JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
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Open Educational Resources through the European lens: Pedagogical opportunities and copyright constraints
Full text linkThe adoption of Open Educational Resources (“OERs”) in schools and universities is a phenomenon also on the rise in Europe. Increasingly relying on digital, open, freely adaptable materials that are specifically designed for educational purposes is not only a response to the disruptions brought by the COVID-19 pandemic, but a consistent policy step towards an inclusive, diverse, and quality education in the EU. The article examines the potential and constraints of OERs from both a pedagogical and legal perspective. It demonstrates how these types of resources are fit for purpose to achieve diversity, knowledge co-creation, and student agency in educational ecosystems. It also flags points of weakness of the EU copyright legal framework, such as the lack of harmonization of rules on co-authorship and adaptation, which need to be tackled to fully enable OER-enabled pedagogies across the Union
The Out-of-court dispute settlement mechanism in the Digital Services Act: A disservice to its own goals
Full text linkThe Digital Services Act (DSA), proposed by the EU Commission, introduces extensive content moderation rules for online platforms. Under Article 18 DSA, users whose content has been blocked or removed or whose account has been suspended by the platform are entitled to select a certified out-of-court dispute settlement body to resolve their disputes with the service provider. The author describes context and parties of online speech, examines conditions and consequences of this redress mechanism, and concludes that the proposed provision is flawed in several ways: it does not approximate different regulation, but promotes fragmentation and creates legal uncertainty; it does not provide criteria or standards for the complex factual and legal determinations and balancing of rights in the area of online speech; and with the incentives set by this regulation, it opens the field for a race to the bottom. While out-of-court dispute settlement mechanisms usually aim at a consensual solution, placing emphasis on interests, rather than on the legal positions of the parties or on the rights asserted, free speech disputes are strictly normative and do not lend themselves to a settlement by private bodies, but are reserved for the judiciary. Moreover, most platforms have established appeals mechanisms for their users already allowing for a second review. By further extending this redress mechanism to decisions based on the platforms’ community standards, the DSA frustrates existing ‘flagging’-systems established by the platform providers, and thereby doing a disservice to its own goals. In the outlook the author proposes to modernize and build on the existing infrastructure of the judiciary to address needs of private persons to pursue their rights and to ensure the quality of process and decision, rather than duplicating the existing court system by adding a redress system of private alternative dispute resolution (ADR) bodies
NFTs And Copyright Quandary
Full text linkNFTs have garnered massive investor attention in the last few years. While the technology is still at its nascent stage, the massive price pump for major NFTs such as Dragon kitty, Shatner’s digital cards, etc. show that NFTs are going to be with us for a very long time along with other blockchain innovations. The present article focuses on the right to create NFT as part of the statutory bundle of rights provided under the Copyright Act. The article discusses the copyright jurisprudence through historical lenses to exhibit that the copyright law has always been in a state of constant evolution encompassing wide variety of technological innovation on one hand and protecting the rights of the creators on the other. The article addresses questions such as if NFTs can be copyrighted, whether creation of an NFT without authorization amounts to copyright infringement, whether there exists a right to create an NFT among others. Finally, the article concludes the discussion by suggesting various ways in which the NFTs can be availed without the hullaballoo of copyright infringement by introduction of delimitation of rights and liabilities clauses within smart contracts, and by recognizing the right to create NFT as part of the copyright framework
Artificial Intelligence and the re-imagination of inventive step
Full text linkArtificial intelligence alleviates the work of the inventor. It may even in a distant future take the place of the human inventor. Legal literature has amply reflected about the implications of AI for the requirement of inventive step. In the literature, much attention has been paid to the algorithms of AI since the role they play seems to be the most simi¬lar to that of the human inventor. Although it cannot be completely ruled out that the human inventor will eventually be displaced, it seems to be something for a distant future. This article analyses the implications for the inventive step requirement and concludes that the introduction of a machine-skilled in-the-art as a criterion figure creates many new problems and that in the foreseeable future, existing criteria may function better than is sometimes suggested
Great expectations: the Facebook case and subsequent legislative approaches to regulate large online platforms and digital markets
Full text linkIn recent years, the accumulation and entrenchment of power by a few large firms in the digital markets sector and the complementary decrease in the level of competition has become visible around the world. This could likely result in negative consequences for potential competitors, individuals and businesses that interact with these firms. In order to address this challenge, several jurisdictions have initiated the development of legislative tools to regulate these large firms. The first regulation of this type has been enforced by the German legislator and could therefore serve as a reference for other jurisdictions. In advance of practical experience, this paper will conduct a theoretical analysis of potential structural and data-related issues arising from this regulation. It will deduce that the regulation successfully addresses data-related concerns which have previously been confronted in the so-called Facebook case. The paper will also identify shortcomings in structural aspects, which will be confronted with a comparison to the UK approach for a similar regulatory tool. The results of the comparison will be summarised in a list of recommendations with the aims to improve the German regulation and to serve as guidance for similar approaches in other jurisdictions
Recommenders you can rely on: A legal and empirical perspective on the transparency and control individuals require to trust news personalisation
Full text linkThis article explores the role law can play to support trust in the context of news personalisation. The need to ensure trust in the face of technological changes in information dissemination is an important aspect of both recent horizontal legislation such as the Digital Services Act, as well as context-specific specific efforts surrounding for example disinformation. In these legal discussions, however, what trust is, why law should promote it, and what concrete measures are suitable to do so often remain ambiguous. This raises suspicions over whether trust is simply a selling point of traditional legal measures, and if not, what concrete role law can and should play to promote trust. This article focuses on the role control and transparency measures can play to safeguard trust in organisations that use news personalisation. It first analyses how trust should be understood in the context of news personalisation, how media regulation has traditionally supported trust, and how it should continue to do so in the context of news personalisation. It then draws on a conceptual framework of transparency measures in the context of news personalisation to survey how important different transparency and control measures are to the individuals who place trust in organisations that use personalisation. Law’s current focus on informing individuals about and empowering them to stop personalisation does not account for the importance of enabling individuals to control how news is personalised
From Cyborgs to Quantified Selves: Augmenting Privacy Rights with User-Centric Technology and Design
Full text linkTranshuman enhancements—technologies that boost human capabilities—are everywhere: bodily implants, wearables, portable devices, and smart devices embedded in everyday spaces. A key feature of these technologies is their capacity to generate data from the user side and ‘give back’ that data to users in the form of personalized insights that can influence future choices and actions. Increasingly, our choices are made at the shifting interface between freedom and data, and these enhancements are transforming everyone into human-digital cyborgs or quantified selves.
These personalized insights promise multiple benefits for diverse stakeholders, most obviously greater self-understanding, and better decision-making for end-users, and new business opportunities for firms. Nevertheless, concerns remain. These technologies contribute to the emergence of new forms of post-Foucauldian surveillance that raise difficult questions about the meaning, limits, and even possibility of privacy.
As personal choice becomes increasingly dependent on data, traditional legal conceptions of privacy that presuppose an independent and settled sphere of private life over which an autonomous ‘person’ enjoys dominion become strained. Transformations in the practice of privacy are occurring, and we are experiencing the augmentation of a narrative of the protection of privacy rights of persons with a more situational, human-centered, and technology-driven conception of privacy-by-design. This article describes such privacy enhancing technologies and raises the question of whether such an approach to privacy is adequate to the complex realities of the contemporary data ecosystem and emerging forms of digital subjectivity
AI as an Inventor: Has the Federal Court of Australia Erred in DABUS?
Full text linkThe emergence of advanced Artifi¬cial Intelligence (AI) technologies has caused an inter¬national debate as to whether inventions generated by AI technology without human intervention should be protected under patent law and who should own them. These questions have been discussed in a re¬cent Federal Court of Australia decision in Thaler v Commissioner of Patents. In that judgment, Beach J recognised that some AI has the ability to auton¬omously invent and that such AI-generated inven¬tions could be protected under patent law. His Hon¬our held that, in such instances, an AI system could and should be listed as an inventor in a patent appli¬cation. This article challenges the decision by argu¬ing that, even in the case of the most sophisticated AI systems, these systems are not autonomous in the inventive process as humans provide significant contributions to the very system that leads to the in¬ventive output. Secondly, I contend that the discus¬sion on the need of patent protection for AI-gener¬ated inventions (if it were possible at all) is misplaced and not sufficiently comprehensive. Finally, the ex¬panded application of the Patents Act 1990 (Cth), and especially s 15(1), to accommodate ‘AI inventors’, is an over-reach that is not consistent with the current law. The article recommends that the AI inventorship question should be decided not by courts, but by a policy making body and all interested stakeholders should be engaged in the discussion on this impor¬tant matter
Transparency Reports of European CMOs: Between legislative aspirations and operational reality – comparability impending factors and solution strategies
Full text linkDirective 2014/26/EU set out the right of rightholders to authorise collective manage¬ment organisations (CMOs) within the European Eco-nomic Area that are best suited to their needs. To this end, the Directive established a harmonised gov¬ernance framework for CMOs to ensure, among other things, transparency towards their stakeholders. Transparency is a key factor for inducing competition and efficiency in the collective rights management (CRM) market. For this reason publishing various business details became mandatory for CMOs in the EU. Especially information on “categories of rights” and “type[s] of use” are of great relevance for right¬holders and licensees, as these are subject-matters of their interaction with CMOs. However, evaluating the disclosure of information on these subjects in the transparency reports of 21 music copyright CMOs of the EU, we find the terminology and the structure of information to be very heterogeneous. This makes comparative assessments very labour-intensive, po¬tentially biased, inaccurate and highly inefficient. To this end, we present the use of controlled vocabular¬ies as a strategy to harmonise the way this informa-tion is reported