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

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Latest documents

• Editorial
• Cutting Back Patent Over-Enforcement - How to Address Abusive Practices Within the EU Enforcement Framework

  The debate over the degree of flexibility at the disposal of national courts in Europe to grant, deny, or tailor, injunctive relief in patent litigation seems to be a never-ending story. In most jurisdictions, absent exceptional circumstances, findings of infringement lead national courts to grant, quasi-automatically, an injunction. However, some scholars as well as industry players, have argued that in light of recent changes in litigation behaviour as well as technology developments, a general principle of proportionality should play a more prominent role vis-à-vis injunctive relief. It is in particular with reference to Art. 3(2) of the Enforcement Directive that such claims have been made. If UK courts have been inclined to consider that, under certain circumstances, a balance of interests may take place before granting a permanent injunction, German courts on the other hand have firmly stood on the ground that the principle of proportionality should not interfere with the right of patent holders to obtain such remedy. However, most recently, the German Ministry of Justice published a draft amendment to the German Patent Act providing some guidance on the role of proportionality vis-à-vis the rules of injunctive relief. The issue of flexibility and injunctive relief is symptomatic of a broader debate regarding potential over-enforcement practices by right holders and the means to overcome or reduce the negative effects of these practices. Overall, this article examines how the origins and justifications of the Enforcement Directive, which focus on fighting piracy and counterfeiting, may affect the applicability of the principle of proportionality in the everchanging context of patent law. How national courts have (or have not) relied on different mechanisms to infuse more flexibility in case of over-enforcement practices by right holders. And finally, how the principle of proportionality as well as the principle of the prohibition of abuse of rights may serve national courts in this endeavour of limiting excesses in patent litigation.

• Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU

  This analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerisation and TPMprotected software into their design and function. In utilising software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this residual control held by manufacturers are examined in this analysis. The foregoing raises the question: what are the impediments to establishing a secondary market for repair of products which utilise software TPMs, and what are the implications of those impediments? The structure of the EU’s software TPM framework acts a major impediment to establishing a secondary repair market for these products. The implications of this impediment are both legal and moral. This analysis surveys the development of anti-circumvention law in the international and European contexts before assessing the impact of the US approach to anti-circumvention on global manufacturing and design techniques. In assessing the EU legal framework, the analysis focuses on the inconsequential and distinct legal status given to TPMs which protect software from other types of works. The inability to circulate the means of circumvention acts as a key impediment to establishing a secondary market for repair. Further, the inapplicability of copyright exceptions and limitations to software TPMs, and the legal prohibition on circulation of the means of TPM circumvention, jointly leave little room for proactive policymaking. Through these legal protections, manufacturers can escape the perceived threat posed by TPM circumvention tools and, by extension, undermine independent technicians’ ability to carry out their businesses. In assessing the John Deere case study, the analysis proposes that the refusal to allow circulation of the means of software TPM circumvention may constitute an abuse of a dominant position in the secondary market. In looking to jurisprudence in this area, the analysis explores the degree to which the refusal to provide the means of circumvention could amount to the denial of an essential facility which is indispensable for the secondary repair market. While some distinctions can be drawn between TPM circumvention and the types of intellectual property rights at issue in the EU competition law jurisprudence, the analysis proposes that the market effects are in many ways analogous. The analysis seeks to establish that consumers’ inability to conduct repairs to the products that they own is undesirable for a number of legal, moral and conceptual reasons. By prohibiting self-repair, software TPMs predetermine the relationship between technology, the law and society. This undermines the fostering of a morally responsible and technologically inclined citizenry which engages with and contributes to technological development. The analysis concludes with a call for a review of software TPM protections in the EU along with changes which could alleviate the foregoing market and moral implications while enabling consumers to assert their right to repair.

• Health Data Pools under European Policy and Data Protection Law: Research as a New Efficiency Defence?

  The increasing employment of artificial intelligence and machine learning in the biomedical sector as well as the growing number of partnerships aimed at pooling together different types of digital health data, stress the importance of an effective regulation and governance of data sharing in the health and life sciences. This paper explores the emerging economic reality of health data pools from the perspective of European Union policy and law. The goal of the study is to validate the role of the internal market integration objective in the data protection framework of special categories of data, and thus to unveil the alignment of the General Data Protection Regulation’s research exemption with the broader policy goals of the Digital Single Market Strategy. After having described the phenomenon of health data pools as a primary means to conduct research in digital health markets, the study first contextualizes health data sharing practices at European policy level, with specific reference to the Digital Single Market Strategy. Here, both the digital health sector and the free-flow of information are emerging as strategic areas of European intervention. Against this backdrop, the second section will enquire the regulatory framework regarding the processing of special categories of data for research purposes under the General Data Protection Regulation. As will be demonstrated, this framework partly disavows fundamental rights protection objectives, in order to promote research based on health data and related market objectives.

• Free Speech by Design for the Copyright DSM Directive

  Article 17 of the Directive for Copyright in the Digital Single Market imposes on certain platforms an indirect obligation of algorithmic filtering, while providing a plethora of textual safeguards and guarantees for freedom of speech and legitimate uses. We argue however that this traditional approach of formal safeguards and procedural remedies has proved its inability to effectively protect users’ rights to benefit from exceptions and limitations to copyright on digital platforms. We suggest an alternative approach, “free speech by design”, aimed at embedding a concern for freedom of expression in the design of algorithmic copyright enforcement systems. Informed by CJEU case law (notably the recent Spiegel Online, Funke Medien and Pelham trio), we will assess how such approach can be leveraged to include, in the implementation of the DSM directive, an algorithmic protection for the exceptions for quotation and parody, which are of particular importance for the right to freedom of expression.

• Jacques de Werra (ed.), Accords de technologie/Technology Transactions
• The Liability system of Art. 17 DSMD and national implementation - contravening prohibition of general monitoring duties?

  The article deals with the complex liability system of Art. 17 DSM Directive, the famous "upload filter provision" in copyright law concerning content sharing platforms. The conflict between the prohibition of general monitoring obligations for platform providers derived from European fundamental rights by the CJEU and the obligations of providers are scrutinized. Moreover, possible options for national legislators in order to safeguard fundamental rights of users concerning freedom of speech (and copyright limitations) are discussed

• New types of marks available after the European Union Trade Mark Reform An Analysis in the light of the U.S. Trade mark law

  This article analyzes one of the novelties brought about by the European Union trade mark reform; i.e. the removal of the graphic representation requirement opening opportunities to register new types of marks at the European Union Intellectual Property Office. In this article, the legal requirements for the registration of the non-traditional trade marks under the legal frameworks of the European Union and the United States of America are discussed and the new provisions of the European Union trade mark law on the representation of trade marks are assessed

• Copyright lessons on Machine Learning: what impact on algorithmic art?

  Nowadays, Artificial Intelligence (AI) is described as "the new electricity". Current algorithmic innovation allowed the development of software which enables machines to learn and to achieve autonomous decision making, with limited or no human involvement, in a vast number of applications, such as speech recognition, machine translation and algorithmic creation of works (computer generated art), on the basis of a process widely known as Machine Learning (ML). Within the ML context, machines are repeatedly trained by means of specifically designed learning algorithms that use a corpus of examples in the form of data sets as training material. Very often and, especially in the context of algorithmic creativity, the training material is mainly composed by copyrighted works, such as texts, images, paintings, musical compositions, and others. Machine Learning workflow typically involves the realization of (multiple) reproductions of any protected work used as training material. The present paper aims to assess the extent to which the use of copyrighted works for Machine Learning purposes in the field of algorithmic creativity is controlled by the monopolistic power of the copyright rightholder on that work. The answer to this question will be researched in the context of EU copyright law, by examining the content of reproduction right and exceptions possibly applicable in a typical ML workflow in the field of algorithmic art, before making an overall assessment of the current EU regulatory framework for artistic ML projects, as it is shaped after the DSM Directive 2019/790

• Editorial

Featured documents

• 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...

• Fixing Copyright Reform: A Better Solution to Online Infringement

  The newly-adopted Directive on Copyright in the Digital Single Market (DSMD) will fundamentally reshape EU copyright law. Among its most controversial offerings is Article 17, the socalled "value gap" provision, aimed at solving the alleged mismatch between the value that online content-...

• 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...

• Digital First Sale Doctrine Ante Portas - Exhaustion in the Online Environment

  The purpose of the article is to provide first a doctrinal summary of the concept, rules and policy of exhaustion, first, on the international and EU level, and, later, under the law of the United States. Based upon this introduction, the paper turns to the analysis of the doctrine by the pioneer...

• 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 ...

• New types of marks available after the European Union Trade Mark Reform An Analysis in the light of the U.S. Trade mark law

  This article analyzes one of the novelties brought about by the European Union trade mark reform; i.e. the removal of the graphic representation requirement opening opportunities to register new types of marks at the European Union Intellectual Property Office. In this article, the legal...

• On Upload-Filters and other Competitive Advantages for Big Tech Companies under Article 17 of the Directive on Copyright in the Digital Single Market

  Article 17 of the Directive on Copyright in the Digital Single Market (DSM), with its goal to close the so-called "value-gap", contains several strong incentives to use and further develop filtering technologies. It also introduces a direct liability regime, which puts content-service...

• 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, ...

• Data-Related Aspects of the Digital Content Directive
• 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...