JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Declaration on the Three-Step Test: Where do we go from here?
Full text linkThe “Declaration on a balanced interpretation of the ‘Three-Step Test’” as such cannot
solve the problem of lacking limitations; however, it
emphasizes that the existing international legislation
does not prohibit further amendments to copyright
law.
Nations that dispose of the political will are in a position to introduce new limitations. In addition, further international agreements focusing on new limitations may be negotiated among those countries
that are ready to do so
Why Cherry-Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under Directive 2001/29/EC
Full text linkThe article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related
rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article.
The following section takes a closer look at three examples of limitations that have led to legislative changes at the Member State level
as express measures towards the implementation of the Information Society Directive, that is, the limitations for the benefit of libraries, for teaching and research, and for persons with a disability.
These exceptions and limitations were later on also identified by the European Commission as key elements in the deployment of a digital knowledge economy. The analysis will show that the implementation of the provisions on limitations in the Information Society
Directive did not, and probably cannot, yield the expected level of harmonisation across the European Union and that, as a consequence, there still exists a significant degree of uncertainty for the stakeholders regarding the extent of permissible acts with respect to copyright protected works
Unsticking the centre-piece – the liberation of European copyright law?
Full text linkFollowing European legislative initiatives in the field of copyright limitations and exceptions, policy flexibilities formerly available to mem-
ber states has been greatly diminished. The law in
this area is increasingly incapable of accommodating any expansion in the scope of freely permitted
acts, even where such expansion may be an appropriate response to changes in social and technological conditions. In this article, the causes of this problem are briefly canvassed and a number of potential
solutions are noted. It is suggested that one such solution – the adoption of an open, factor-based model
similar to s 107 of the United States’ Copyright Act
– has not received the serious attention it deserves.
The fair use paradigm has generally been dismissed
as excessively unpredictable, contrary to international law and/or culturally alien. Drawing on recent
fair use scholarship, it is argued here that these disadvantages are over-stated and that the potential
for the development of a European fair use model
merits investigation
Governance of Massive Multiauthor Collaboration – Linux, Wikipedia, and Other Networks: Governed by Bilateral Contracts, Partnerships, or Something in Between?
Full text linkOpen collaborative projects are
moving to the foreground of knowledge production.
Some online user communities develop into longterm projects that generate a highly valuable and at
the same time freely accessible output. Traditional
copyright law that is organized around the idea of a
single creative entity is not well equipped to accommodate the needs of these forms of collaboration. In
order to enable a peculiar network-type of interaction
participants instead draw on public licensing models
that determine the freedoms to use individual contributions. With the help of these access rules the
operational logic of the project can be implemented
successfully. However, as the case of the Wikipedia
GFDL-CC license transition demonstrates, the adaptation of access rules in networks to new circumstances raises collective action problems and suffers
from pitfalls caused by the fact that public licensing is
grounded in individual copyright.
Legal governance of open collaboration projects is a
largely unexplored field. The article argues that the license steward of a public license assumes the position of a fiduciary of the knowledge commons generated under the license regime. Ultimately, the
governance of decentralized networks translates
into a composite of organizational and contractual elements. It is concluded that the production of global
knowledge commons relies on rules of transnational
private law
Internet Service Provider Liability - The Swiss Perspective
Full text linkSwitzerland does not have a concrete legal framework dealing with rights and obligations of ISPs; however, legal doctrine and practice apply similar principles as stated in the E-Commerce Directive of the EU. The liability of ISPs depends on the “closeness” to the content. Whereas in cases of solely transmitting services the risk of liability for illegal information is remote and the duty of ISPs is limited to a take-down, content, host and link providers (in cases of moder- ated newsgroups) can become liable if the information made available is not controlled
Internet Service Providers Liability in Spain
Full text linkThe article focuses on the current situation of Spanish case law on ISP liability. It starts by presenting the more salient peculiarities of the Spanish transposition of the safe harbours laid down in the E-Commerce Directive. These peculiarities relate to the knowledge requirement of the hosting safe harbour, and to the safe harbour for information location tools. The article then provides an overview of the cases decided so far with regard to each of the safe harbours. Very few cases have dealt with the mere conduit and the caching safe harbours, though the latter was discussed in an interesting case involving Google’s cache. Most cases relate to hosting and linking safe harbours. With regard to hosting, the article focuses particularly on the two judgments handed down by the Supreme Court that hold an open interpretation of actual knowledge, an
issue where courts had so far been split. Cases involving the linking safe harbour have mainly dealt with websites offering P2P download links. Accordingly, the article explores the legal actions brought against these sites, which for the moment have been unsuccessful. The new legislative initiative to fight against digital piracy – the Sustainable Economy Bill – is also analyzed. After the conclusion, the article provides an Annex listing the cases that have dealt with ISP liability in Spain since the safe harbours scheme was transposed into Spanish law