Editorial

Author:Chris Reed
Pages:94-95
 
FREE EXCERPT
2017
Chris Reed
94
2
Editorial
© 2017 Chris Reed
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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

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