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

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Latest documents

• Comment of the European Copyright Society on the Implementation of the Extended Collective Licensing Rules (Arts. 8 and 12) of the Directive (EU) 2019/790 on Copyright in the Digital Single Market
• 3D Digitisation of Cultural Heritage Copyright Implications of the Methods, Purposes and Collaboration

  3D technology is increasingly used in the digitisation of cultural heritage and while parties engaging in such projects need copyright as an incentive, the copyright status of such 3D models are unclear. It is usually assumed they would not be protected, as the scans of existing objects are less likely to be original compared to the 3D models created from scratch. However, it is often overlooked that these projects vary greatly in terms of the chosen method (whether it is laser scanning or photogrammetry), the project’s purpose (if it is for identical copying or if there is any restoration or creative contribution involved) and the collaboration of different people (ranging from employees to volunteers). This article will discuss the copyright implications of the chosen method, purposes and the level of collaboration, in order to show that each of these factors impact the category, originality and the authorship of the resulting work. It will be argued that it is possible, and in some instances very likely, for 3D projects to lead to protectable outcomes under the EU copyright law.

• Conceptualizations of the controller in permissionless blockchains

  The relationship between blockchain and the General Data Protection Regulation (hereinafter GDPR) is often described as problematic. This article addresses one of the problems blockchain faces: who is/are the controller(s) in a blockchain context? This article demonstrates that it is particularly difficult to identify the controller in blockchain applications that are integrated in the core code of a permissionless blockchain. The P2P character of blockchains, with its broad distribution of responsibilities, makes it difficult to ascertain who is able to determine purposes and means of the processing of data. In order to structure the discussion, this article develops three conceptualizations of cooperation within a blockchain. These conceptualizations give different perspectives on the relations between the actors in a blockchain that are potential controllers. The article identifies who is most likely to be the controller in the different conceptualizations and gives indications about the extent to which the controllers are able to exercise their responsibilities. A problem is that an adequate exercise of responsibility requires coordination within the blockchain. However, the system that normally takes care of coordination in a permissionless blockchain - the crypto-economic incentive system - is at present not able to provide adequate data protection.

• Comment of the European Copyright Society on the Implementation of Art. 14 of the DSM-Directive 2019/790
• The Quality of Law: How the European Court of Human Rights gradually became a European Constitutional Court for privacy casest

  Until very recently, the European Court of Human Rights was willing to assess whether Member States’ executive branch had operated on a legal basis, whether national courts had struck a fair balance when adjudicating cases, and whether Member States had a positive obligation to ensure adequate protection of citizens’ human rights. One thing it did not assess however, was whether Member States’ legislative branch had respected the principles of the rule of law and the minimum requirements of good law-making. That is, until recently. Propelled by cases revolving around mass surveillance activities, in just a small number of years, the Court has undergone a revolutionary transformation and now formally assesses the quality of Member States’ laws and even advises Member States’ legislative branch on how to amend its legal system in order to be Convention- compliant. Doing so, it has gradually turned into a European Constitutional Court, in particular for privacy cases.

• Datenzugang, Verbraucherinteressen und Gemeinwohl, Bericht über die Verbraucherrechtstage 2019 des Bundesministeriums der Justiz und für Verbraucherschutz in Berlin, 12. und 13. Dezember 2019

  This report summarizes the conference "Verbraucherrechtstage 2019" ("Consumer Law Days 2019"), organised by the German Federal Ministry of Justice and Consumer Protection on 12 and 13 December 2019 in Berlin. This year’s topic was data access with a special emphasis on consumer interests and public welfare. Leading legal and economic scholars as well as public servants and politicians came together to engage in fruitful discussions on designing the regulatory framework for data access in the digital economy. The conference was divided into four academic panels covering the wider economic and legal framework for data access, existing data access regimes and potential need for amendments. It additionally featured keynote speeches on current political developments and a concluding, policy- oriented panel discussion. An English language conference volume is expected to be published in the course of 2020.

• Comment of the European Copyright Society on Selected Aspects of Implementing Article 17 of the Directive on Copyright in the Digital Single Market into National Law
• Debts, Money, Intellectual Property, Data and the Concept of Dematerialised Property

  Debts, (electronic) money, intellectual property, and, in principle, data and digitised objects (if ownership rights are to be recognised for these), can be conceptualised as versions of the general principle of dematerialised property. This article discusses first the concept of dematerialised property and its application to debts, money and intellectual property. Then it deals with the idea of ownership of data within traditional property concepts. While data ownership can theoretically be accommodated fairly easily within the framework of dematerialised property, there are several reasons, both theoretical and from a legal policy perspective, which make the introduction of data ownership modelled upon conventional (intellectual) property rights problematic.

• Editorial
• Comment of the European Copyright Society Addressing Selected Aspects of the Implementation of Articles 18 to 22 of the Directive (EU) 2019/790 on Copyright in the Digital Single Market

Featured documents

• Against the Dehumanisation of Decision-Making - Algorithmic Decisions at the Crossroads of Intellectual Property, Data Protection, and Freedom of Information

  This work presents ten arguments against algorithmic decision-making. These revolve around the concepts of ubiquitous discretionary interpretation, holistic intuition, algorithmic bias, the three black boxes, psychology of conformity, power of sanctions, civilising force of hypocrisy, pluralism,...

• Big Data in the Insurance Industry: Leeway and Limits for Individualising Insurance Contracts

  With the advent of big data analytics, the individualisation of mass market insurance policies has become commercially attractive. While this development would have positive economic effects, it could also undermine the principle of solidarity in insurance. This paper aims to outline the different...

• Contracting Around Privacy: The (Behavioral) Law and Economics of Consent and Big Data

  European privacy law rests on the implicit assumption that consent to the processing of personal data and the analysis of Big Data is a purely individual choice. Accordingly, privacy lawyers mainly focus on how to empower users to make free and informed choices, for instance through debiasing and...

• Data-Related Aspects of the Digital Content Directive
• The Quality of Law: How the European Court of Human Rights gradually became a European Constitutional Court for privacy casest

  Until very recently, the European Court of Human Rights was willing to assess whether Member States’ executive branch had operated on a legal basis, whether national courts had struck a fair balance when adjudicating cases, and whether Member States had a positive obligation to ensure adequate...

• Oblivion, Erasure and Forgetting in the Digital Age

  In light of the recent European Court of Justice ruling (ECJ C-131/12, Google Spain v. Spanish Data Protection Agency), the “right to be forgotten” has once again gained worldwide media attention. Already in 2012, when the European Commission proposed a right to be forgotten, this proposal received ...

• Ten Questions for Future Regulation of Big Data: A Comparative and Empirical Legal Study

  Much has been written about Big Data from a technical, economical, juridical and ethical perspective. Still, very little empirical and comparative data is available on how Big Data is approached and regulated in Europe and beyond. This contribution makes a first effort to fill that gap by...

• Exploring the Interfaces Between Big Data and Intellectual Property Law

  This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively...

• Facebook's Real Name Policy: Bye-Bye, Max Mustermann?

  Facebook requires all members to use their real names and email addresses when joining the social network. Not only does the policy seem to be difficult to enforce (as the prevalence of accounts with people’s pets or fake names suggests), but it may also interfere with European (and, in particular, ...

• The Implementation of the Media Services Directive by National Regulatory Authorities: National Responses to Regulatory Challenges

  The Audiovisual Media Services Directive (AVMSD) which regulates broadcasting and on-demand audiovisual media services is at the nexus of current discussions about the convergence of media. The Green Paper of the Commission of April 2013 reflects the struggle of the European Union to come to terms...