JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law
- DIPP. Digital Peer Publishing
- Publication date:
- Nbr. 10-2, October 2019
- Nbr. 10-1, May 2019
- Nbr. 9-3, December 2018
- Nbr. 9-2, October 2018
- Nbr. 9-1, May 2018
- Nbr. 8-4, December 2017
- Nbr. 8-3, November 2017
- Nbr. 8-2, September 2017
- Nbr. 8-1, April 2017
- Nbr. 7-3, December 2016
- Nbr. 7-2, September 2016
- Nbr. 7-1, May 2016
- Nbr. 6-3, December 2015
- Nbr. 6-2, September 2015
- Nbr. 6-1, May 2015
- Nbr. 5-3, December 2014
- Nbr. 5-2, July 2014
- Nbr. 5-1, January 2014
- Nbr. 4-3, December 2013
- Nbr. 4-2, August 2013
- 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- sharing platforms extract from creative content and the revenue returned to the copyright-holders. This article argues that the new rules are misguided, misconceiving the real problems afflicting modern copyright. These are the proliferation of copyright infringement online in general - not only through content- sharing platforms - and the current piecemeal harmonisation of the rules on the liability of the intermediaries whose services are used to access and disseminate copyright-protected content. The current outdated and fragmented EU legal framework is ill-equipped to address these problems. Instead, it creates legal uncertainty for users and intermediaries in the online environment, while also failing to compensate creators fairly. The new rules will not change this. This article examines the pre-DSMD acquis and proposes a better solution than Article 17, consisting of two key changes: (a) the introduction of a harmonised EU framework for accessory liability for third party copyright infringement; and (b) the adoption of an alternative compensation system for right-holders covering non-commercial direct copyright use by the end-users of certain online platforms.
- 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 sharing providers (CSSPs) at risk if they do not successfully implement upload-filters as it is only in exceptional situations that CSSPs will not be required to use these filters. Thus, article 17 DSM leads to a situation where nearly any company offering content-sharing services will be required to implement filtering tools in order to avoid the DSM’s direct liability regime. Having access to a strong upload-filter is therefore essential for CSSPs to be able to remain competitive in the new DSM era. However, only big tech companies have the financial power, technological knowledge and internal structure necessary to develop their own competitive upload-filter, which thus gives them an advantage over small and mid-sized CSSPs, as they most likely won’t have the means to develop their own upload-filter. While these smaller CSSPs will have the option to license the required filters from third-party providers like Audible Magic, they may not all be able to afford such provider’s services. In any event, there is a risk that small and mid-sized CSSPs will not have access to upload-filters. However, due to the technological limitations of upload-filters, even the most sophisticated filtering tools will most likely lead to an important number of false positives, which, in turn, will cause the over-blocking of a substantial amount of non-infringing content in the EU. These false positives will have to be reviewed by humans, since maintaining an effective and expeditious complaint and redress mechanism is required by article 17(9) DSM. The requirements of having an efficient upload-filter as well as human review of false positive cases will have an adverse financial impact on the big tech companies, but it is the small and midsized CSSPs that will most feel the blow. As a result, a likely unintended consequence of article 17 DSM is that it indirectly provides the big tech companies a competitive advantage over smaller CSSPs, who may end up being pushed out of, or prevented from entering, the market due to their inability to meet article 17 DSM´s requirements. This competitive advantage for big tech companies is a negative side-effect that will hurt competition and may lead to a greater market concentration in the EU amongst CSSPs. This appears to be a very expensive price to pay in the attempt to close the value gap.
- Recht der öffentlichen Werkwiedergabe im harmonisierten Urheberrecht
This article analyses the criteria which the European Court applies to interpret the right of communication to the public. It shows that the criteria that determine the concepts "public" and "act of communication" are not adequate to outline this right. The concept "public" remains vague because the applied criteria do not make clear under which conditions an act of communication is directed to a private or public group. The concept "act of communication" is unspecific because it fails to distinguish the right of communication to the public from the distribution right. The jurisdiction of the European Court neglects to acknowledge that the granted exclusive rights of authors are not only rights to prohibit the use of their works, but primarily to authorize them. Authors should be able to control the exploitation of their works and negotiate a fair remuneration. It is to be hoped that the recently adopted Directive 2019/790 on copyright and related rights in the Digital Single Market, which harmonizes the European copyright contract law, will help to eliminate these deficits. Dieser Beitrag unterzieht die Kriterien in der Rechtsprechung des EuGH zum Recht der öffentlichen Wiedergabe einer kritischen Analyse. Es soll gezeigt werden, dass die zum Begriff der Öffentlichkeit und der Wiedergabe entwickelten Einzelkriterien nicht geeignet sind, dieses Recht adäquat zu konturieren. Der Begriff der Öffentlichkeit bleibt unbestimmt, da die dafür entwickelten Kriterien keinen Beitrag dazu leisten, wann sich eine Wiedergabe an eine private oder öffentliche Gruppe richtet. Der Begriff der Wiedergabe ist konturlos, da er keine Abgrenzung zum Verbreitungsrecht liefert und vernachlässigt, dass auch die Verwertungsrechte des europäischen Rechts primär Erlaubnisrechte sind, die es dem Urheber ermöglichen sollen, die wirtschaftliche Verwertung seines geschützten Werkes zu steuern und eine angemessene Vergütung für dessen Nutzung aushandeln zu können. Es ist zu hoffen, dass die gerade verabschiedete neue Richtlinie 2019/790 über das Urheberrecht im digitalen Binnenmarkt, die erstmals das Urhebervertragsrecht harmonisiert, diese Defizite beseitigt.
- Game-theoretical Model on the GDPR - Market for Lemons?
In order to evaluate the regulatory effects of the GDPR on the institution of privacy as a public good, a data protection law and economical perspective should be applied. Conveying an economic point of view on the GDPR, we include a gametheoretical model on the rights and duties arising out of the GDPR in order to clarify the possible gametheoretical strategies and discuss the compensatory mechanisms for the problem of asymmetric information between the data controller and the data subject. Furthermore, we point out the concepts of control and the legal construction of "data ownership" as an unsatisfying concept. The fact that services within the scope of the GDPR can rewrite their privacy policies and afterwards request the users’ consent or otherwise lock them out of the service causes undue pressure on the data subject. The recent decision of the Federal Cartel Office of Germany disputed this behaviour and imposed far-reaching restrictions on Facebook. Thus, elements of the GDPR have begun to fall within the remit of competition law and the question of effective regulatory compensation regarding the economic effects in privacy should be addressed. In general, the measurement of privacy risks seems to be the first reasonable step towards empowering actors to make effective decisions.
- 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 regulatory approaches currently in place for dealing with this fundamental challenge by analysing the insurance, anti-discrimination and data protection laws of Switzerland and the U.S./California pertaining to health, renters and automobile insurance. It will be shown that the leeway for individualising insurance contracts is vanishingly small for (mandatory) health insurance on both sides of the Atlantic. By contrast, the two legal systems pursue different regulatory approaches with regard to the other two types of insurance. Renters and automobile insurance are predominantly governed by the freedom of contract principle in Switzerland, whereas in California sector specific regulations significantly limit the informational basis of insurance companies, thereby limiting the leeway for individualisation to a large extent. While Swiss anti-discrimination law hardly restricts the individualisation of insurance contracts, U.S. and California law prohibit such individualisation based on protected characteristics, in this way further restricting the remaining leeway. While privacy laws in the U.S. and California set some significant but rather specific limits for the individualisation of insurance contracts based on the use of personal data, the allencompassing Swiss (and European) data protection law is clearly the most important barrier to individualisation in Switzerland. Namely, it remains unclear whether the processing of personal data for the purpose of individualising insurance contracts may be based on the legitimate interests of the insurer. As a consequence, insurance companies are advised to always obtain their customers’ consent for making individual offers based on big data analytics. The authors conclude that instead of indirectly hindering the individualisation of insurance contracts through data protection law, Swiss (and European) lawmakers should initiate a dialogue involving all stakeholders to determine which sectors of insurance should be dominated by the principle of solidarity and in which sectors and on what informational basis the individualisation of insurance contracts should be allowed.
- Access to Data in Connected Cars and the Recent Reform of the Motor Vehicle Type Approval Regulation
The need for regulatory solutions for access to in-vehicle data and resources of connected cars is one of the most controversial and unresolved policy issues. Last year the EU revised the Motor Vehicle Type Approval Regulation which already entailed a FRAND-like (fair, reasonable, and non-discriminatory) solution for the access to repair and maintenance information (RMI) to protect competition on the automotive aftermarkets. However, the transition to connected cars changes the technological conditions for this regulatory solution significantly. This paper analyzes the reform of the type approval regulation and shows that the regulatory solutions for access to RMI are thus far only very insufficiently capable of dealing with the challenges that come along with increased connectivity; e.g. with regard to the new remote diagnostic, repair and maintenance services. Therefore, an important finding of the paper is that the transition to connected cars will require further reform of the rules for the regulated access to RMI (especially with regard to data access, interoperability, and safety/security issues). However, our analysis also suggests that the basic approach of the current regulated access regime for RMI in the type approval regulation can also be a model for developing general solutions for the currently unsolved problems of access to in-vehicle data and resources in the ecosystem of connected driving.
- Different 'Rules of the Game' - Impact of National Court Systems on Patent Litigation in the EU and the Need for New Perspectives
It seems that the jurisdiction in which a case is litigated has a significant impact on its outcome," professor Lemley has addressed the issue of forum shopping in the US and internationally, and claims that the venue of litigation defines the case outcome. Indeed, patent litigation is highly diverse especially in Europe. This is mainly derived from the following reasons - more globalised Innovation and R&D results in increased cross-border enforcement with some inherent challenges. In addition, the existence of different sets of rules and different national courts that hear the patent infringement and invalidity cases in each European state makes the litigation process quite complex. The country-specific characteristics of patent litigation are considered as an impediment for the development of harmonised EU patent law. Both patentees and alleged infringers, depending on the litigation venue, face legal uncertainties and encounter different outcomes even when the same patented invention is concerned. In light of these differences in national systems and judicial practices, the European Commission in its 2017 Communication Paper on ‘A balanced IP enforcement system responding to today’s societal challenges’, urged the Member States to set up effective mechanisms for IPR enforcement or to improve already existing systems. The article, looking at the specific examples of national judiciaries, outlines the differences between the enforcement mechanisms and case law across the Member States, it discusses the impact of the cross-border patent enforcement in the EU, and finally, it suggests possible solutions on an institutional and methodological level for European judiciary aiming at elimination of fragmented patent litigation and fostering an innovation eco-system in the EU.
- Kraus, Daniel/Obrist, Thierry/Hari, Olivier, Blockchains, Smart Contracts, Decentralised Autonomous Organisation and the Law
- Response to the 2018 Sarr-Savoy Report: Statement on Intellectual Property Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and associated materials
- 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,...
- 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...
- 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...
- 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...
- Privacy Design': Nice-to-have or a Necessary Principle of Data Protection Law?
Privacy by Design is a term that was coined in 1997 by the Canadian privacy expert and Commissioner for Ontario, Dr Ann Cavoukin, but one that has recently been receiving more attention in terms of its inclusion as a positive requirement into EU, US and Canadian data protection frameworks. This...
- Privacy as human flourishing: Could a shift towards virtue ethics strengthen privacy protection in the age of Big Data?
Privacy is commonly seen as an instrumental value in relation to negative freedom, human dignity and personal autonomy. Article 8 ECHR, protecting the right to privacy, was originally coined as a doctrine protecting the negative freedom of citizens in vertical relations, that is between citizen and ...
- Liability under EU Data Protection Law: From Directive 95/46 to the General Data Protection Regulation
This article analyses the liability exposure of organisations involved in the processing of personal data under European data protection law. It contends that the liability model of EU data protection law is in line with the Principles of European Tort Law (PETL), provided one takes into account...
- Designing Competitive Markets for Industrial Data - Between Propertisation and Access
As part of the project to establish a Digital Single Market, the European Commission has launched a ‘Free Flow of Data’ initiative. This initiative is meant to enhance the growth potential of the emerging data economy, which is characterised by the digitisation of production (smart factories) and...
- Where is the Harm in a Privacy Violation? Calculating the Damages Afforded in Privacy Cases by the European Court of Human Rights
It has always been difficult to pinpoint what harm follows a privacy violation. What harm is done by someone entering your home without permission, or by the state eavesdropping on a telephone conversation when no property is stolen or information disclosed to third parties? The question is...
- Welcome to the Jungle: The Liability of Internet Intermediaries for Privacy Violations in Europe
In Europe, roughly three regimes apply to the liability of Internet intermediaries for privacy violations conducted by users through their network. These are: the e-Commerce Directive, which, under certain conditions, excludes them from liability; the Data Protection Directive, which imposes a...