Editorial

• Author: Chris Reed
• Pages: 94-95

2017

Chris Reed

94

2

Editorial

© 2017 Chris Reed

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Chris Re ed, Editorial, 8 (2017) JIPITEC 94 para 1.

1 This issue is my rst as editor, and I’m delighted to

be part of JIPITEC. It is also a pleasure to be able

to publish such an interesting set of articles. The

common feature of all of them is that they investigate

known problems and identify that the solution

to those problems requires some fundamental

rethinking about the basis of the current law.

2 This is also an opportunity to welcome Professor Dr

Karin Sein of the University of Tartu, Estonia, to the

Editorial Board, and it is particularly appropriate that

the issue begins with her article on digital content,

and how we should treat it for liability purposes

when it is inextricably mixed with physical products.

The problem she identies is that the nature of a

‘product’ has changed. Physical products used to be

xed in nature, changing only over time through

decay or wear and tear. Now they are malleable and

capable of exhibiting new characteristics as their

embedded digital content is updated. To determine

the liability obligation of a product supplier, we

need rst to understand this change in the nature

of products.

3

A similar shift in understanding is necessary to

deal with the problem of non-contractual liability

for content made available online. The application

of ofine liability law to intermediaries was so

problematic that immunities, such as those of

the Electronic Commerce Directive, had to be

introduced as an interim measure to ensure that

the fear of liability claims did not, effectively, close

down the internet. Carsten Ulrich argues that it

is time to reconsider those immunities. But this

reconsideration cannot limit itself to liability, but

has to identify how far we expect intermediaries

to take an active role in detecting and preventing

dissemination of legally problematic content.

Ulrich’s insight is that different vertical sectors of

the economy require different approaches, and that

there is no universal and simplistic liability solution.

Later in the issue Gerald Spindler’s report on the new

German Act on Responsibility of Social Networks

returns to this topic. At rst sight the law is a

purely vertical measure, as Ulrich recommends, and

purportedly only relates to notice and take-down

of content. But as Spindler notes, the issues at stake

go far beyond this, in particular the countervailing

interests of content posters (such as free speech and

the rights of journalists) which have been largely

ignored by the law.

4 The nature of a book is questioned by Liliia Oprysk

and her co-authors. An e-book has no physical

property element, which means that the book

purchaser no longer has the same freedoms to

dispose of their copy. This raises the question

whether a secondary market should be encouraged

in order to give e-book buyers the same freedoms

as purchasers of conventional books. The answer

to the question is not simply one of copyright law,

but rather a political decision based on a number

of factors including the consumer’s expectations.

Just like the content liability question, this raises

issues of knowledge, assignation of responsibility,

and preservation of fundamental rights.

5 The re-evaluation of copyright law continues with

Pekka Savola’s article on liability for internet linking.

Copyright used to be about controlling copying, but