JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Digital Higher Education and Copyright Law in the Age of Pandemic - The Hungarian Experience
Full text linkDigital technologies have triggered significant methodological, business and behavioural changes in higher education. The increasing gap in the needs and possibilities of digital learning and education was partially due to the rigid and outdated copyright norms, which were designed for an analogue environment. The legislation of the European Union has accepted Directive 2019/790 on Copyright and Related Rights in the Digital Single Market (CDSM Directive) in 2019. As a part of this reform, the EU has amended (broadened) the scope of educational limitations and exceptions. Life has abruptly changed with the global outbreak of the SARS-CoV-2 (COVID-19) pandemic. It has led to the closure of the premises of educational institutions and libraries. The online access, use and sharing of copyright protected materials turned out to be the only way to continue education in the early lockdown period and continues to be a significant way of learning in the “new normal”. Hungary had to face the same challenges of the pandemic. Importantly enough, this country was the first to implement Article 5 of the CDSM Directive in April 2020. The empirical analysis of the new copyright regime and the effects of pandemic on higher education (and educational limitations and exceptions) is nevertheless still missing. This paper intends to fill in this gap. First, the paper shortly introduces the novelties of the CDSM reform related to educational limitations and exceptions in general and in Hungary, and discusses how the COVID-19 pandemic has affected higher education throughout 2020-2022. Second, it includes the empirical analysis of the awareness, perceptions and use practises of students, educators and librarians of the University of Szeged with respect to digital (distance and online) learning and teaching in the pandemic
Guardians of the UGC Galaxy – Human Rights Obligations of Online Platforms, Copyright Holders, Member States and the European Commission Under the CDSM Directive and the Digital Services Act
Full text linkWith the shift from the traditional
safe harbour for hosting to statutory content filtering and licensing obligations in Article 17 of the
CDSM Directive, EU copyright law imperils the freedom of users to upload and share their content creations. Seeking to avoid overbroad inroads into freedom of expression, EU law obliges online platforms
and the creative industry to take into account human
rights when coordinating their content filtering actions. Platforms must also establish complaint and
redress procedures for users. The European Commission will initiate stakeholder dialogues to identify
best practices. These “safety valves” in the legislative
package, however, may prove to be mere fig leaves.
Instead of safeguarding human rights, the EU legislator outsources human rights obligations to the platform industry. At the same time, the burden of polic-ing content moderation systems is imposed on users
who are unlikely to bring complaints in each individual case. The new legislative design may thus conceal human rights violations instead of bringing them
to light. The Digital Services Act rests on a similar –
equally problematic – approach. Against this backdrop, the analysis addresses the risk of human rights
interference, which is exacerbated by the fact that
the Court of Justice, in its Poland decision, upheld the
regulatory approach underlying Article 17, rather than
exposing and discussing the corrosive effect of human rights outsourcing. Luckily, the new rules in the
CDSM Directive and the Digital Services Act also contain several safeguards that allow EU Member States
and the European Commission to actively take measures against the erosion of human rights
Authorless AI-assisted productions: Recent developments impacting their protection in the European Union
Full text linkThe question of whether AI-generated works can be protected by copyright has become a hot topic over the last few years. However, “AI-generated works”, at least as currently defined in some policy and legal texts, do not exist. This article seeks to explain how machine learning and natural language processing, which are two subfields of Artificial Intelligence, are used in the creative process. It then outlines the obstacles that works created with AI face in order to be classified as protectable subject matter. After that, it briefly analyses whether such works can be protected by existing related rights and concludes by discussing the arguments put forward in the academic literature in favour of the creation of a new exclusive right to encourage investment in “creative AI”
Transparency as a legal value for patent disclosure
Full text linkThis paper is dedicated to the assessment of transparency as a legal value in patent law, as well as in other areas of information flows. It outlines the essence and functions of transparency and, on this basis, proposes a genuinely new conception for assessing transparency. This conception is then applied to the patent system, more particularly to patent disclosure. It sheds new light on disputed issues such as the sufficiency of patent disclosure, the best mode requirement, and the disclosure of training data when patenting AI inventions
Towards a better notice and action mechanism in the DSA
Full text linkThe adoption of the DSA will bring
important changes in the content moderation landscape in the EU. By harmonising, codifying, and further developing a notice and action mechanism, the
DSA addresses many content moderation-related
challenges, and in so doing also affects the balance
that existed thus far between the protection of victims of illegal content, the safeguarding of fundamental rights and the economic interests of hosting
service providers. This contribution answers the following question: Does the notice and action mechanism of the DSA create an adequate balance between
the various involved interests?
As far as the economic interests of hosting service
providers are concerned, the harmonisation of the
mechanism should certainly be a welcome change
for economic operators. Further, even though the
DSA contains many new procedural obligations, they
entail reasonable efforts.
The requirement of a harmonised, efficient, effective
and user-friendly notification procedures should fix the existing limitations and can be seen as an important step for the protection of the victims’ interests.
However, the lack of an obligation to provide a statement of reasons to notifiers is a missed opportunity.
Finally, the safeguards of content providers’ fundamental rights are also enhanced. Not only through
the creation of new redress mechanisms, but also
through the hosting provider services’ obligation to
provide decisions that are objective, non-arbitrary,
diligent and timely, and to justify them through a
statement of reasons. Although the applicability of
the safeguards is still too narrow in some respects,
the new safeguards and their requirements should
improve the current situation in which hardly any
binding legal provisions exist.
All in all, even though it contains various shortcomings that prevent it from truly striking an adequate
balance, the DSA’s notice and action mechanism
does represent a significant step forward for all the
parties that have a stake in the moderation of online content
Prior filtering obligations after Case C-401/19: balancing the content moderation triangle A comparative analysis of the legal implications of Case C-401/19 for filtering obligations ex ante and the freedom of expression in Europe
Full text linkOn 26 April 2022, the CJEU finally delivered its judgment (Case C-401/19 Poland v. Parliament and Council) on the compatibility of Article 17 DSM-directive with the freedom of expression (Article 11 Charter). Article 17 DSM-directive introduces an obligation for online content-sharing platforms to proactively prevent uploads of copyright infringing material. This de facto requires them to resort to automatic filtering technologies with a potential of over-blocking. The CJEU concluded that such prior filtering restricts an important means of disseminating online content and therefore constitutes a limitation of Article 11 of the EU Charter. The CJEU nevertheless upheld Article 17, finding a justification for this limitation. Several scholars have suggested that the CJEU’s conclusions have implications outside the copyright realm on obligations for platforms to detect illegal content. Although this linkage is suggested, it has up to now not been looked into exhaustively. This article aims to answer the question what the legal implications of Case C-401/19 are for the regime of de facto obligations on online content-sharing platforms under EU law to act against illegal content ex ante more generally. It distils other de facto obligations on online content-sharing platforms to carry out a prior review of content. These obligations are all governed by the prohibition of general monitoring obligations (e.g. Article 8 DSA). The CJEU treats this prohibition as a safeguard to the freedom of expression. Consequently, online content-sharing platforms should only block content that is clearly illegal. This article shows that the fundamental importance of the freedom of expression and information of the users of the internet needs to play a key role in designing obligations to act against illegal content both inside and outside the area of copyright law
Online Learning as a Commons: Supporting students’ data protection preferences through a collaborative digital environment
Full text linkThe COVID-19 pandemic has accelerated the adoption of technology in education, where higher education institutions had to implement online teaching models overnight, without time for due consideration of appropriate data protection practices or impact assessments. The General Data Protection Regulation (GDPR) attempts to limit the negative effects caused by the digitisation of education such as lecture capture, tutorial recording, and education surveillance. The GDPR, however, may be insufficient in removing the power imbalance between students and their institutions, where students as data subjects have no choice but to accept their institutions’ terms or be locked out of academia. To increase protection of students’ autonomy, we propose an online learning data protection-focused data commons to support their agency with regards to protecting their personal data. We explain how a commons could apply to online learning, then develop and test an application to put the commons into practice. From our results, we find that although over 50% of students trust universities and staff with their online learning personal data, more transparency on institutional policies and data protection rights can support higher online learning participation rates, help mitigate potential data protection harms, and give students agency over their personal data beyond consent. We conclude that further research is required to move away from consent as the lawful basis for tutorial recordings, support inclusive online learning pedagogies, and balance the implementation of educational technologies with the need to deliver online learning to benefit students’ academic experience
The Evolution of the Perception of Artificial Intelligence in the EU: The Case of Judicial Administration
Full text linkEfficiency of judicial administration
is one of the priorities of justice systems, it acts as
a means to achieve effective administration of justice and wider access to courts through minimum
spending of resources. One element associated with
a satisfactory level of court efficiency is the integra-
tion and use of digital technologies by judicial staff.
Artificial Intelligence (AI) stands out as a superior al-
ternative to traditional digital technologies due to
its use of Machine Learning (ML), to achieve desig-
nated goals. This article will trace the evolution EU
policymakers’ understanding of AI in the context of
EU Member States’ courts integrating AI systems to
efficiently automate their judicial administration. By comparing AI definitions provided by EU bodies, specifically referencing the proposed AI Act, this article
highlights the commonly accepted characteristics of
AI. Additionally, it examines arguments put forth by
leading computer scientists regarding the interpretation of “intelligence” in artificial artifacts. We will find
that AI systems are perceived as systems employing ML and logic and knowledge-based approaches
that are capable of mimicking basic human cognitive
functions to autonomously automate manual tasks.
These findings will be followed by remarks on the
necessary steps for the integration of AI-based applications in EU justice systems
Out-of-court dispute settlement mechanisms for failures in content moderation
Full text linkContent moderation is at the core
of online platform activities. Many platforms allow
users to post content that may or may not comply
with the terms of service or that may violate national
laws. In order to avoid these violations, online platforms have started to monitor content both ex post
and ex ante. However, mistakes may still (frequently)
happen.
In order to allow users to effectively contest decisions
and compel platforms to restore content or accounts
after erroneous decisions, online platforms should
provide adequate due process mechanisms to appeal
and seek redress. The EU has addressed this point by
including specific provisions in the recently adopted Digital Services Act (DSA). In particular, Article 21 provides that complaints against online platforms can
also be resolved through out-of-court dispute settlement mechanisms provided by certified bodies.
After analysing the role of online platforms in content
moderation, this essay focuses on the types of dispute resolution mechanisms envisaged in the DSA.
Assessing, on the one hand, the proposed criteria for
effective out-of-court dispute settlement bodies according to the principles of fairness, accountability,
independence and transparency and, on the other
hand, the shortcomings that emerge from the certification mechanism defined in the DSA
Online sharing of Digital Design files as “use of a design”? A reassessment of the current regime of liability
Full text linkEU Design law often appears as
lacking the same strong identity that characterises
trademark and copyright rights. Divergent conceptions over the scope of protection of these rights
have persisted, disguised behind the pretence of a
fully harmonised legal framework.
New developments in technology, social practices
and business models now force us to question the
extent to which design protection could apply to new
forms of digital creation, distribution, and consumption of designs.
As the European Commission carries out a reappraisal of whether Design law is sufficiently flexible
to remain relevant in the digital economy and what
protection it can offer to rightsholders against acts of
illegal online sharing of files, this article will attempt
to critically assess the jurisprudence, literature, and
legislative history of design legislation to determine
whether immaterial forms of “use of a design” may
constitute infringing acts – with a particular focus on the online sharing of Digital Design files.
This review demonstrates that the extension of protection to forms of immaterial exploitation of designs
may have been an unintended result facilitated by
the ambiguous wording of the legislation.
The last section of the article assesses the potential
liability for the sharing of a DD file in a platform environment, a question also recently considered by the
Commission’s study. After recognising the crucial role
of the “appearance” of a design as a condition of lia-
bility, the article discusses how this may cause De-
sign law to be inconsistent or ineffective in tackling
the online sharing of designs. In the conclusion of
this article, a few possible solutions are canvassed. It
is submitted that the current Commission Proposal
does not satisfactorily address the conceptual issues
outlined in the article, risking rather being a short-
sighted and unprincipled response to a much broader
necessity: a general reconceptualisation of what design should protect in the digital ecosystem