 Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 28 journals)
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- To Grant or Not to Grant: Injunctions in the World of Standard Essential
Patents
Authors: Dias; Michelle, Mudita, Gairola
Abstract: 14 (2022) 1: Competition law is a complex law that is ever evolving and finds itself face to face not only with difficult theories of economics and market definition but also with intellectual property law. This interaction between Competition law and Intellectual Property law can be starkly seen in the world of Standard Essential Patents. With the increase in investment in innovation and knowledge, there has been an increase in technological advancements and inventions such as in the field of electronics communications and networks. Subsequently, this has led to the rise in the importance of interoperability. This is where standards, standard-setting organizations and standard essential patents become important. It may seem, especially in this context, that competition law and intellectual property law are in conflict. However, that is necessarily not the case. In this paper, a small aspect of this conflict will be analysed: – whether injunctions should be granted for FRAND-encumbered standard essential patents or not. For this, global trends and the Indian scenario have been studied. The study concludes by suggesting a balance be maintained between both the laws and between the rights of the standard essential patent holder and the standard implementer.
Keywords: Articles
PubDate: 2022-12-18T00:00:00Z
- Recommenders you can rely on A legal and empirical perspective on the
transparency and control individuals require to trust news personalisation
Authors: van Drunen; Max, Zarouali, Brahim, Helberger, Natali
Abstract: 13 (2022) 3: This article explores the role law can play to support trust in the context of news personalisation. The need to ensure trust in the face of technological changes in information dissemination is an important aspect of both recent horizontal legislation such as the Digital Services Act, as well as context-specific specific efforts surrounding for example disinformation. In these legal discussions, however, what trust is, why law should promote it, and what concrete measures are suitable to do so often remain ambiguous. This raises suspicions over whether trust is simply a selling point of traditional legal measures, and if not, what concrete role law can and should play to promote trust. This article focuses on the role control and transparency measures can play to safeguard trust in organisations that use news personalisation. It first analyses how trust should be understood in the context of news personalisation, how media regulation has traditionally supported trust, and how it should continue to do so in the context of news personalisation. It then draws on a conceptual framework of transparency measures in the context of news personalisation to survey how important different transparency and control measures are to the individuals who place trust in organisations that use personalisation. Law’s current focus on informing individuals about and empowering them to stop personalisation does not account for the importance of enabling individuals to control how news is personalised.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- The Prohibition of General Monitoring Obligation for Video-Sharing
Platforms under Article 15 of the E-Commerce Directive in light of Recent
Developments: Is it still necessary to maintain it'
Authors: Oruç; Toygar Hasan
Abstract: 13 (2022) 3: The absence of a uniform notion of general monitoring, introduced under the E-Commerce Directive 2000/31/EC, leads to different interpretations of the scope and the role of the prohibition on general monitoring obligations by the EU legislators and by the Court of Justice of the European Union. While the Court of Justice of the European Union balances freedom of expression and information, right to privacy and protection of personal data and right to property on the same level of importance in determining the scope of general monitoring, this article shows that special protections attributed to the interests that are fundamental to human life and to our modern democracies under primary EU laws are ignored. Unfortunately, this further deepens the segregation in the different interpretations of general monitoring and creates an inconsistency among the recent EU legislations. The article notes that this inconsistency eventually causes a legal uncertainty for the video-sharing platforms regarding their content moderation practices and thus turning the prohibition into an empty shell. At the current stage, the article reveals the need for a clear distinction for VSPs between vertically applicable content moderation measures arising from content or sector specific regulations and the prohibition on general monitoring obligations. However, for future regulation in the EU, it is suggested to find an alternative solution to online monitoring which can suppress the impact of online illegal activities without restricting fundamental rights of individuals.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- Attention, here comes the EU Data Act! A critical in-depth analysis of the
Commission’s 2022 Proposal
Authors: Leistner; Matthias, Antoine, Lucie
Abstract: 13 (2022) 3: The paper outlines the main elements of the 2022 EU Commission’s Data Act Proposal. The proposal is the apex of the Commission’s recent regulatory initiatives in the field of platforms and the data economy. The paper provides for a critical in-depth analysis of the proposal that forms the basis for concrete recommendations to improve the current text, all guided by the aim to help this legislative initiative to reach its objectives by curbing it, where necessary, and at the same time making it more focused and efficient.
Keywords: Reports
PubDate: 2022-09-28T22:00:00Z
- The blockchain ecosystem in the light of intellectual property law
Authors: Tzoulia; Eleni
Abstract: 13 (2022) 3: The study at hand delves into the technologies composing blockchain and designates its most significant practical applications to date. The technological ecosystem identified through this investigation is then scrutinized from the perspective of intellectual property law. It examines, in particular, under which conditions and to what extent blockchain itself as a standalone product, its individual components, and its several applications may be subject to a) copyright, b) database and trade secret protection, and c) patent law. The objective of this investigation is to identify the most suitable legal basis for raising claims against unauthorized use of the pertinent subject matter. The analysis also explores adversities posed to intellectual property law by modern technologies and contemplates their circumvention. The benchmark for this examination is the intellectual property law currently in force in the EU.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- Deviation from Objective Requirements for Conformity With a Contract of
Digital Content or Digital Service: The Assessment of Its Use
Authors: Mantrov; Vadim, Kārkliņš, Jānis, Barkāne, Irēna, Dāvida, Zanda, Kārklis, Salvis, Silionovs, Kristaps
Abstract: 13 (2022) 3: Currently the European Union (EU) is taking major steps in different legal areas including consumer protection law to implement the Digital Single Market Strategy in order to ensure effective and smooth functioning of the internal market in the modern economy. The new EU policy concerning the Consumer Digital Content Directive (Directive 2019/770) lays down common rules on requirements concerning contracts between traders and consumers for the supply of digital content or digital service. At the same time, the Directive allows deviation from the objective requirements for conformity with a contract of a digital content or digital service on the basis of certain preconditions explicitly envisaged by Article 8(5) of the Directive itself. The present article aims to discuss the possibility for use of such a deviation by critically assessing the preconditions for deviation to take place in conjunction with typical examples likely to appear in practice. The article begins by discussing the applicable regulation, providing a possibility for deviation from objective requirements for conformity with the contract. The article then proceeds to critical assessment of each precondition for use of a deviation in the light of examples that might either be permitted or not permitted under the applicable regulation. Furthermore, frequently used forms for supply of digital content or digital service are discussed considering the previous discussion of these preconditions, as deviation from objective requirements for conformity of digital content or digital service are most often found in online contracts. The article finishes by summarizing the discussion in the article.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- Wiki (POCC) authorship: The case for an inclusive copyright
Authors: Mendis; Sunimal
Abstract: 13 (2022) 3: Public open collaborative creation (POCC) constitutes an innovative form of collaborative authorship that is emerging within the digital humanities. At present, the use of the POCC model (or Wiki authorship model) can be observed in many online creation projects the best known examples being Wikipedia and free-open source software (FOSS). This paper presents the POCC model as a new archetype of authorship that is founded on a creation ideology that is inclusive and as such, challenges the existing individualistic conception of authorship in exclusivity-based copyright law. Based on a comparative survey of the copyright law frameworks on collaborative authorship in France, the UK and the USA, the paper demonstrates the inability of the existing framework of exclusivity-based copyright law to give adequate legal expression to the relationships between co-authors engaged in collaborative creation within the POCC model. It proposes the introduction of an 'inclusive' copyright to the copyright law toolbox which would be more suited for giving legal expression to the qualities of inclusivity and dynamism that are inherent in these relationships.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- Access to Research Data and EU Copyright Law
Authors: Kuschel; Linda, Dolling, Jasmin
Abstract: 13 (2022) 3: With the advent of data-driven science and data-based business models in the 21st century, legal questions surrounding data, data rights and data law have become one of the most discussed topics both for lawmakers and for legal scholars globally. This is true particularly in the European Union, which in recent years has introduced data protection legislation, cybersecurity legislation, legislation regarding digital content and digital services, and more. Within this flurry of legal activity, one area of data law goes surprisingly unnoticed—the generation, ownership and use of research data. The slim attention it receives is disproportionate to its relevance in the digital economy. Not only are research data essential for the development of new technologies, they also feed machine-learning algorithms and are produced in any and all academic institutions. In order to maximize innovative potential, it is essential that researchers operate with legal certainty when using research data. The article seeks to contribute to this aim by exploring the legal framework in which research data can be accessed and used in EU copyright law. First, it delineates the authors’ understanding of research data. It then examines the protection research data currently receives under EU and Member State law via copyright and related rights, as well as the ownership of these rights by different stakeholders in the scientific community. After clarifying relevant conflict-of-laws issues that surround research data, it maps ways to legally access and use them, including statutory exceptions, the open science movement and current developments in law and practice.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- Open sourcing AI: intellectual property at the service of platform
leadership
Authors: Muñoz Ferrandis; Carlos, Duque Lizarralde, Marta
Abstract: 13 (2022) 3: Artificial Intelligence (AI) is one of the most strategic technologies of our century. Consequently, tech companies are adopting intellectual property strategies to protect their investment in the field, which encompasses copyright, patents, and trade secrets. While the number of AI-related patent applications is increasing, the number of open-source AI projects sponsored by major AI patent holders is also on the rise. This article explores the commercial and policy strategic reasons behind the growing adoption of open-source licensing in the AI space. More precisely, it assesses how IP rights are articulated around “openness” as a competitive factor in ecosystem competition, and how some players are using open-source licensing successfully to attract a critical mass of users and build an ecosystem around their AI platforms. Moreover, this article integrates the debate on the protectability of AI features by IP rights to assess the potential implications for open-source. Finally, it analyses the most used open-source licenses in AI projects and highlights existing and future challenges from an IP and contractual law perspective.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- Editorial
Authors: Sein; Karin
Abstract: 13 (2022) 3:
PubDate: 2022-09-28T22:00:00Z
- Great expectations: the Facebook case and subsequent legislative
approaches to regulate large online platforms and digital markets
Authors: Jackwerth; Karin
Abstract: 13 (2022) 3: In recent years, the accumulation and entrenchment of power by a few large firms in the digital markets sector and the complementary decrease in the level of competition has become visible around the world. This could likely result in negative consequences for potential competitors, individuals and businesses that interact with these firms. In order to address this challenge, several jurisdictions have initiated the development of legislative tools to regulate these large firms. The first regulation of this type has been enforced by the German legislator and could therefore serve as a reference for other jurisdictions. In advance of practical experience, this paper will conduct a theoretical analysis of potential structural and data-related issues arising from this regulation. It will deduce that the regulation successfully addresses data-related concerns which have previously been confronted in the so-called Facebook case. The paper will also identify shortcomings in structural aspects, which will be confronted with a comparison to the UK approach for a similar regulatory tool. The results of the comparison will be summarised in a list of recommendations with the aims to improve the German regulation and to serve as guidance for similar approaches in other jurisdictions.
Keywords: Articles
PubDate: 2022-09-28T22:00:00Z
- AI as an Inventor: Has the Federal Court of Australia Erred in DABUS'
Authors: Matulionyte; Rita
Abstract: 13 (2022) 2: The emergence of advanced Artifi¬cial Intelligence (AI) technologies has caused an inter¬national debate as to whether inventions generated by AI technology without human intervention should be protected under patent law and who should own them. These questions have been discussed in a re¬cent Federal Court of Australia decision in Thaler v Commissioner of Patents. In that judgment, Beach J recognised that some AI has the ability to auton¬omously invent and that such AI-generated inven¬tions could be protected under patent law. His Hon¬our held that, in such instances, an AI system could and should be listed as an inventor in a patent appli¬cation. This article challenges the decision by argu¬ing that, even in the case of the most sophisticated AI systems, these systems are not autonomous in the inventive process as humans provide significant contributions to the very system that leads to the in¬ventive output. Secondly, I contend that the discus¬sion on the need of patent protection for AI-gener¬ated inventions (if it were possible at all) is misplaced and not sufficiently comprehensive. Finally, the ex¬panded application of the Patents Act 1990 (Cth), and especially s 15(1), to accommodate ‘AI inventors’, is an over-reach that is not consistent with the current law. The article recommends that the AI inventorship question should be decided not by courts, but by a policy making body and all interested stakeholders should be engaged in the discussion on this impor¬tant matter.
Keywords: Articles
PubDate: 2022-07-31T22:00:00Z
- Zen and the Art of Repair Manuals: Enabling a participatory Right to
Repair through an autonomous concept of EU Copyright Law
Authors: Rosborough; Anthony D.
Abstract: 13 (2022) 2: Repair manuals are an essential resource for repairing today’s modern and computerised devices. Though these manuals may contain purely utilitarian and uncopyrightable facts, they often receive copyright protection in their entirety as literary works. This protection can impede community-based efforts toward fostering a culture of participatory repair throughout the EU, including repair cafés and tool libraries. Participatory repair activities provide numerous environmental, social, and economic benefits. This article explores whether directive 2001/29/EC’s exception for “uses in connection with the repair or demonstration of equipment” at Article 5(3)(l) (the “Repair Exception”) may offer an avenue for enabling such non-profit activities. Following an examination of the shortcomings of recent EU-wide policy measures and industry-led commitments aimed at providing access to repair information, the article looks to the Repair Exception’s origins, member state implementation, and its interpretive scope as an autonomous concept of EU law. Considering the strong public interest in participatory repair and dissemination of technical knowledge, the article calls for a robust autonomous interpretation of the Repair Exception in line with Article 11 TFEU. This interpretation should enable non-profit repair activities throughout the EU while accounting for and balancing the legitimate economic interests of rightsholders.
Keywords: Articles
PubDate: 2022-07-31T22:00:00Z
- Judicial Dialogue and Digitalization: CJEU Engagement with ECtHR Case Law
and Fundamental Rights Standards in the EU
Authors: Psychogiopoulou; Evangelia
Abstract: 13 (2022) 2: The aim of this article is to study CJEU engagement with ECtHR case law in cases con¬cerned with new technologies and digitalization via CJEU references to ECtHR rulings. The article exam¬ines the nature, extent and key characteristics of CJEU engagement with ECtHR case law and explores the effects of ECtHR judgments on CJEU adjudica¬tion. The analysis builds on CJEU decisions that ad-dress various aspects of digital innovation, attesting to the array of legal issues raised by digitalization and the distinct ways in which ECtHR case law is used by the CJEU. It shows that in cases dealing with digi¬tal change and transformation, CJEU interaction with ECtHR case law is not cosmetic: ECtHR case law cor-roborates, enriches and sometimes substantiates CJEU reasoning.
Keywords: Articles
PubDate: 2022-07-31T22:00:00Z
- Transparency Reports of European CMOs: Between legislative aspirations and
operational reality – comparability impending factors and solution
strategies
Authors: Miller; Mihail, Klingner, Stephan
Abstract: 13 (2022) 2: Directive 2014/26/EU set out the right of rightholders to authorise collective manage¬ment organisations (CMOs) within the European Eco-nomic Area that are best suited to their needs. To this end, the Directive established a harmonised gov¬ernance framework for CMOs to ensure, among other things, transparency towards their stakeholders. Transparency is a key factor for inducing competition and efficiency in the collective rights management (CRM) market. For this reason publishing various business details became mandatory for CMOs in the EU. Especially information on “categories of rights” and “type[s] of use” are of great relevance for right¬holders and licensees, as these are subject-matters of their interaction with CMOs. However, evaluating the disclosure of information on these subjects in the transparency reports of 21 music copyright CMOs of the EU, we find the terminology and the structure of information to be very heterogeneous. This makes comparative assessments very labour-intensive, po¬tentially biased, inaccurate and highly inefficient. To this end, we present the use of controlled vocabular¬ies as a strategy to harmonise the way this informa-tion is reported.
Keywords: Articles
PubDate: 2022-07-31T22:00:00Z
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