IVIR - Universiteit van Amsterdam

@article{Bod\'{o}2021,
title = {The commodification of trust},
author = {Bod\'{o}, B.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3843707},
year = {2021},
date = {2021-05-17},
journal = {Blockchain & Society Policy Research Lab Research Nodes},
number = {1},
abstract = {Fundamental, wide-ranging, and highly consequential transformations take place in interpersonal, and systemic trust relations due to the rapid adoption of complex, planetary-scale digital technological innovations. Trust is remediated by planetary scale techno-social systems, which leads to the privatization of trust production in society, and the ultimate commodification of trust itself.
Modern societies rely on communal, public and private logics of trust production. Communal logics produce trust by the group for the group, and are based on familiar, ethnic, religious or tribal relations, professional associations epistemic or value communities, groups with shared location or shared past. Public trust logics developed in the context of the modern state, and produce trust as a free public service. Abstract, institutionalized frameworks, institutions, such as the press, or public education, science, various arms of the bureaucratic state create familiarity, control, and insurance in social, political, and economic relations. Finally, private trust producers sell confidence as a product: lawyers, accountants, credit rating agencies, insurers, but also commercial brands offer trust for a fee.
With the emergence of the internet and digitization, a new class of private trust producers emerged. Online reputation management services, distributed ledgers, and AI-based predictive systems are widely adopted technological infrastructures, which are designed to facilitate trust-necessitating social, economic interactions by controlling the past, the present and the future, respectively. These systems enjoy immense economic success, and they are adopted en masse by individuals and institutional actors alike.
The emergence of the private, technical means of trust production paves the way towards the widescale commodification of trust, where trust is produced as a commercial activity, conducted by private parties, for economic gain, often far removed from the loci where trust-necessitating social interactions take place. The remediation and consequent privatization and commodification of trust production has a number of potentially adverse social effects: it may decontextualize trust relationships; it removes trust from the local social, cultural relational contexts; it changes the calculus of interpersonal trust relations. Maybe more importantly as more and more social and economic relations are conditional upon having access to, and good standing in private trust infrastructures, commodification turns trust into the question of continuous labor, or devastating exclusion. By invoking Karl Polanyi’s work on fictious commodities, I argue that the privatization, and commodification of trust may have a catastrophic impact on the most fundamental layers of the social fabric.},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

Close

Fundamental, wide-ranging, and highly consequential transformations take place in interpersonal, and systemic trust relations due to the rapid adoption of complex, planetary-scale digital technological innovations. Trust is remediated by planetary scale techno-social systems, which leads to the privatization of trust production in society, and the ultimate commodification of trust itself.
Modern societies rely on communal, public and private logics of trust production. Communal logics produce trust by the group for the group, and are based on familiar, ethnic, religious or tribal relations, professional associations epistemic or value communities, groups with shared location or shared past. Public trust logics developed in the context of the modern state, and produce trust as a free public service. Abstract, institutionalized frameworks, institutions, such as the press, or public education, science, various arms of the bureaucratic state create familiarity, control, and insurance in social, political, and economic relations. Finally, private trust producers sell confidence as a product: lawyers, accountants, credit rating agencies, insurers, but also commercial brands offer trust for a fee.
With the emergence of the internet and digitization, a new class of private trust producers emerged. Online reputation management services, distributed ledgers, and AI-based predictive systems are widely adopted technological infrastructures, which are designed to facilitate trust-necessitating social, economic interactions by controlling the past, the present and the future, respectively. These systems enjoy immense economic success, and they are adopted en masse by individuals and institutional actors alike.
The emergence of the private, technical means of trust production paves the way towards the widescale commodification of trust, where trust is produced as a commercial activity, conducted by private parties, for economic gain, often far removed from the loci where trust-necessitating social interactions take place. The remediation and consequent privatization and commodification of trust production has a number of potentially adverse social effects: it may decontextualize trust relationships; it removes trust from the local social, cultural relational contexts; it changes the calculus of interpersonal trust relations. Maybe more importantly as more and more social and economic relations are conditional upon having access to, and good standing in private trust infrastructures, commodification turns trust into the question of continuous labor, or devastating exclusion. By invoking Karl Polanyi’s work on fictious commodities, I argue that the privatization, and commodification of trust may have a catastrophic impact on the most fundamental layers of the social fabric.

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Bostyn, S.

Why a COVID IP Waiver Is not a Good Strategy

2021.

Abstract | Links | BibTeX

@article{Bostyn2021,
title = {Why a COVID IP Waiver Is not a Good Strategy},
author = {Bostyn, S.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3843327},
year = {2021},
date = {2021-05-17},
abstract = {The COVID-19 pandemic has a profound influence on all aspects of society. The development of successful vaccines in record speed is almost a miracle. But despite the successful development and approval of multiple vaccines, many people still die of this terrible disease, and there is an urgent need to see more vaccines manufactured and distributed across the globe.
The proposed COVID-19 IP waiver has been touted by some to be the perfect solution to a terrible problem. We all agree that there is a terrible problem of insufficient vaccines to inoculate the world population.
An IP waiver is not a good strategy however, to tackle this crisis. There are multiple more effective solution conceivable which do not require a very disruptive IP waiver.
The problem of insufficient supply is much more complicated than a simple IP waiver suggests. This is a complex ecosystem, and there are many moving parts. Moreover, IP rights are only part of the problem relating to more supply of vaccine or therapeutics. In view of the complexities, it will probably take many months to negotiate any kind of IP waiver system that would be acceptable to all WTO member states, if consensus could be reached at all. And the end result is likely to satisfy very few if any countries.
The legality of an IP waiver can be doubted, and it would require retro-active effect, a concept that should be extremely sparingly used.
A multitude of complex issues needs to be sorted out. There are hundreds of patents to navigate. A waiver to the equally patented vaccine platform technology (covering many patents), which may be used to develop any other vaccine, will make those companies who have invested heavily into developing it very nervous indeed, to say the least.
Crucial manufacturing know-how is often not protected by IP rights, but is kept secret, and it will be difficult to force companies to disclose that information, also because one does not know what to ask for.
The present IP waiver proposal also provides for a disclosure of commercially very sensitive information. Companies did not have a chance to adapt their regulatory disclosure strategies to this new reality, which means that information which will be disclosed under the waiver could very well have a major negative impact on future innovation strategies, and may also hamper competitive advantage or leverage.
Market exclusivity is arguably not covered by the IP waiver, which means that separate national statutory intervention will be required to ensure that this market exclusivity is set aside, absent of which the IP waiver cannot have any practical effect.
A quick and determined use of compulsory licensing could be a better way forward, as they have the potential to be a powerful tool. There are inefficiencies in using the instrument however, and invoking them when the need is high will require a relatively long lead time before they sort practical effect. They also require additional statutory intervention to ensure that regulatory exclusivities do not block their practical effect. And they might not necessarily work as well with low and middle-income countries, who would have less leverage in the negotiations.
More efficient solutions can be arrived at by introducing hard clauses into contracts in the context of push and pull mechanisms. Those obligations are much more likely to result in more supply in the shorter to medium term if they are agreed upon long before the vaccine enters the market. It is obviously too late for the contracts that have been concluded in the past, but it should be a template for the future.},
keywords = {},
pubstate = {published},
tppubtype = {article}
}

Close

The COVID-19 pandemic has a profound influence on all aspects of society. The development of successful vaccines in record speed is almost a miracle. But despite the successful development and approval of multiple vaccines, many people still die of this terrible disease, and there is an urgent need to see more vaccines manufactured and distributed across the globe.
The proposed COVID-19 IP waiver has been touted by some to be the perfect solution to a terrible problem. We all agree that there is a terrible problem of insufficient vaccines to inoculate the world population.
An IP waiver is not a good strategy however, to tackle this crisis. There are multiple more effective solution conceivable which do not require a very disruptive IP waiver.
The problem of insufficient supply is much more complicated than a simple IP waiver suggests. This is a complex ecosystem, and there are many moving parts. Moreover, IP rights are only part of the problem relating to more supply of vaccine or therapeutics. In view of the complexities, it will probably take many months to negotiate any kind of IP waiver system that would be acceptable to all WTO member states, if consensus could be reached at all. And the end result is likely to satisfy very few if any countries.
The legality of an IP waiver can be doubted, and it would require retro-active effect, a concept that should be extremely sparingly used.
A multitude of complex issues needs to be sorted out. There are hundreds of patents to navigate. A waiver to the equally patented vaccine platform technology (covering many patents), which may be used to develop any other vaccine, will make those companies who have invested heavily into developing it very nervous indeed, to say the least.
Crucial manufacturing know-how is often not protected by IP rights, but is kept secret, and it will be difficult to force companies to disclose that information, also because one does not know what to ask for.
The present IP waiver proposal also provides for a disclosure of commercially very sensitive information. Companies did not have a chance to adapt their regulatory disclosure strategies to this new reality, which means that information which will be disclosed under the waiver could very well have a major negative impact on future innovation strategies, and may also hamper competitive advantage or leverage.
Market exclusivity is arguably not covered by the IP waiver, which means that separate national statutory intervention will be required to ensure that this market exclusivity is set aside, absent of which the IP waiver cannot have any practical effect.
A quick and determined use of compulsory licensing could be a better way forward, as they have the potential to be a powerful tool. There are inefficiencies in using the instrument however, and invoking them when the need is high will require a relatively long lead time before they sort practical effect. They also require additional statutory intervention to ensure that regulatory exclusivities do not block their practical effect. And they might not necessarily work as well with low and middle-income countries, who would have less leverage in the negotiations.
More efficient solutions can be arrived at by introducing hard clauses into contracts in the context of push and pull mechanisms. Those obligations are much more likely to result in more supply in the shorter to medium term if they are agreed upon long before the vaccine enters the market. It is obviously too late for the contracts that have been concluded in the past, but it should be a template for the future.

Close

Ancel, M-E., Binctin, N., Drexl, J., Ginsburg, J.C., Kono, T., Lee, G., Matulionyte, R., Moura Vicente, D., Treppoz, E., van Eechoud, M.

International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”): Applicable Law

JIPITEC, 12 (1), pp. 44-73, 2021.

Abstract | Links | BibTeX

as part of ILA Committee:, van Eechoud, M.

Annex Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”)

JIPITEC, 12 (1), pp. 86-93, 2021.

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Quintais, J., Schwemer, S.

The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?

Working Paper, 2021.

Abstract | Links | BibTeX

@article{Quintais2021e,
title = {The Interplay between the Digital Services Act and Sector Regulation: How Special is Copyright?},
author = {Quintais, J. and Schwemer, S. },
url = {https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3841606},
year = {2021},
date = {2021-05-10},
journal = {Working Paper},
abstract = {On 15 December 2020, the European Commission published its proposal for a Regulation on a Single Market for Digital Services (Digital Services Act). It carries out a regulatory overhaul of the 21-year- old horizontal rules on intermediary liability in the Directive and introduces new due diligence obligations for intermediary services.

Our analysis illuminates an important point that has so far received little attention: how would the Digital Services Act’s rules interact with existing sector-specific lex specialis rules? In this paper, we look specifically at the intersection of the Digital Services Act with the regime for online content sharing service providers (OCSSPs) set forth in art. 17 of Directive (EU) 2019/790 on copyright in the Digital Single Market (CDSM Directive). At first glance, these regimes do not appear to overlap as the rules on copyright are lex specialis to the Digital Services Act. A closer look shows a more complex and nuanced picture. Our analysis concludes that the DSA will apply to OCSSPs insofar as it contains rules that regulate matters not covered by art. 17 CDSM Directive, as well as specific rules on matters where art. 17 leaves margin of discretion to Member States. This includes, to varying degrees, rules in the DSA relating to the liability of intermediary providers and to due diligence obligations for online platforms of different sizes. Importantly, we consider that such rules apply even where art. 17 CDSM Directive contains specific (but less precise) regulation on the matter.

From a normative perspective, this might be a desirable outcome, to the extent that the DSA aims to establish “uniform rules for a safe, predictable and trusted online environment, where fundamental rights enshrined in the Charter are effectively protected”. Based on our analysis, we suggest a number of clarifications that might be help achieve that goal. },
keywords = {},
pubstate = {published},
tppubtype = {article}
}

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McGonagle, T., Voorhoof, D.

Freedom of expression, the Media and Journalists: Case-law of the Euopean Court of Human Rights

2021, ISBN: 9789287184351, (IRIS Themes, vol. III, 6th edition, April 2021).

Abstract | Links | BibTeX

McGonagle, T., Volgenant, O.

Persvrijheidsmonitor 2020

2021.

Abstract | Links | BibTeX

Husovec, M., Quintais, J.

Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders

Mylly, Tuomas; Griffiths, Jonathan (Ed.): Oxford University Press, 2021.

Abstract | Links | BibTeX

@inbook{HusovecQuintais2021-2,
title = {Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders},
author = {Husovec, M. and Quintais, J.},
editor = {Tuomas Mylly and Jonathan Griffiths},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3835930},
year = {2021},
date = {2021-04-29},
publisher = {Oxford University Press},
abstract = {Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators.

EU copyright law often uses a technical term of ‘right-holders’ to refer to a wide range of players with legal entitlements in the copyright ecosystem: authors, performers, phonogram producers, film producers, broadcasting organisations and (most recently) press publishers. Obviously, not all right-holders are created equal nor do their legal entitlements flow from identical normative justifications. We argue in this chapter that even the use of this seemingly neutral term can, due to the design of underlying legal solutions, lead to stark inequality between right-holders. Our broader goal is to demonstrate that maximising enforcement by means of Art. 17 of the DSM Directive does not simply maximise the position of every right-holder at the expense of platforms but does so disproportionality for big right-holders. Besides, we show that blind use of ‘right-holder’ and ‘user’ distinction harms the very creators that provision is supposed to protect. },
keywords = {},
pubstate = {published},
tppubtype = {inbook}
}

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van Gompel, S.

‘Non, non, rien n’a changé’: Over vergoedingsaanspraken voor makers uit hoofde van exploitatiecontracten

Auteursrecht, 2021 (1), pp. 3-9, 2021.

Abstract | Links | BibTeX

van Gompel, S.

Annotatie bij Rb Amsterdam 10 september 2020 (Left Lane c.s. / Sony Music)

Auteursrecht, (1), pp. 40-42, 2021.

Links | BibTeX

Keller, P.

It’s 23 April 2021, so where is the Advocate General opinion in Case C-401/19 Poland v Parliament and Council?

Kluwer Copyright Blog, 2021.

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Bodó, B., Giannopoulou, A., Mezei, P., Quintais, J.

The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part II

Kluwer Copyright Blog 2021.

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Bodó, B., Giannopoulou, A., Mezei, P., Quintais, J.

The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part I

Kluwer Copyright Blog 2021.

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van Eechoud, M.

A Serpent Eating Its Tail: The Database Directive Meets the Open Data Directive

IIC - International Review of Intellectual Property and Competition Law , 52 (4), pp. 375-378, 2021, (Editorial).

Abstract | Links | BibTeX

Quintais, J., Trapova, A.

EU copyright law round up – first trimester of 2021

Kluwer Copyright Blog, 2021.

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Bellanova, R., Irion, K., Lindskov Jacobsen, K., Ragazzi, F., Saugmann, R., Suchman, L.

Toward a Critique of Algorithmic Violence

International Political Sociology, 15 (1), pp. 121–150, 2021.

Abstract | Links | BibTeX

van Eechoud, M.

Nieuws in de platformeconomie

De Hofvijver, 11 (118), 2021.

Abstract | Links | BibTeX

Irion, K.

Formal meeting (oral evidence session): Digital trade and data

2021.

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Dommering, E.

Annotatie bij Hof van Justitie EU 16 juli 2020 (Data Protection Commissioner / Facebook Ireland & Schrems)(Schrems II)

Nederlandse Jurisprudentie, 2021 (5/6), pp. 455-458, 2021.

Abstract | Links | BibTeX

Dommering, E.

Annotatie bij Hoge Raad 1 oktober 2019 (nr. 17/01305)

Nederlandse Jurisprudentie, 2021 (5/6), pp. 550-551, 2021.

Abstract | Links | BibTeX

Dommering, E.

Annotatie bij EHRM 8 oktober 2019 (Szurovecz / Hongarije)

Nederlandse Jurisprudentie, 2021 (4), pp. 230-231, 2021.

Abstract | Links | BibTeX

Bot, Th. P.L., Dommering, E., van den Herik, L.J., Jacobs, B.P.F., Jones-Bos, R.V.M., Nagtegaal, W., Zijlstra, S.E. (Evaluatiecommissie Wiv 2017)

Evaluatie 2020: Wet op de Inlichtingen- en veiligheidsdiensten 2017

2021, (Den Haag: Ministeries BDZK en Defensie, 2021, 180 pp.).

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Dommering, E.

Annotatie bij EHRM 30 januari 2020 (Breyer/ Duitsland)

Nederlandse Jurisprudentie, (51/52), pp. 7926-7929, 2021.

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Irion, K.

Front-running legislatures can foster AI that empowers users of digital technologies

(ed.), Nadia El-Imam (Ed.): pp. 114-15, 2021.

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Poort, J., Zuiderveen Borgesius, F.

Personalised pricing: The demise of the fixed price?

2021, (Forthcoming as chapter 10 in: Kohl, U., & Eisler, J. (eds.), Data-Driven Personalisation in Markets, Politics and Law. Cambridge: Cambridge University Press, 2021.).

Abstract | Links | BibTeX

Drunen, M. van, Helberger, N., Möller, J., Vrijenhoek, S.

Regulation of news recommenders in the Digital Services Act: empowering David against the Very Large Online Goliath

Internet Policy Review, 2021, (Opinion).

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Jütte, B.J., Quintais, J.

The Pelham Chronicles: Sampling, Copyright and Fundamental Rights

Journal of Intellectual Property Law & Practice, 16 (3), pp. 213-225, 2021.

Abstract | Links | BibTeX

@article{QuintaisJutte2021,
title = {The Pelham Chronicles: Sampling, Copyright and Fundamental Rights},
author = {Quintais, J. and Jutte, B.J.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3775599},
doi = {https://doi.org/10.1093/jiplp/jpab040},
year = {2021},
date = {2021-02-18},
journal = {Journal of Intellectual Property Law & Practice},
volume = {16},
number = {3},
pages = {213-225},
abstract = {On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated.

This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling.

This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6). },
keywords = {},
pubstate = {published},
tppubtype = {article}
}

Close

On 29 July 2019 the Court of Justice of the European Union (CJEU or Court) rendered its long-awaited judgment in Pelham. This judgement was published together, but not jointly, with those on Spiegel Online and Funke Medien. A bit less than a year later, on 30 April 2020, the German Federal Court of Justice (Bundesgerichtshof or BGH), which had referred the cases to Luxembourg, rendered its judgments in all three cases. There are obvious parallels between these judgments, and their combined relevance for the interpretation of European copyright law in the light of EU fundamental rights cannot be understated.

This article focuses on Pelham, or the “Metall auf Metall” saga, as it is known in Germany. It analyses the relevant aspects and impact of Pelham in EU copyright law and examines how the BGH implemented the guidance provided by the CJEU. Where relevant, we draw the parallels to Funke Medien and Spiegel Online. Pelham gave the Court the opportunity to define the scope of the related right of reproduction of phonogram producers in art. 2(c) of Directive 2001/29/EC (InfoSoc Directive). The question whether such right enjoys the same scope of protection as the reproduction right for authorial works had made its way through the German courts for a remarkable two decades. This saga included a constitutional complaint, which in 2016 answered the question in the affirmative. The BGH’s preliminary reference to the CJEU was particularly important because on the back of the reproduction question it sought to clarify issues with fundamental rights implications, in particular the scope of the quotation right or defence and its application to musical creativity in the form of sampling.

This article proceeds as follows. After this introduction, we briefly revisit the Pelham saga in its journey through the German and European courts, providing he context to the underlying legal issues (2). We then turn to the interpretation of the scope of the reproduction and distribution rights for phonograms (3) before examining the CJEU’s assessment of the systematic nature of exceptions and limitations (E&Ls) (4). We then discuss the wider implications of Pelham on the role of fundamental right in copyright law (5). We conclude with some doctrinal and practical observations on the wider implications of the “Metall auf Metall”-saga (6).

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Husovec, M., Quintais, J.

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms under the Copyright in the Digital Single Market Directive

GRUR International - Journal of European and International IP Law, 70 (4), pp. 325-348, 2021.

Abstract | Links | BibTeX

Correa, C., Dusollier, S., Geiger, C., Griffiths, J., Grosse Ruse-Khan, H., Hilty, R.M., Köklü, K., Kur, A., Lin, X., Markiewics, R., Moscon, V., Nérisson, s., Peukert, A., Senftleben, M., Xalabarder, R.

Opinion: International Instrument on Permitted Uses in Copyright Law

IIC - International Review of Intellectual Property and Competition Law , 52 , pp. 62-67, 2021.

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Gervais, D.J., P.B. Hugenholtz, Quintais, J.

Trends And Developments In Artificial Intelligence: Challenges To Patent Law

Kluwer Patent Blog 2021.

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Irion, K.

AI Regulation in the European Union and Trade Law: How can accountability of AI and a high level of consumer protection prevail over a trade law discipline on source code?, study commissioned by the Vzbv, Amsterdam: Institute for Information Law, 2021

2021.

Abstract | Links | BibTeX

Hugenholtz, P.

Artikel 18-23 DSM-richtlijn: Exploitatiecontracten

AMI, 2020 (6), pp. 187-192, 2020.

Abstract | Links | BibTeX

Gervais, D.J., Hugenholtz, P., Quintais, J.

Trends and Developments in Artificial Intelligence: Challenges to Copyright

Links | BibTeX

Antal, D., Bodó, B., Puha, Z.

Can scholarly pirate libraries bridge the knowledge access gap? An empirical study on the structural conditions of book piracy in global and European academia

PLoS ONE, 15 (12), 2020.

Abstract | Links | BibTeX

Irion, K.

Panta rhei: A European Perspective on Ensuring a High-Level of Protection of Digital Human Rights in a World in Which Everything Flows

Amsterdam Law School Research Paper No. 2020, (38), 2020.

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Allan, J., Gervais, D.J., Hartmann, C., Hugenholtz, P., Quintais, J.

Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework: Final Report

2020, (Report written for the European Commission by P.B. Hugenholtz, D. Gervais, J.P. Quintais, C. Hartmann & J. Allan, completed September 2020. ISBN: 97892762244488).

Abstract | Links | BibTeX

@techreport{Hugenholtz2020f,
title = {Trends and Developments in Artificial Intelligence: Challenges to the Intellectual Property Rights Framework: Final Report},
author = {Hugenholtz, P. and Quintais, J. and Gervais, D.J. and Hartmann, C. and Allan, J.},
url = {https://op.europa.eu/en/publication-detail/-/publication/394345a1-2ecf-11eb-b27b-01aa75ed71a1/language-en
https://www.ivir.nl/publicaties/download/Trends_and_Developments_in_Artificial_Intelligence-1.pdf},
year = {2020},
date = {2020-11-27},
abstract = {This report examines copyright and patent protection in Europe for AI-assisted outputs in general and in three priority domains: science (in particular, meteorology), media (journalism), and pharmaceutical research. It comprises an assessment of the state of the art of uses of AI in the three focus areas, and a legal analysis of how IP laws currently apply to AI-assisted creative and innovative outputs. The report concludes that the current state of the art in AI does not require or justify immediate substantive changes in copyright and patent law in Europe. The existing concepts of copyright and patent law are sufficiently abstract and flexible to meet the current challenges from AI. In addition, related rights regimes potentially extend to ‘authorless’ AI productions in a variety of sectors, and the sui generis database right may offer protection to AI-produced databases resulting from substantial investment. However, taking into account the practical implications of AI technologies, the report identifies specific avenues for future legal reform (if justified by empirical evidence), offers recommendations for improvements in the application of existing rules (e.g. via guidelines), and highlights the need to study the role of alternative IP regimes to protect AI-assisted outputs, such as trade secret protection, unfair competition and contract law.},
note = {Report written for the European Commission by P.B. Hugenholtz, D. Gervais, J.P. Quintais, C. Hartmann & J. Allan, completed September 2020. ISBN: 97892762244488},
keywords = {},
pubstate = {published},
tppubtype = {techreport}
}

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Senftleben, M.

Signs Eligible for Trademark Protection - Dysfunctional Incentives and a Functionality Dilemma in the EU

pp. 209-225, 2020, (Chapter in: Cambridge Handbook on International and Comparative Trademark Law, I. Calboli & J.C. Ginsburg (eds.), Cambridge: Cambridge University Press 2020.).

Abstract | Links | BibTeX

@inbook{Senftleben2020f,
title = {Signs Eligible for Trademark Protection - Dysfunctional Incentives and a Functionality Dilemma in the EU},
author = {Senftleben, M.},
url = {https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3717753
https://www.ivir.nl/publicaties/download/Signs_Eligible_for_Trademark_Protection.pdf
https://doi.org/10.1017/9781108399456.014},
year = {2020},
date = {2020-11-26},
pages = {209-225},
abstract = {In the European Union (EU), the criteria for determining a sign’s eligibility for trademark protection are harmonized to a large extent. On the one hand, the trademark legislation and office practices in EU Member States have to keep within the harmonized legal framework set forth in the EU Trade Mark Directive (TMD). On the other hand, the European Union Trade Mark Regulation (EUTMR) provides for a set of eligibility criteria that apply to European Union Trade Marks (EUTM) with equal effect throughout the EU territory. As the rules in the Regulation are in line with those in the Directive, the two legislative instruments constitute a robust body of harmonized norms informing the decision on the registration of a sign as a trademark. The harmonizing effect is enhanced by the fact that national courts have to refer questions relating to the application and interpretation of eligibility criteria to the Court of Justice of the European Union (CJEU).
As in other regions of the world, the criteria applied to determine eligibility for trademark protection are quite flexible in the EU. The open-ended definition of protectable subject matter leaves room for the extension of trademark protection to non-traditional types of marks, such as shape, sound and colour marks. Trademark offices applying EU trademark law have also accepted, for instance, abstract colours and colour combinations, motion and multimedia marks, melodies and sounds, taste marks, hologram marks and position marks.
The analysis of the trend to register non-traditional marks in the EU outlines the legal framework which the CJEU developed to assess the eligibility of non-traditional types of source identifiers for trademark protection. On this basis, it discusses the objective to safeguard freedom of competition and the legal instruments which the CJEU employs for this purpose: the requirement of providing evidence of the acquisition of distinctive character through use in trade and the categorical exclusion of functional signs from trademark protection. Drawing conclusions, it will become apparent that the basic requirement of distinctive character plays an ambiguous role in the regulation of access to trademark protection for non-traditional marks. It is both an obstacle to trademark protection and an incentive for enhanced investment in non-traditional types of marks.},
note = {Chapter in: Cambridge Handbook on International and Comparative Trademark Law, I. Calboli & J.C. Ginsburg (eds.), Cambridge: Cambridge University Press 2020.},
keywords = {},
pubstate = {published},
tppubtype = {inbook}
}

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In the European Union (EU), the criteria for determining a sign’s eligibility for trademark protection are harmonized to a large extent. On the one hand, the trademark legislation and office practices in EU Member States have to keep within the harmonized legal framework set forth in the EU Trade Mark Directive (TMD). On the other hand, the European Union Trade Mark Regulation (EUTMR) provides for a set of eligibility criteria that apply to European Union Trade Marks (EUTM) with equal effect throughout the EU territory. As the rules in the Regulation are in line with those in the Directive, the two legislative instruments constitute a robust body of harmonized norms informing the decision on the registration of a sign as a trademark. The harmonizing effect is enhanced by the fact that national courts have to refer questions relating to the application and interpretation of eligibility criteria to the Court of Justice of the European Union (CJEU).
As in other regions of the world, the criteria applied to determine eligibility for trademark protection are quite flexible in the EU. The open-ended definition of protectable subject matter leaves room for the extension of trademark protection to non-traditional types of marks, such as shape, sound and colour marks. Trademark offices applying EU trademark law have also accepted, for instance, abstract colours and colour combinations, motion and multimedia marks, melodies and sounds, taste marks, hologram marks and position marks.
The analysis of the trend to register non-traditional marks in the EU outlines the legal framework which the CJEU developed to assess the eligibility of non-traditional types of source identifiers for trademark protection. On this basis, it discusses the objective to safeguard freedom of competition and the legal instruments which the CJEU employs for this purpose: the requirement of providing evidence of the acquisition of distinctive character through use in trade and the categorical exclusion of functional signs from trademark protection. Drawing conclusions, it will become apparent that the basic requirement of distinctive character plays an ambiguous role in the regulation of access to trademark protection for non-traditional marks. It is both an obstacle to trademark protection and an incentive for enhanced investment in non-traditional types of marks.

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Senftleben, M.

Intermediary Liability and Trade Mark Infringement - Proliferation of Filter Obligations in Civil Law Jurisdictions?

pp. 381-403, 2020, (Chapter in: Oxford Handbook of Online Intermediary Liability, G.F. Frosio (ed.), Oxford: Oxford University Press.).

Abstract | Links | BibTeX

@inbook{Senftleben2020g,
title = {Intermediary Liability and Trade Mark Infringement - Proliferation of Filter Obligations in Civil Law Jurisdictions?},
author = {Senftleben, M.},
url = {https://www.ivir.nl/publicaties/download/Intermediary_Liability_and_Trade_Mark_Infringement.pdf
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3736919
https://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780198837138.001.0001/oxfordhb-9780198837138},
year = {2020},
date = {2020-11-26},
pages = {381-403},
abstract = {The erosion of the safe harbour for hosting in the EU Directive on Copyright in the Digital Single Market (CDSM Directive) leads to a remarkable climate change in the field of EU copyright law and the civil law jurisdictions of continental EU Member States. Inevitably, it raises the question of potential repercussions on the safe harbour for hosting and filtering standards in trademark cases. Even though online marketplaces are explicitly exempted from the new copyright rules and the CDSM Directive is not intended to neutralize the safe harbour for hosting in trademark cases, the adoption of a more restrictive approach in copyright law may quicken the appetite of trademark proprietors for similar measures in trademark law.
The extension of the new copyright approach to trademark cases, however, is unlikely to yield satisfactory results.Due to the different conceptual contours of trademark rights, a system mimicking the filtering obligations following from the CDSM Directive would give trademark proprietors excessive control over the use of their trademarks in the digital environment. Such an overbroad system of automated, algorithmic filtering would encroach upon the fundamental guarantee of freedom of expression and freedom of competition. It is likely to have a chilling effect on legitimate descriptive use of trademarks, comparative advertising, advertising by resellers, information about alternative offers in the marketplace, and use criticizing or commenting upon trademarked products.
As a result, consumers would receive less diverse information on goods and services and the free movement of goods and services in the internal market would be curtailed. The reliability of the internet as an independent source of trademark-related information would be put at risk. The analysis, thus, leads to the insight that a proliferation of the new filtering obligations in copyright law is undesirable and should be avoided.},
note = {Chapter in: Oxford Handbook of Online Intermediary Liability, G.F. Frosio (ed.), Oxford: Oxford University Press.},
keywords = {},
pubstate = {published},
tppubtype = {inbook}
}

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