JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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The Data Act & Policy Options for a Sectoral Regulation to Protect Competition in the Automotive Aftermarket
Full text linkThe European Data Act seeks to end the exclusive control of device manufacturers over IoT data in order to open secondary markets for innovative data-driven services. One of the sectors where the Data Act may have disruptive potential is the automotive aftermarket. Here, vehicle manufacturers and third-party service providers debate about access to “vehicle data, functions and resources” since nearly a decade. Despite the acknowledgement of the European Commission that the vehicle manufacturers’ data governance concept may be anticompetitive, this issue is still unregulated. The Data Act could potentially offer a solution to this problem, however due to a series of general shortcomings and sector-specific application issues, it fails to open the automotive aftermarket for innovative third-party services. Aware of this, the European Commission published an initiative for a sectoral regulation on access to vehicle data, functions and resources. While Data Act and sectoral regulation in principle pursue similar objectives, they have different approaches. This raises the question how the lex-specialis should be designed in order to protect competition in the automotive aftermarket in the light of an enacted Data Act. Finally, this article provides policy recommendations for such a sectoral access regulation
Fundamental rights in CJEU data retention case law: A refined regime in response to Member States’ concerns, or compensating for the lack of legislative intervention in the digital age?
Full text linkData retention laws in the EU Member States entered a state of flux following Digital Rights Ireland and the annulment of Directive 2006/24/EC as a violation of the fundamental rights to respect for private life and to the protection of personal data. For many Member States, it remained unclear what impact the invalidation of the directive should have on domestic data retention regimes. In subsequent case law, the CJEU sought to clarify the requirements deriving from EU law for national data retention legislation. While the CJEU has ruled that EU law in principle precludes national rules that prescribe a general and indiscriminate retention of traffic and location data by providers of electronic communications services and networks, it has also carved out exceptions that may justify interference with fundamental rights. Relevant cases have attracted much attention, with many national governments reaching out to the CJEU through observations submitted on what is admittedly a particularly complex and sensitive field of law. This article studies CJEU data retention case law and its evolution, examining the ways in which the CJEU has positioned itself vis-à-vis Member States’ arguments on the balance to strike between fundamental rights’ protection on the one hand and safeguarding national security and fighting (serious) crime on the other. The analysis shows how the CJEU has progressively refined and recalibrated its jurisprudence to acquiesce in part with Member States’ demands. It also attests to the important role played by the CJEU in digital governance and the protection of fundamental rights in the absence of legislative intervention that addresses the particularities of the digital realm: the CJEU interprets the existing norms afresh, shapingthe fundamental rights requirements applicable to Member States’ data retention regimes. 
Navigating the Legal Landscape: Technical Implementation of Copyright Reservations for Text and Data Mining in the Era of AI Language Models
Full text linkThe profound advancements in AI-driven language models, exemplified by ChatGPT, owe their existence to vast quantities of text and data utilized in their training. However, the origins of this data and its suitability for training AI models raise considerations in the domain of Text and Data Mining (TDM) and its associated copyright requirements.
European and German regulation provide an opt-out system for TDM: Freely available works may be used for TDM if they have not been reserved by the rightsholder. A reservation of use is effective only if it is made in a machine-readable format. On the one hand, state-of-the-art language models use large amounts of text data from different domains. On the other hand, no (de facto) standard for reservations of use has yet been established. In this paper, we will therefore:
• discuss the legal requirements,
• give an insight into how usage reservations are dealt with in practice and
• suggest a possible standard
Digital Advertising and the GDPR Identifying the (Joint) Controllers in the Real-Time Bidding Ecosystem
Full text linkIn digital advertising, real-time bidding allows advertisers to place their advertisements in publishers’ inventories in real time, after having participated in an auction with competing bidders. In Europe alone, personal data on users’ online behaviour is collected and shared 197 billion times per day by more than 1000 firms’ part of the real-time bidding ecosystem. This gives real-time bidding the title of the “biggest data breach ever recorded”. Having a clear understanding of the roles and responsibilities of the entities involved in real-time bidding becomes of paramount importance to enhance compliance with the data protection legislation and adequately safeguard data subjects’ rights. This paper aims to identify the (joint) controllers for the personal data processing operations performed during a real-time bidding auction
Generative AI and Creative Commons Licences - The Application of Share Alike Obligations to Trained Models, Curated Datasets and AI Output
Full text linkThis article maps the impact of Share Alike (SA) obligations and copyleft licensing on machine learning, AI training, and AI-generated content. It focuses on the SA component found in some of the Creative Commons (CC) licences, distilling its essential features and layering them onto machine learning and content generation workflows. Based on our analysis, there are three fundamental challenges related to the life cycle of these licences: tracing and establishing copyright-relevant uses during the development phase (training), the interplay of licensing conditions with copyright exceptions and the identification of copyright-protected traces in AI output. Significant problems can arise from several concepts in CC licensing agreements (‘adapted material’ and ‘technical modification’) that could serve as a basis for applying SA conditions to trained models, curated datasets and AI output that can be traced back to CC material used for training purposes. Seeking to transpose Share Alike and copyleft approaches to the world of generative AI, the CC community can only choose between two policy approaches. On the one hand, it can uphold the supremacy of copyright exceptions. In countries and regions that exempt machine-learning processes from the control of copyright holders, this approach leads to far-reaching freedom to use CC resources for AI training purposes. At the same time, it marginalises SA obligations. On the other hand, the CC community can use copyright strategically to extend SA obligations to AI training results and AI output. To achieve this goal, it is necessary to use rights reservation mechanisms, such as the opt-out system available in EU copyright law, and subject the use of CC material in AI training to SA conditions. Following this approach, a tailor-made licence solution can grant AI developers broad freedom to use CC works for training purposes. In exchange for the training permission, however, AI developers would have to accept the obligation to pass on – via a whole chain of contractual obligations – SA conditions to recipients of trained models and end users generating AI output
Authors’ rights vs. textual scholarship: a Portuguese overview
Full text linkThis article addresses the main restrictions that European textual and genetic scholars face when the literary works they study are not in the public domain. Using Portugal as an example, the essay illustrates the most relevant contours of copyright policy and licensing in countries with a legal tradition of Droit d’Auteur, which protects not only intellectual property but also the sensitive moral interests of authors. While considering a few limitations and exceptions for teaching and scientific research secured in the law, the paper refers to case studies that showcase legal shortcomings in balancing authors’ rights with the academic freedom of textual scholars, especially when digital editorial methodologies are involved. We argue that the dominant protection currently afforded to copyright holders in Europe undermines the research ecosystem of this disciplinary field, rendering knowledge production and scientific publication practically unfeasible for anyone investigating textual variance in the works of 20th- and 21st-century writers. After drawing attention to the problem, we plead for policy-making adjustments to allow greater freedom in using copyrighted works for humanities research and scholarship
Trademark protection for faces? A comprehensive analysis on the benefits and drawbacks of trademarks and the right to facial image
Full text linkThe purpose of this paper is to present a comprehensive framework for the possibility of trademark protection for human faces. In the case law of the European Union Intellectual Property Office there are a few examples of trademarks, which consist of only photorealistic human faces. Private law protects the use of images; however, the trends of recent years demonstrate that trademarks could also have a role in such protection. The author aims to analyze the similarities and differences between trademark protection and personality rights in order to determine whether trademarks for faces are necessary or not. The overarching analysis compares twelve aspects of the two ways in which the legal systems protect facial imagery, highlighting their various advantages and drawbacks. The comparison includes the following attributes: function of protection, scope of protection, territorial dimensions of protection, temporal dimensions of protection, conditions of protection, content of protection, limitations and exceptions, transferability of rights, enforcement of rights, requirement of use, termination of rights and costs
Fair Compensation for Private Copying: Is There a Need to Amend Luxembourg’s Copyright Law?
Full text linkPrivate copying exceptions are a core feature of many copyright laws around the world. EU Member States may provide for such an exception on the condition that the rightholders receive fair compensation. Although the European Court of Justice (ECJ) interprets the fair compensation requirement as an autonomous concept of EU law, it concedes Member States broad discretion when determining the design of their compensation scheme. Most of them have adopted a private copying exception, regularly in conjunction with a levy system operated by collecting societies. Luxembourg’s Copyright Act enshrines a private copying exception on the condition that the rightholders receive fair compensation. The law refers to a Grand-Ducal regulation to lay down the conditions for determining and collecting it, but no corresponding act has ever been promulgated. This article interprets the existing legal framework in Luxembourg considering the ECJ’s interpretation of Article 5(2)(b) DIR 2001/29/EC and assesses the need to amend Luxembourg’s copyright law. It proposes establishing a fair compensation scheme funded through the general state budget and managed through an existing collective management organisation thereby taking into account the government’s existing financial support of social and cultural establishments that already benefit reproduction rightholders
Digital Exhaustion: A Decade After the UsedSoft Case
Full text linkDigital exhaustion has been a recurring theme in EU copyright law. While some may argue that the ruling of the Court of Justice of the European Union (CJEU) in the Tom Kabinet case definitively solved the surrounding questions, this paper takes the opposite stance. It offers a critical analysis of the CJEU\u27s major decisions in a decade-long legal saga and examines the current status quo from the perspective of copyright exhaustion in the context of copyright law. The paper pleads for a balanced approach to digital exhaustion in the modern age as the current ruling of the CJEU has resulted in a clear shift of balance in favor of the rightsholders at the expense of users and other stakeholders in the market with copyright-protected works