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

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Latest documents

• Editorial
• Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics
• Getting Data Subject Rights Right A submission to the European Data Protection Board from international data rights academics, to inform regulatory guidance

  We are a group of academics active in research and practice around data rights. We believe that the European Data Protection Board (EDPB) guidance on data rights currently under development is an important point to resolve a variety of tensions and grey areas which, if left unaddressed, may significantly undermine the fundamental right to data protection. All of us were present at the recent stakeholder event on data rights in Brussels on 4 November 2019, and it is in the context and spirit of stakeholder engagement that we have created this document to explore and provide recommendations and examples in this area. This document is based on comprehensive empirical evidence as well as CJEU case law, EDPB (and, previously, Article 29 Working Party) guidance and extensive scientific research into the scope, rationale, effects and general modalities of data rights

• Responsible Information Sharing Converging boundaries between private and public in privacy and copyright law

  Copyright Law and Privacy Law both grant individuals exclusive control over the dissemination of expression or personal information, respectively. A number of criteria emerged in the ‘new public' jurisprudence of the CJEU based on Article 3 Directive 2001/29/EC (InfoSoc Directive), that determine how right holders can retain control over copyright-protected works after their first publication. The Court established that the scope of a public in copyright law depends, among other factors, on the subjective intention of the person who exposes a work to an audience. The case law suggests that several ‘publics' coexist, and that the exposure of works to one of these ‘publics', does not automatically justify exposure to other public spheres. The exposure of these works to other ‘publics', still remains under the control of the right holder. It is suggested that the notion of a "new public" can be instrumental in better understanding the delimitation of public and private space in EU privacy law. The authors propose a concept of privacy as controlled public exposure, modelled on the notion of a "new public" under Article 3 of the Information Society Directive, and inspired by recent jurisprudence of the ECtHR on Article 8 ECHR, which protects the right to respect for private life. This, the authors argue, leads to an expansion of private spheres in public life

• Catching sight of a glimmer of light: Fair remuneration and the emerging distributive rationale in the reform of EU copyright law

  In the haze of highly polarized debates on the recently adopted EU Directive on Copyright in the Digital Single Market (CDSM), its focus on the notion of fair remuneration has passed over rather quietly. Three provisions in the Directive deal specifically with the fair distribution of revenue from online platforms to producers and, in turn, from producers to authors. Taking the cue from these new rules, the article investigates the restrictive interpretation of fair remuneration as fairly distributed income among right holders. The analysis purports to unearth the underlying distributive rationale of the new Directive as well as identify traces of it throughout the evolution of EU copyright law. By this token, the controversial CDSM Directive proves a valid opportunity to shed new light on the objectives of EU copyright law and assess its modernization in light of a distributive perspective

• 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

• 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.

Featured documents

• 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...

• 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...

• 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,...

• 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...

• 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...

• 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...

• Standards for Duty of Care? Debating Intermediary Liability from a Sectoral Perspective

  The EU’s current regulatory framework for the content liability of online intermediaries was created in 2000 with the E-Commerce Directive (ECD). Already in those days, during the run-up to the ECD, there was an intense debate regarding whether a light-touch approach or more stringent content...