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

DIPP. Digital Peer Publishing
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JIPITEC aims at providing a forum for in-depth legal analysis of current issues of intellectual property, information technology and E-commerce law with the main focus on European law. Its intention is to develop an information platform that allows authors and users to work closer together than is the case in classical law reviews. The journal will constantly revise it social media functions for this purpose. However, elements from classical law reviews, especially book reviews, bundling of articles in 2- 4 issues per year etc. will be retained

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

  • 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.

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