JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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How the AI Act Applies to E-Commerce
Full text linkThis article researches the following questions: To what extent do the provisions of the AI Act apply to e-commerce companies that use AI? To what extent is this in line with the objectives of the AI Act, considering the risks in relation to the use of AI for e-commerce?
The AI Act has a risk-based approach. For e-commerce companies to comply with the AI Act, it is important to know how applicable it is to their activities. Some e-commerce activities might be under the prohibited practices in the AI Act. However, most of the e-commerce activities are not entirely regulated by it since they are not classified as high-risk AI systems under the AI Act. Since e-commerce can pose serious risks, especially regarding manipulation and discrimination, the AI Act leaves a regulatory gap in the use of AI in e-commerce. 
Taming NFTS with Trademark Law Tools: Future Challenges for Sri Lanka
Full text linkWhen NFTs were first introduced, it was generally believed that they would foreclose avenues for trademark counterfeiting owing to their innate characteristics. Despite all the optimism, NFTs have given rise to a number of unprecedented trademark issues. Thus, the question arises whether the traditional trademark law regime is sufficiently equipped to tackle NFTs-related trademark issues. Although it ostensibly involves a mere extension of the existing trademark law principles to a new phenomenon, in effect, it entails an arduous exercise infused with intricate legal issues. To be more explicit, the complexity of the legal issues posed by NFTs has baffled many sophisticated legal regimes in the world including the USA and EU. The legal issues that surfaced in Hermès Int’l v.Rothschild, 590 F. Supp. 3d 647 (S.D.N.Y. 2022), Nike Inc. v. StockX LLC. 1:22-cv-. 00983 (S.D.N.Y. February 3, 2022) and Juventus F.C. v Blockeras s.r.l, (Docket No. 32072/2022, Court of Rome IP Chamber, 20/07/2022) bear testimony to this fact. As far as Sri Lanka is concerned, however, to the best of the author’s knowledge, the courts have not encountered any NFTs-related trademark disputes so far. But this does not mean that it will be immune from such issues in the future. The concept of NFTs has become so pervasive that it is no longer limited to sophisticated jurisdictions. Therefore, in this paper, an attempt is made to critically evaluate the adequacy of the existing legal regime on trademarks in Sri Lanka to grapple with the legal dilemma created by the proliferation of NFTs in the virtual realm. This paper will also look at the developments in comparative jurisdictions, specifically, the USA and EU with a view to shedding light on how the international experiences and best practices can be used to ameliorate the Sri Lankan trademark landscape, inview of the growing menace of NFTs
Hybrid Speech Governance : New Approaches to govern Social Media Platforms under the European Digital Services Act?
Full text linkThe normative development of communication rules on online platforms puts traditional notions of rulemaking and rule application in trouble. The overlap, interdependence, and inseparability of private and public communication rules on social media platforms should therefore be analyzed under the lens of a specific category: hybrid speech governance. This perspective can help to find appropriate approaches to contain private power without simply transferring state-centric concepts unchanged to platform operators. This applies to questions of the basis for validity of communication rules, rule of law requirements, and fundamental rights obligations. The EU’s Digital Services Act (DSA) adopts this perspective of hybrid speech governance and thus finds initial legislative answers to the questions raised. Art. 14 DSA is noteworthy in that regard, but it is only the beginning of the story. Academia, practice, and jurisprudence will have to flesh out the DSA’s approaches to hybrid speech governance in detail. In particular, the current parallel debate in the U.S. on the question of the constitutional obligations of social media platforms could benefit from this European approach as a source of inspiration–it does not seem out of the question that the Supreme Court will add a balancing model to the current dichotomy of state action doctrine. Only such a balancing model can do justice to the phenomenon of hybrid speech governance, for platform governance and beyond
Civil Society Actors as Enforcers of the GDPR: What Role for the CJEU?
Full text linkThis article examines the interaction between the CJEU and civil society actors in data protection cases. It first reflects on the role of such actors in legal actions concerning the protection of personal data before national and EU courts, stressing their key potential to address power imbalances between individuals and Big Tech companies. Then, it critically assesses the CJEU’s contribution to fostering the role of civil society in the GDPR enforcement. It demonstrates that non-governmental organizations are excluded from participation in infringement proceedings against Member States for failing to fulfil their obligations under the GDPR, which can be launched by the Commission under Article 258 TFEU. Furthermore, such organizations cannot bring direct actions against the Commission’s delegated and implementing acts due to the lack of standing under Article 263 TFEU. Additionally, civil society actors have a limited possibility to intervene as third parties in the legal proceedings before the CJEU. Yet this article contends that a greater involvement of these actors in legal proceedings before the CJEU is key to enhancing its responsiveness to the demands of civil society. It therefore reflects on the ways to make the CJEU a more effective avenue for legal mobilization in the field of data protection
Enabling Patent Transactions Through the Use of Blockchain Technology
Full text linkAccess to complete, accessible, up-to-date, and accurate patent information is a prerequisite for transacting patents efficiently. Whereas patent registers administered by patent offices aim to communicate patent information to the public, they face limitations in the era of rapid innovation, partially due to manual input and verification of data. In this paper,
we argue that integrating blockchain technology into patent registers could assist in remedying certain limitations of conventional ‘reference’ registers by combating territorial fragmentation, improving patent ownership tracing, and increasing the visibility of patents that could be traded. We further investigate to what extent blockchains are conducive to enabling patent transactions and explore the possibility of transforming patent registers into patent marketplaces
A Medley of Public and Private Power in DSA Content Moderation for Harmful but Legal Content: An Account of Transparency, Accountability and Redress Challenges
Full text linkThis paper analyses the challenges associated with the co-regulatory arrangement of Articles 34 and 35 of the Digital Services Act (DSA) for the mitigation of the risks posed by harmful but legal content. Filling a gap in the existing literature, this paper focuses on the implications of the public-private cogeneration of content moderation policies for harmful but legal content resulting from the implementation of the DSA. This paper highlights three challenges deriving from the ‘’hybrid’’ public-private governance of harmful speech in the context of the DSA. First, the potential lack of transparency on public influence over private content moderation policies. Second, the risks of unaccountability of public bodies who are able to steer private content moderation policies to pursue public policy objectives. Third, the lack of effective redress available to users against interferences with their legal speech. Building on these considerations, this paper puts forward two main arguments. First, the governance model for online speech of the DSA poses challenges that are not addressed by the current legislative framework. Second, the public-private dichotomy of EU fundamental rights law is not fit for purpose in the face of hybrid regulatory models. Based on the identified challenges, the paper discusses the main shortcomings of the legislative framework, with the aim to define a path for future research. 
Home is where the heart is: the household exemption in the 21st century
Full text linkThe household exemption provides that the data protection regime does not apply when a natural person processes personal data for purely personal or household activities. The exemption was inserted because personal and household activities were considered to fall under the right to privacy and because it was deemed unlikely that such activities would cause significant harm. Ever since its introduction, but especially due to its interpretation by the Court of Justice and the partial revision under the GDPR, ambiguity and uncertainty have plagued the exemption. Moreover, because of the increased access of citizens to data processing technologies and the ease with which large amounts of (sensitive) data can be made public, the question is whether the initial rationale for the household exemption is still valid and whether it should be revised or even omitted from the data protection regime
Copyright Protection of Broadcasts in Australia: The intersections between originality, economic investment, and social-oriented perspectives
Full text linkThis article examines the copyright protection of broadcasts in Australia. It investigates the difference in the legal treatment of creative subject matter, in the form of original literary, dramatic, musical, and artistic works, versus productive subject matter, in the form of broadcasts. The analysis focuses on the social-oriented perspective of granting copyright protection to broadcasters, separately from that afforded to creators of original works. This paper also emphasises the social-oriented rationale for the protection of broadcasters’ rights under copyright law in Australia; that is, the wider interests of the public to access original content and information through broadcasts. Finally, this paper argues that copyright law in Australia needs to protect the interests of original creators and broadcasters, while enabling the wider public to access original content and excluding others from unauthorised use of their respective contributions