JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Cloud Computing in the EU Policy Sphere Interoperability, Vertical Integration and the Internal Market
Get PDFCloud computing is a new development that is based on the premise that data and applications are stored centrally and can be accessed through the Internet. Thisarticle sets up a broad analysis of how the emergence of clouds relates to European competition law, network regulation and electronic commerce regulation, which we relate to challenges for the further development of cloud services in Europe: interoperability and data portability between clouds; issues relating to vertical integration between clouds and Internet Service Providers; and potential problems for clouds to operate on the European Internal Market. We find that these issues are not adequately addressed across the legal frameworks that we analyse, and argue for further research into how to better facilitate innovative convergent services such as cloud computing through European policy – especially in light of the ambitious digital agenda that the European Commission has set out
Spanish Supreme Court Rules in Favour of Google Search Engine... and a Flexible Reading of Copyright Statutes?
Get PDFOn 3 April 2012, the Spanish Supreme Court issued a major ruling in favour of the Google search engine, including its ‘cache copy’ service: Sentencia n.172/2012, of 3 April 2012, Supreme Court, Civil Chamber.*
The importance of this ruling lies not so much in the circumstances of the case (the Supreme Court was clearly disgusted by the claimant’s ‘maximalist’ petitum to shut down the whole operation of the search engine), but rather on the court going beyond the text of the Copyright Act into the general principles of the law and case law, and especially on the reading of the three-step test (in Art. 40bis TRLPI) in a positive sense so as to include all these principles. After accepting that none of the limitations listed in the Spanish Copyright statute (TRLPI) exempted the unauthorized use of fragments of the contents of a personal website through the Google search engine and cache copy service, the Supreme Court concluded against infringement, based on the grounds that the three-step test (in Art. 40bis TRLPI) is to be read not only in a negative manner but also in a positive sense so as to take into account that intellectual property – as any other kind of property – is limited in nature and must endure any ius usus inocui (harmless uses by third parties) and must abide to the general principles of the law, such as good faith and prohibition of an abusive exercise of rights (Art. 7 Spanish Civil Code).The ruling is a major success in favour of a flexible interpretation and application of the copyright statutes, especially in the scenarios raised by new technologies and market agents, and in favour of using the three-step test as a key tool to allow for it
Transnational Law for Transnational Communities The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities
Get PDFOpen Source Communities and content-oriented projects (Creative Commons etc.) have reached a new level of economic and cultural significance in some areas of the Internet ecosystem. These communities have developed their own set of legal rules covering licensing issues, intellectual property management, project governance rules etc. Typical Open Source licenses and project rules are written without any reference to national law. This paper considers the question whether these license contracts and other legal rules are to be qualified as a lex mercatoria (or lex informatica) of these communities
IP and Applicable Law in Recent International Proposals: Report for the International Law Association
Get PDFThe report compares applicable law rules to intellectual property (IP) disputes as proposed in the recent international projects(ALI, CLIP, Transparency, Kopila and Joint Japanese-Korean proposals). Namely, it identifies the differences among proposals, reveals the underlying reasons of differing rules, looks at how particular issues have been until now solved at international and national levels, and finally, overviews the main arguments for and against particular solutions suggested in the proposals. This report was presented in the 1st meeting of the Committee on Intellectual Property and Private International Law of the International Law Association (15-17 March 2012, Lisbon) and is expected to contribute to the merge of current international proposals into a single international initiative
The Digital Economy Act in the dock: a proportionate ruling
Get PDFThe UK’s Digital Economy Act 2010 contains measures to enforce copyright on the Internet, specifically a two-tiered form of a graduated response.The Act was challenged in the High Court by two of the UK’s biggest Internet Service Providers (ISP), who obtained a Judicial Review of the copyright enforce-
ment provisions. This paper is an overview of the case, based on the hearing of March 2011 and the
ensuing judgement. It focuses on the two most hotly contested grounds for the challenge, namely an al-
leged failure to notify the European Commission under the Technical Standards Directive, and the pro-
portionality or otherwise of the contested provisions. It observes how the judgement accepted the defence
argumentation of the government and the copyright owners as interested parties, and how the ISPs appeared to be put on the back foot
The New Swiss Patent Ligitation System
Get PDFSwitzerland is about to implement a completely new patent litigation system, following the establishment of a new specialized federal patent trial court and the replacement of twenty-six cantonal codes of civil procedure with a single uniform federal code of civil procedure. This article provides an overview of the general structure and the most important features of the new patent litigation system that may be of interest to international patent litigants and litigators
Liability for Copyright Infringements on the Internet: Host Providers (Content Providers) - The Geman Approach
No full textCopyright infringements on the Internet affect all types of media which can be used online: films, computer games, audio books, music, software, etc. For example, according to German studies, 90% of all copyright violations affecting film works take place on the Internet. This storage space is made available to such infringers, as well as to others whose intentions are legal, by hosting providers. To what extent do hosting providers have a duty of care for their contribution to the copyright infringements of third parties, i.e. their users? What duties of care can be reasonably expected of hosting providers to prevent such infringements? These questions have been heavily debated in Germany, and German courts have developed extensive case law. This article seeks to examine these questions by assessing German jurisprudence against its EU law background
Till Kreutzer, Das Modell des deutschen Urheberrechts und Regelungsalternativen. Konzeptionelle Überlegungen zu Werkbegriff, Zuordnung, Umfang und Dauer des Urheberrechts als Reaktion auf den urheberrechtlichen Funktionswandel
Get PDFNomos Verlag 2008, 528 p., ISBN 978-3-8329-3998-
Re-conceptualizing the Global Digital Divide
Get PDFThe article seeks a re-conceptualization of the global digital divide debate. It critically explores
the predominant notion, its evolution and measurement, as well as the policies that have been advanced
to bridge the digital divide. Acknowledging the complexity of this inequality, the article aims at analyzing the disparities beyond the connectivity and skills
barriers. Without understating the first two digital divides, it is argued that as the Internet becomes more
sophisticated and more integrated into economic, social, and cultural processes, a “third” generation of divides becomes critical. These divides are drawn not at
the entry to the net but within the net itself, and limit access to content. The increasing barriers to content, though of a diverse nature, all relate to some
governance characteristics inherent in cyberspace, such as global spillover of local decisions, regulation
through code, and proliferation of self- and co-regulatory models. It is maintained that as the practice of intervention intensifies in cyberspace, multiple
and far-reaching points of control outside formal legal institutions are created, threatening the availabil-
ity of public goods and making the pursuit of public objectives difficult. This is an aspect that is rarely ad-
dressed in the global digital divide discussions, even in comprehensive analyses and political initiatives
such as the World Summit on the Information Society. Yet, the conceptualization of the digital divide as
impeded access to content may be key in terms of ensuring real participation and catering for the longterm implications of digital technologies