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

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• A FRAND Regime for Dominant Digital Platforms

  European Copyright Law. The concept must be clarified and given a broad meaning in order to cover both uses which are authorized by the right holders, but are also not restricted by law, by taking into account the legal ideals of fairness and reasonableness. This change must be accompanied by the recognition of all copyright exceptions as jus cogens and the establishment of effective procedural mechanisms to safeguard the enjoyment of lawful users’ rights. innovate. The paper shows that, beyond the application of FRAND in the competition law context, the European Union institutions have consistently used the FRAND regime to ensure access to critical infrastructure or inputs. The FRAND regime has been applied in EU legislation such as standardisation, chemicals, electronic communications framework, public sector information, research framework, vehicles emissions, payment services, credit rating agencies and benchmark regulations. It has proved itself to be a flexible and pragmatic tool, able to apply to different market dynamics and bottlenecks. Drawing out the common elements of this European FRAND access regime, the paper considers how it could be applied as a regulatory solution for dominant digital platforms.

• 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 the end of contract law. The aim of this article is to contribute to the assessment of smart contracts by examining how they can be situated within the traditional Western concept of contract law and how they differ from traditional contracts in the individual phases of a contract’s life cycle. In particular, these findings show that the automated execution of the promises contained in a smart contract, specifically their technical characteristics, lead to an increased significance of the contract drafting phase compared to the execution phase. Among other aspects, smart contracts are considerably more difficult to modify than traditional contracts and they are limited by the fact that the encoding of contracts requires an increased formalization of the contractual terms. On the other hand, the technical architecture of smart contracts offers possibilities ranging from automatic self-help to the enforcement of legally unenforceable agreements. It is precisely this autonomy of smart contracts from existing contract law that finally raises the question of whether an adaptation of contract law will become necessary and what difficulties such an adaptation would face.

• Editorial
• Upload-Filters: Bypassing Classical Concepts of Censorship?

  Protecting human rights in the context of automated decision-making might not be limited to the relationship between intermediaries and their users. In fact, in order to adequately address human rights issues vis-à-vis social media platforms, we need to include the state as an actor too. In the German and European human rights frameworks, fundamental rights are in principle only applicable vertically, that is, between the state and the citizen. Where does that leave the right of freedom of expression when user-generated content is deleted by intermediaries on the basis of an agreement with a public authority? We must address this question in light of the use of artificial intelligence to moderate online speech and its (until now lacking) regulatory framework. When states create incentives for private actors to delete user-content pro-actively, is it still accurate to solely examine the relationship between platforms and users? Are we facing an expansion of collateral censorship? Is the usage of soft law instruments, such as codes of conduct, enhancing the protection of third parties or is it rather an opaque instrument that tends to be conflated with policy laundering? This paper aims to analyse the different layers of the usage of artificial intelligence by platforms, when it is triggered by a non-regulatory mode of governance. In light of the ongoing struggle in content moderation to balance between freedom of speech and other legal interests, it is necessary to analyse whether or not intelligent technologies could meet the requirements of freedom of speech and information to a sufficient degree.

• 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 unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must also be considered. Exceptions for Text and Data Mining (TDM) are already in place in a number of legal systems and likely to emerge to allow the creation and use of corpora of literary and artistic works, such as texts and images. In the patent field, AI systems using Big Data corpora of patents and scientific literature can be used to expand patent applications. They can also be used to “guess” and disclose future incremental innovation. These developments pose serious doctrinal and normative challenges to the patent system and the incentives it creates in a number of areas, though data exclusivity regimes can fill certain gaps in patent protection for pharmaceutical and chemical products. Finally, trade secret law, in combination with contracts and technological protection measures, can protect data corpora and sets of correlations and insights generated by AI systems.

• Evaluating the EC Private Data Sharing Principles: Setting a Mantra for Artificial Intelligence Nirvana?

  On April 25, 2018, the European Commission (EC) published a series of communications related to data trading and artificial intelligence. One of them called “Towards a Common European Data Space”, came with a working document: “Guidance on Sharing Private Sector Data in the European Data Economy”. Both the Communication and the guidance introduce two different sets of general principles addressing data sharing, contractual best practices for business-to-business (B2B), and businessto- government (B2G) environments. On the same day, the EC also published a legislative proposal to review the Public Sector (PSI) Directive. These two simultaneous actions are part of a major package of measures, which aim to facilitate the creation of a common data space in the EU and foster European artificial intelligence development. This article focuses on the first action, the “Guidance on Sharing Private Sector Data in the European Economy”. First, because it is one of its kind. Second, although these principles do not qualify as soft law (lacking binding force but having legal effects) the Commission’s communications set action plans for future legislation. Third, because the ultimate goal of these principles is to boost European artificial intelligence (AI) development. However, do these principles set a viable legal framework for data sharing, or is this public policy tool merely a naïve expectation? Moreover, would these principles set a successful path toward a thriving European AI advancement? In this contribution, I try to sketch some answers to these and related questions.

• Lawfulness for Users in European Copyright Law: Acquis and Perspectives

  This article analyses the emerging dynamics of the concepts of lawful user, lawful use, and lawful access in European Copyright law. It aims to demonstrate that these concepts, which are part of the EU copyright law acquis, have the potential to provide a fair solution to the controversies regarding the “rights” and “duties” of users in European copyright law. The article proposes to establish a legislative dynamic definition of lawful use in European Copyright Law. The concept must be clarified and given a broad meaning in order to cover both uses which are authorized by the right holders, but are also not restricted by law, by taking into account the legal ideals of fairness and reasonableness. This change must be accompanied by the recognition of all copyright exceptions as jus cogens and the establishment of effective procedural mechanisms to safeguard the enjoyment of lawful users’ rights.

• 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 infrastructures to share data efficiently between different branches of government and with other organisations. This paper analyses the current system in Europe for determining who is (or better, are) responsible for observing data protection obligations in such networked service settings. In doing so we address the following problems: (1) of ambiguity in applying the concept of data controller in networked settings; and (2) of insufficiencies in the framework for establishing the extent of the responsibilities in situations of joint control. We look at how the law and regulators address these problems and how the European Court of Justice tackles these problems by applying the principle of “effective and complete protection”. The issue of joint responsibility has gained particular relevance in the wake of Wirtschaftsakademie, a case recently decided by the European Court of Justice. In this case, a Facebook fan page administrator was found to be a joint-controller and therefore jointly responsible, together with Facebook, for observing data protection rules. Following this decision, there are many more situations of joint control than previously thought. As a consequence, part of the responsibility for compliance with data protection legislation and risk of enforcement measures are moved to those who integrate external services. This will change the incentive structure in such a way that joint-controllers will place a much higher value on data protection. To explore the practical implications of the legal framework, we analyse a number of examples taken from our earlier empirical work on the right of access to reflect on the newly emerging data responsibility infrastructure. We show that the coordination of responsibilities is complex in practice because many organisations do not have a clear overview of data flows, there are power imbalances between different actors, and personal data governance is often happening in separated specialised units.

• Editorial
• Intellectual Property under the Scrutiny of Investor-State Tribunals

  In 2009, C.S. Gibson was suggesting that: "With this early coverage of intellectual property in BITs, it is perhaps surprising that there has yet to be a publicly reported decision concerning an IPRcentered investment dispute. Given the trajectory of the modern economy, however, in which foreign investments reflect an increasing concentration of intellectual capital invested in knowledge goods protected by IPRs, this could soon change" (Gibson, ‘A Look at the Compulsory License in Investment Arbitration’, 2009). A couple of years later, the first investment cases dealing with IP issues were made public. In this context, this paper first addresses the conditions that have to be fulfilled in order to bring intellectual property claims in investment arbitration, by touching upon the question of the definition of an investment in theory and in practice. It also tries to shed light on some of the implications of recent arbitral awards touching upon this interaction between intellectual property and investment protection, from a legal and regulatory perspective. On the other hand, the specific situation of the European Union is scrutinized, and in particular the project put forward by the European Commission to adapt the dispute settlement system for the protection of investments.

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

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• Designing Competitive Markets for Industrial Data - Between Propertisation and Access

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

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• Liability under EU Data Protection Law: From Directive 95/46 to the General Data Protection Regulation

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• Regulating Online Content through the Internet Architecture: The Case of ICANN's new gTLDs

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• A Plea for Digital Exhaustion in EU Copyright Law

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• Platform Privacy: The Missing Piece of Data Protection Legislation

  After years of deliberation, the EU commission sped up the reform process of a common EU digital policy considerably in 2015 by launching the EU digital single market strategy. In particular, two core initiatives of the strategy were agreed upon: General Data Protection Regulation and the Network...

• Non-Commercial Quotation and Freedom of Panorama: Useful and Lawful?

  This contribution seeks to assess both the practical implications and lawfulness of national copyright exceptions that - lacking a corresponding provision in Article 5 of Directive 2001/29 (the InfoSoc Directive) - envisage that the only permitted use of a copyright work for the sake of the...

• Welcome to the Jungle: The Liability of Internet Intermediaries for Privacy Violations in Europe

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