JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law

Issue Number

Latest documents

• Editorial
• A Plea for Digital Exhaustion in EU Copyright Law

  With the Dutch referral of the Tom Kabinet case (C-263/18) in July 2017, the CJEU will soon have its final say on the admissibility of digital exhaustion under Art. 4(2) InfoSoc. Until now, years of national decisions and the CJEU’s obiter dicta have provided a patchwork of inconsistent answers, and seemingly rejected the extension of the principle to digital works upon a strict literal interpretation of EU and international sources. Yet, the changed characteristics of digital markets have outdated the InfoSoc Directive and the classificatory dichotomies (sale vs license, distribution vs communication to the public, good vs service) on which the boundaries of exhaustion have been drawn. At the same time, the exclusion of digital exhaustion has tilted the balance between copyright and the protection of competition, secondary innovation, fundamental freedoms and other conflicting fundamental rights, while the direct and indirect rulings on the matter have departed from the principles developed in the earlier CJEU’s case law on Community exhaustion and caused systematic and teleological inconsistencies in the judicial development of EU copyright. Building on these premises, and on the basis of a set of legal and economic arguments, this paper advocates for the introduction of a general principle of digital exhaustion in EU copyright law and, awaiting an unlikely legislative intervention, it proposes two routes to achieve its judicial recognition: one uses a contextual/teleological interpretation to maintain the effectiveness of Article 4(2) InfoSoc; the other theorizes the possibility of a claim of invalidity of the provision under Article 52(1) CFREU, for disproportionate violation of Articles 7, 16 and 17 CFREU.

• Facilitating Access to Out-of-Commerce Works in the Digital Single Market

  Renaissance genius Pico della Mirandola dreamed of making all knowledge accessible in one place. The Proposal for a Directive on Copyright in the Digital Single Market could help Pico’s dream come true. The proposal, inter alia, aims at facilitating wider access to Europe’s cultural heritage through the introduction of a mechanism enabling the use of out-of-commerce works by cultural heritage institutions in the digital environment. After examining the key elements of this mechanism, this Opinion critically discusses the definition of the scope of search required for establishing the out-of-commerce status of works, the requirement of the representative character of collective management organisations, and the non-application of the mechanism to third-country works. This Opinion also looks into the coordination between the CJEU’s Soulier decision and the Directive Proposal, with special emphasis on the sufficiency of general publicity measures, and the creation of the EUIPO’s out-of-commerce online database. In conclusion, while being supportive of the proposal and the idea of promoting more access to out-of-commerce works, this Opinion provides some suggestions for improving the text.

• The Intersection of 3D Printing and Trademark Law

  The paper discusses the possible impact of 3D printing technology on a trademark protection system and argues that, despite some obstacles, selling certificated 3D-printable files by companies can be a reasonable new approach in order to face up to the changes brought about by this new technology. 3D printing (three-dimensional printing, counter crafting), perceived by some as a disruptive technology, is an additive manufacturing technique to create objects by joining or printing layer upon layer of material based on digital models. Certain features of this technology such as democratization and dissemination of manufacturing process, participation of hobbyists, the role of CAD files, the possibility of introducing modifications into a file, and the worldwide scope of 3D printing based on the Internet connectivity may have an impact on trademark protection to a certain extent. The paper analyzes the cases of this impact and suggests possible solutions: selling 3D-printable certificated files by trademark owners; price regulation; and better educational programs on counterfeit goods. From the hard law perspective, the solution may lie in establishing clear rules of liability for intermediary online platforms.

• Intellectual Property under the Scrutiny of Investor-State Tribunals

  In 2009, C.S. Gibson was suggesting that: "With this early coverage of intellectual property in BITs, it is perhaps surprising that there has yet to be a publicly reported decision concerning an IPRcentered investment dispute. Given the trajectory of the modern economy, however, in which foreign investments reflect an increasing concentration of intellectual capital invested in knowledge goods protected by IPRs, this could soon change" (Gibson, ‘A Look at the Compulsory License in Investment Arbitration’, 2009). A couple of years later, the first investment cases dealing with IP issues were made public. In this context, this paper first addresses the conditions that have to be fulfilled in order to bring intellectual property claims in investment arbitration, by touching upon the question of the definition of an investment in theory and in practice. It also tries to shed light on some of the implications of recent arbitral awards touching upon this interaction between intellectual property and investment protection, from a legal and regulatory perspective. On the other hand, the specific situation of the European Union is scrutinized, and in particular the project put forward by the European Commission to adapt the dispute settlement system for the protection of investments.

• A Recent Exploration of Accessing Public Sector Information

  The rapid technological advancements we are witnessing have undoubtedly had a great impact on several aspects regarding freedom of information, and the concept of increased governmental transparency on a global scale seems to be inevitable. But how can certain states, governments and societies cope with these new possibilities and challenges? Do state authorities worry about the weakening of their information monopoly? The author wishes to introduce ideas related to these questions through providing an examination of the theoretical and legal background and case law related to the concept of freedom of information; more specifically, the right to access public sector information at international and European Union levels, as well as the development and current situation in Hungary. As a result of the regulatory attitude and policies shown in recent years, the right to access public sector information has been weakened in Hungary, thus the specific aim of the article is to highlight certain amendments that have been made to related laws and examine them in light of the theoretical foundations, as well as their possible adverse effects exerted on the pursuit towards increased governmental transparency.

• Hard Drive Crash

  This analysis considers the potential impacts of completely self-driving vehicles on vehicular liability. This begins with examining how such vehicles might be treated under an evolution of the current liability system, and the potential results of attributing liability to an operator, the vehicle itself, different manufacturers, and a government entity. Discussion then turns to how liability might be altered prospectively in order to incentivize outcomes beneficial to both consumers and creators from a public policy perspective. This includes a proposal of how such a proposal might be structured. Focal points include public policy, social acceptance, and potential incidental problems raised.

• Data Governance in Connected Cars

  Through the application of the technological solution of the "extended vehicle" concept, the car manufacturers can capture exclusive control of the data of connected cars leading to serious concerns about negative effects on competition, innovation and consumer choice on the markets for aftermarket and other complementary services in the ecosystem of connected and automated driving. Therefore, a controversial policy discussion has emerged in the EU about access to in-vehicle data and the connected car for independent service providers in the automotive industry. This paper claims that this problem should be seen as part of the general question of the optimal governance of data in the ecosystem of connected and automated mobility. The paper offers an overview about this policy discussion and analyzes this problem from an economic perspective by utilizing a market failure analysis. Besides competition problems (especially on markets for aftermarket and other services in the connected car) and market failures in regard to technological choice (extended vehicle vs. interoperable on-board application platform), information and privacy problems ("notice and consent" solutions) can emerge, leading to the question of appropriate regulatory solutions. The paper discusses solutions through data portability, data rights, competition law, and recommends a sector-specific regulatory approach.

• Gustavo Ghidini, Rethinking Intellectual Property
• Towards a Purposive Copyright System

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