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

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Latest documents

• 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.

• 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.

• 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.

• Secondary communication under the EU copyright acquis after Tom Kabinet: Between exhaustion and securing work's exploitation

  Since the adoption of the InfoSoc Directive, the CJEU has been dealing with a variety of questions on the interpretation of the broad right of communication to the public. A substantial share of the references for a preliminary ruling concerns secondary communication, which relies on communication initially authorised by the right holder. Despite the seemingly clear language of Article 3(3) of the InfoSoc Directive denying the exhaustion of communication right, the Court has occasionally exempted secondary acts from the authorisation of the right holder, relying on the arguments resembling the exhaustion principle of the right of distribution in respect of the tangible copies of a work. In the recent Tom Kabinet judgment, the CJEU denied the direct application of the principle in the case of the resale of e-books facilitated by the Tom Kabinet platform. Whereas the judgment is of significance to the future of the exhaustion principle under the acquis, this article focuses on its broader implications on secondary communication. The article argues that the decision is in line with the developments under the jurisprudence but is by no means a final say on the extent of exclusive control over secondary communication in the digital environment. Besides raising the question of appropriate boundaries of the exclusive rights and their role in the digital markets, the judgment invites the legislator to revise the framework and restore the legal certainty in respect of the scope of exclusive control over the work’s communication to the public.

• 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.

• 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.

• Editorial
• 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
• Comment of the European Copyright Society on the Implementation of Art. 14 of the DSM-Directive 2019/790
• 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

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...

• 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...

• The Death of ?No Monitoring Obligations': A Story of Untameable Monsters

  In imposing a strict liability regime for alleged copyright infringement occurring on You- Tube, Justice Salomão of the Brazilian Superior Tribunal de Justiça stated that "if Google created an ‘untameable monster,’ it should be the only one charged with any disastrous consequences generated by ...

• Responsibility for Data Protection in a Networked World: On the Question of the Controller, 'Effective and Complete Protection' and its Application to Data Access Rights in Europe

  In the current networked world, almost no system in which personal data is processed stands on its own. For example, websites and mobile applications integrate third party services for behavioral targeting, user analytics, navigation, and many other functionalities. Governments build central...

• The Impact of Smart Contracts on Traditional Concepts of Contract Law

  The concept of smart contracts entered the legal discourse only a few years ago, yet the subject has already given rise to remarkably different approaches. While some assume that smart contracts can be fully integrated into existing contract law, others predict that they will mark the beginning of...

• CAD Files and European Design Law

  Three-dimensional printing ("3DP") is an additive manufacturing technology that starts with a virtual 3D model of the object to be printed, the so-called Computer-Aided-Design ("CAD") file. This file, when sent to the printer, gives instructions to the device on how to build the ...

• 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...

• 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...