence
Get PDFSince the mapping of the human genome and the technical innovations in the field of biotechnology, patent law has gone through great controversies. Protection is required for an investor to make an investment but how broad should the given protection be? Whether the invention is a mi- cro-organism capable of dissolving crude oil, or the gene of a soya plant, the genetic engineering required for their production entails vast amounts of capi- tal. The policy in that respect is tailored by legislative acts and judicial decisions, ensuring a fair balance be- tween the interests of patent right holders and third parties. However, the policy differs from jurisdiction to jurisdiction, thus creating inconsistencies with re- gards to the given protection to the same invention, and as a result this could deter innovation and pro- mote stagnation.
The most active actors shaping the patent policy on an international level are the patent offices of the United States of America, Japan and the European Patent Organization. These three patent offices have set up a cooperation programme in order to promote and improve efficiency with regards to their patent policies on a global scale. However, recent judicial de- velopments have shown that the policy in respect to the field of biotechnology differs between the patent regimes of the United States of America and the two- layer system of the European Patent Organisation/ the European Union
Online Sexual Harassment: Issues & Solutions
Get PDFThis paper addresses and analyses the growing threat of sexual harassment in cyberspace. Digital transactions and communications have, over the past decade, been increasingly transpiring at an increasingly accelerated rate. This non-linear progression has generated a myriad of risks associated with the utilization of information and communication technologies (ICTs) in cyberspace communications, amongst the most important of which is: the threat of sexual harassment. On such account, this paper aims to provide an overview of the issues and risks pertinent to sexual harassment and seeks to offer some solutions based on the necessity of pursuing a tri-fold policy encompassing strategic and regulatory, technical, and cultural approaches