JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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A Model Framework for publishing Grey Literature in Open Access
Get PDFIn this paper we present a model framework for placing grey literature documents into an online, publicly accessible repository, providing an effective mechanism to avoid liability for a grey literature repository operator. ‘Grey literature’ is a term (originating in library and information science) referring to documents that are not published commercially, e.g. research and technical reports, governmental documents and working papers. Despite their undeniable value (usually derived from their originality and from containing recent and up-to-date information), these documents are often difficult to access. This creates an obvious problem of not providing the public with valuable information associated with the necessity to fund the production of particular information that already exists and could have been easily offered to the public. One of many possible solutions to make grey literature available seems to be the establishment of centralised on-line repositories of grey literature supported (or maintained) by official agencies. Putting aside the most important issue of financing such an effort, the agency has to face many difficult legal issues, among others. As the task of the agency would be to actively seek the documents to be placed into the repository, it also has to deal with several legal issues. In this paper we try to identify and discuss these legal problems and design a framework for obtaining GL documents from various subjects in such a way that the risk of copyright infringement would be minimised. The proposed framework is based on the practical experience gained from the efforts of the National Library of Technology (of Czech Republic) to establish the National Repository of Grey Literature
Copyright Exhaustion Rationales and Used Software: A Law and Economics Approach to Oracle v. UsedSoft
Get PDFThis article aims to provide courts and policymakers with an analytical framework that, building upon the traditional rationales of IP exhaustion doctrine, identifies factors which advocate for a modulation or flexibilization of the role of exhaustion in copyright law. Factors include (i) the personal features of acquirers of copies of copyrighted works, distinguishing between consumers and commercial users; (ii) whether post-sale restrictions have been adequately communicated to acquirers and have been agreed in the contract or license; (iii) the degree of complexity of the acquired goods and their prospects of productive uses and interoperability; (iv) the role of other exclusive rights in providing rightholders with indirect control over uses of the copies in the aftermarket; (v) the impact of post-sale restraints in preventing opportunism in long-term contracts and in reducing deadweight losses created by IP pricing; and (vi) the temporal scope of post-sale restraints. After setting out this analytical framework, the ECJ Judgement in Oracle v. UsedSoft is discussed
On the Role of Copyright Protection in the Information Society
Get PDFIn January 2012, Poland witnessed massive protests, both in the streets and on the Internet, opposing ratification of the Anti-Counterfeiting Trade Agreement, which triggered a wave of strong anti-ACTA movements across Europe. In Poland, these protests had further far-reaching consequences, as they not only changed the initial position of the government on the controversial treaty but also actually started a public debate on the role of copyright law in the information society. Moreover, as a result of these events the Polish Ministry for Administration and Digitisation launched a round table, gathering various stakeholders to negotiate a potential compromise with regard to copyright law that would satisfy conflicting interests of various actors.
This contribution will focus on a description of this massive resentment towards ACTA and a discussion of its potential reasons. Furthermore, the mechanisms that led to the extraordinary influence of the anti-ACTA movement on the governmental decisions in Poland will be analysed through the application of models and theories stemming from the social sciences. The importance of procedural justice in the copyright legislation process, especially its influence on the image of copyright law and obedience of its norms, will also be emphasised
Global Standards: Recent Developments betweend the Poles of Privacy and Cloud Computing
Get PDFThe development of the Internet has made it possible to transfer data ‘around the globe at the click of a mouse’. Especially fresh business models such as cloud computing, the newest driver to illustrate the speed and breadth of the online environment, allow this data to be processed across national borders on a routine basis.
A number of factors cause the Internet to blur the lines between public and private space: Firstly, globalization and the outsourcing of economic actors entrain an ever-growing exchange of personal data. Secondly, the security pressure in the name of the legitimate fight against terrorism opens the access to a significant amount of data for an increasing number of public authorities.And finally,the tools of the digital society accompany everyone at each stage of life by leaving permanent individual and borderless traces in both space and time.
Therefore, calls from both the public and private sectors for an international legal framework for privacy and data protection have become louder. Companies such as Google and Facebook have also come under continuous pressure from governments and citizens to reform the use of data. Thus, Google was not alone in calling for the creation of ‘global privacystandards’. Efforts are underway to review established privacy foundation documents. There are similar efforts to look at standards in global approaches to privacy and data protection. The last remarkable steps were the Montreux Declaration, in which the privacycommissioners appealed to the United Nations ‘to prepare a binding legal instrument which clearly sets out in detail the rights to data protection and privacy as enforceable human rights’. This appeal was repeated in 2008 at the 30thinternational conference held in Strasbourg, at the 31stconference 2009 in Madrid and in 2010 at the 32ndconference in Jerusalem.
In a globalized world, free data flow has become an everyday need. Thus, the aim of global harmonization should be that it doesn’t make any difference for data users or data subjects whether data processing takes place in one or in several countries. Concern has been expressed that data users might seek to avoid privacy controls by moving their operations to countries which have lower standards in their privacy laws or no such laws at all. To control that risk, some countries have implemented special controls into their domestic law. Again, such controls may interfere with the need for free international data flow. A formula has to be found to make sure that privacy at the international level does not prejudice this principle
Infringement and Exclusive Jurisdiction in Intellectual Property: a Comparison for the International Law Association
Get PDFThe following comparison was written for the first meeting of the International Law Association newly established (2010) Committee on Intellectual Property and Private International Law (Chair: Professor Toshiyuki Kono, Kyushu University; Co-Rapporteurs: Professors Pedro de Miguel Asensio, Madrid Complutense University, and Axel Metzger, Hannover University) (hereinafter: ILA Committee), which was hosted at the Faculty of Law of the University of Lisbon in March 16-17, 2012. The comparison at stake concerns the rules on infringement and exclusive (subject-mater) jurisdiction posed (or rejected, in case of exclusive jurisdiction) by four sets of academic principles. Notwithstanding the fact that the rules in question present several differences, those differences in the majority of cases could be overcome by further studies and work of the ILA Committee, as the following comparison explains
Delineating and Promoting an Online “Legal Offer:” A Proper Task for Copyright Legislation?
Get PDFLegislations tackling the issue of illegal downloading of copyrighted content, notably those enabling so-called “graduated response” mechanisms, often present and promote the idea of “legal offers”, designed to encourage consumers to acquire cultural content legally, as the positive counterpart to their sanctioning provisions. The paper argues that such legal rationales are actually underpinned by ambiguous concepts, bearing underestimated consequences on both practical and theoretical levels. The legislative promotion for the development of socalled “legal” services instills uncertainty in the online market place, thereby affecting online business practices but also the core tenets of copyright law
Information Society Services and Mandatory Data Breach Notifications: Introduction to Open Issues in the EU Framework
Get PDFIn 2011 Sony suffered an extensive breach in its online game network that led to the theft of account data of 77 million users from all over the world. This was one of the largest internet security break-ins that resulted in a large scale personal data breach. As an answer to numerous incidents of security breaches where personal data have been compromised, an instrument of mandatory data breach notification is currently being implemented in the European Union that follows the approach taken in the United States. The revised e-Privacy Directive and the fresh proposal for a General Data Protection Regulation both introduced a provision whereby the entity suffering a breach will have to notify the competent authorities of the breach. Many large online service providers, operate globally, offering its services to users in different countries and processing users’ data in different locations, in the EU and wider. In case such a provider suffers a data breach, and on
condition that European law applies to its operations, the provider will be obliged to report the data breach to the authorities and possibly to the injured individual users.
The paper presents the changes in the regulatory framework in the EU and tackles the question of how the new regulations on mandatory breach notifications will affect online service providers,especially the ones operating across borders. The paper presents the legal framework, assesses its implications and sheds light on the issues that will arise, in terms of applicable law, competencies of the national authorities and the rights of the injured individuals
Recognition and Enforcement of Foreign Judgments in Intellectual Property: a Comparison for the International Law Association
Get PDFThe following comparison was written for the first meeting of the International Law Association’s newly established (2010) Committee on Intellectual Property and Private International Law (Chair: Professor Toshiyuki Kono, Kyushu University; Co-Rapporteurs: Professors Pedro de Miguel Asensio, Madrid Complutense University, and Axel Metzger, Hannover University) (hereinafter: ILA Committee), which was hosted at the Faculty of Law of the University of Lisbon in March 16-17, 2012. The comparison concerns the rules on recognition and enforcement of judgments posed by four sets of academic principles
Internet Intermediaries and the Law Applicable to Intellectual Property Infringements
Get PDFThe coordination between territoriality restricted intellectual property rights and the potential global reach of Internet activities has been the focus of significant attention in recent years. The liability of Internet intermediaries offering potentially global services that may facilitate infringements of intellectual property rights by others in multiple countries poses a particular challenge in that regard. At a substantive law level, significant differences remain between jurisdictions regarding secondary liability for intellectual property rights infringements and safe harbor provisions for Internet intermediaries. The present article discusses the conflict of laws aspects of the liability of Internet intermediaries in light of the recent international efforts to adopt soft law provisions on intellectual property and private international law