JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
Not a member yet
417 research outputs found
Sort by
ALLEA Statement on Open Access Publication Under “Big Deals” and the new Copyright Rules
Full text linkTowards a Right to Digital Education? Constitutional Challenges of Edtech
Full text linkEducation is increasingly going digital. The COVID-19 pandemic has compelled students to attend school and college online through the use of often private digital platforms. For many this change has been regarded negatively, yet for some, especially students with disabilities or from remote geographical areas, this opportunity has been essential to access or continue their studies, thus making the right to education, as enshrined in many national and supranational constitutional texts, even more effective. Despite the advantages of introducing a right to access education remotely, this paper examines the constitutional drawbacks of this proposal. The first part of the article argues that a right to digital education should be recognised as a component of the right to quality education in the digital age in terms of possibility for the individual to access educational
materials online, as well as a right to acquire sufficient digital skills to fully participate in democratic society. However on the path towards a full implementation of this right lies a structural obstacle: education is not only increasingly digital but also private. The second part of the paper examines the constitutional challenges generated by private actors dominating the edtech sector. While education has usually been conceived of as a public service, increasingly this area of welfare is left in the hands of private actors that have the power to shape the technical and social infrastructures to exercise constitutional rights. The paper concludes with an assessment of existing regulatory frameworks to ensure that private organisations contribute to fostering the right to digital education
Shaping the field of EU Data Law
Full text linkThe lawmakers in Brussels have worked relentlessly in recent years on enacting legislation targeting data. Yet, data legislation and the associated research have so far been conducted through the lenses of traditional fields of law, such as copyright law and fundamental rights law. While some authors do use the term “EU data law”, almost no works exist that elaborate on the term and set out the value in conceptually working with an independent field of EU data law. To bridge this gap, the article demonstrates how EU data law can be classified as an autonomous legal field pursuant to the theory of factual classification. Furthermore, it shows how EU data law diverges from adjacent legal fields by striving to safeguard five distinct objectives stemming from data’s particular characteristics. The objectives can be summarised as protection of the following: (i) a competitive market, (ii) fundamental rights, (iii) consumers, (iv) trustworthiness and (v) Open Data. The article argues that to effectively create, interpret and enforce data legislation, it is necessary for the EU lawmaker to take into account all of these objectives, thus making classification an essential tool for ensuring a coherent body of data legislation. Moreover, the article advances that there is a dichotomy within EU data law between economic goals and fundamental rights. While such a dichotomy is not an issue in itself, it is problematic if it is not taken adequately into account by the legislator when proposing and enacting data legislation. The article concludes that the EU legislator must actively acknowledge the effects of the dichotomy in order to ensure a coherent data legislation capable of sustaining a digital European society
The Digital Services Act: transparency as an efficient tool to curb the spread of disinformation on online platforms?
Full text linkThe Digital Services Act (DSA), which aims at the creation of a safer online environment in Europe, addresses the lack of transparency in content moderation by online platforms. Therefore, the DSA imposes several new due diligence obligations. This article explores the implications of these transparency obligations on the spread of disinformation, in particular on the Very Large Online Platforms (VLOPs) that will be subject to additional scrutiny. The article highlights the potential benefits of the new regulatory framework that enables the access transparency of vetted researchers to platforms’ data, empowers users by reducing information asymmetry and mitigates certain risks. However, questions remain regarding the information overload for the regulators and the effectiveness of the future DSA enforcement. In view of the possible enforcement issues, the article proposes to go further, for example by adding a general principle of transparency (beyond the list of due diligences obligations) and by strengthening the co-regulatory and multistakeholder model of regulation (beyond what the DSA helpfully provides)
All Agents Created Equal? The Law’s Technical Neutrality on AI Knowledge Representation
Full text linkThe term “Artificial Intelligence” comprises different approaches. They can be roughly divided into rule-based approaches and approximative machine learning. The author discusses the legal implications of this technological choice on the background of Product Liability law. It stands to reason that using rule-based approaches may be prone to stricter safety standards than approximative
To Grant or Not to Grant: Injunctions in the World of Standard Essential Patents
Full text linkCompetition law is a complex law that is ever evolving and finds itself face to face not only with difficult theories of economics and market definition but also with intellectual property law. This interaction between Competition law and Intellectual Property law can be starkly seen in the world of Standard Essential Patents. With the increase in investment in innovation and knowledge, there has been an increase in technological advancements and inventions such as in the field of electronics communications and networks. Subsequently, this has led to the rise in the importance of interoperability. This is where standards, standard-setting organizations and standard essential patents become important. It may seem, especially in this context, that competition law and intellectual property law are in conflict. However, that is necessarily not the case. In this paper, a small aspect of this conflict will be analysed: – whether injunctions should be granted for FRAND-encumbered standard essential patents or not. For this, global trends and the Indian scenario have been studied. The study concludes by suggesting a balance be maintained between both the laws and between the rights of the standard essential patent holder and the standard implementer
A liberal infrastructure in a neoliberal world: the Italian case of GARR
Full text linkThis paper aims to outline some issues concerning the interaction, in European Union law, between data policy, university regulation, open science, intellectual property and infrastructure policy. On the one hand, such issues primarily regard intellectual property: exclusive rights deriving from copyright and related rights, patents, trademarks, and trade secrets. On the other hand, they also concern forms of exclusive control on data that are not strictly related to intellectual property but enhanced by the control on technology and infrastructure. This exclusive control can accompany or be independent from the protection of intellectual property conferred by law.
To make science open and to limit the market power of intellectual monopolies and oligopolies, restricting and reshaping intellectual property rights on data is not enough. It is also necessary to create or to revive public infrastructures and to implement open standards for texts, data, and code. An example of a public infrastructure for a university is the Italian consortium GARR, which during the COVID-19 pandemic contributed to anchor the local debate about academic and teaching freedom to an actual and viable alternative, protecting independent and public knowledge not just de jure but de facto as well
Protection against Disinformation on the Internet: A Portuguese Perspective
Full text linkDisinformation, largely enhanced by
the advent of the Internet and social networks, is one
of the most serious challenges to the proper functioning of democratic systems today. In societies
based on freedom of expression, protection against
disinformation raises complex problems of reconciling of values. This has been highlighted in particular by recent developments in Portuguese law. This article presents an overview of these issues and of
the extent to which tort liability may be utilized under Portuguese law as a potential means of protection against disinformation