Inaugural address at the 3rd BRICS International Competition Conference, here.
Thursday, November 21, 2013
Software patent reform just died in the House, thanks to IBM and Microsoft
Washingtonpost.com, here.
Wednesday, November 20, 2013
Hidden efficiencies: On the relevance of business justifications in abuse of dominance cases
H. Friederiszick, L. Gratz, here.
Convention 108 with Additional Protocol and Modernisation proposals
CAHDATA, Council of Europe, here.
Tuesday, November 19, 2013
The Rise of Innovative Business Models: Content Delivery Methods in the Digital Age
Hearing, Committee on the Judiciary, here.
Monday, November 18, 2013
Study on Intellectual Property and Brain Drain - A Mapping Exercise
WIPO Secreteriat, peer-reviewed by F. Lissoni, here.
Information Resellers - Consumer Privacy Framework Needs to Reflect Changes in Technology and the Marketplace
US Government Accountability Office, here.
Friday, November 15, 2013
Thursday, November 14, 2013
Tuesday, November 12, 2013
Italy: Open Data Action Plan
Department for Public Administration in cooperation with the Agency for Digital Italy (AgID), here.
Content Creation, Access to Information, Open Internet
Workshop, Internet Governance Forum, Transcript here.
La legge italiana sull’accesso aperto agli articoli scientifici: l’inizio di un percorso normativo
R. Caso, P. Galimberti, here.
Monday, November 11, 2013
Friday, November 08, 2013
The quest for behavioural Antitrust. Beyond the label battle, towards a cognitive approach
L. Arnaudo, Agcm Collana "Temi e problemi", qui.
"It's not always fun to live in an authors' rights country"
B. Hugenholtz, Flexing Authors’ Rights, Peter Jaszi Distinguished Lecture on Intellectual Property, Video here (from 1:14:16).
"It's not always fun to live in an authors' rights country" at 1:23:38.
Highly recommended, in the following some notes I took:
Who could be against "fair" use in Europe and elsewhere?
A number of historic reasons:
- civil law tradition: the law should be made by the people, the judge should be no more than "la bouche de la loi" (mouthpiece of the law)
- authors' rights: different rationale, constitutions at national level hardly ever mention intellectual property: there to protect authors as a matter of natural justice; exceptions narrowly interpreted. As part of that, the moral rights' tradition.
Broader concerns:
- affecting legal certainty
- opening the floodgates to piracy
- fear of US legal imperialism ("fair US to us")
Legal arguments:
- fair use in conflict with the Berne Convention, with TRIPS
But:
- civil law is already dominated by general principles, and unwritten law also a source of law
- generally, moral rights do not impede the introduction of more flexible norms
- public interest and balancing of rights already part of the discussion
- fair use is not wild, it is fairly predictable, despite being open
- 2010 "Vorschaubilder" case involving thumbnails: German Court looking for ways to justify them, and cooked up a theory of "implied consent." Reasonable solution, but we need more legal certainty.
- three-step test as a safety net
Legal transplants rarely work, but in Europe we need more flexibility, and the European and international legal frameworks do tolerate it (problems exist, but are not insurmountable).
Evidence pointing in the direction of flexibility:
- Recital 2, InfoSoc Directive: "The European Council, meeting at Corfu on 24 and 25 June 1994, stressed the need to create a general and flexible legal framework at Community level in order to foster the development of the information society in Europe."
Limitations and exceptions (LE) rather loosely circumscribed, rather like prototypes (eg., art. 5(3)(d) InfoSoc Directive: "quotations for purposes such as criticism or review"; (i) incidental inclusion of a work or other subject-matter in other material; (k) use for the purpose of caricature, parody or pastiche; not even the French know what pastiche means...perhaps user generated content?), with ample room for maneuver (Sweden, very broad quotation exception: quote to the extent necessary for the purpose, in accordance with proper uses).
Three-step test not that much of a problem:
- "certain special cases": flexible norms can be reasonably predictable, eg fair use is not all encompassing
"It's not always fun to live in an authors' rights country" at 1:23:38.
Highly recommended, in the following some notes I took:
Who could be against "fair" use in Europe and elsewhere?
A number of historic reasons:
- civil law tradition: the law should be made by the people, the judge should be no more than "la bouche de la loi" (mouthpiece of the law)
- authors' rights: different rationale, constitutions at national level hardly ever mention intellectual property: there to protect authors as a matter of natural justice; exceptions narrowly interpreted. As part of that, the moral rights' tradition.
Broader concerns:
- affecting legal certainty
- opening the floodgates to piracy
- fear of US legal imperialism ("fair US to us")
Legal arguments:
- fair use in conflict with the Berne Convention, with TRIPS
But:
- civil law is already dominated by general principles, and unwritten law also a source of law
- generally, moral rights do not impede the introduction of more flexible norms
- public interest and balancing of rights already part of the discussion
- fair use is not wild, it is fairly predictable, despite being open
- 2010 "Vorschaubilder" case involving thumbnails: German Court looking for ways to justify them, and cooked up a theory of "implied consent." Reasonable solution, but we need more legal certainty.
- three-step test as a safety net
Legal transplants rarely work, but in Europe we need more flexibility, and the European and international legal frameworks do tolerate it (problems exist, but are not insurmountable).
Evidence pointing in the direction of flexibility:
- Recital 2, InfoSoc Directive: "The European Council, meeting at Corfu on 24 and 25 June 1994, stressed the need to create a general and flexible legal framework at Community level in order to foster the development of the information society in Europe."
Limitations and exceptions (LE) rather loosely circumscribed, rather like prototypes (eg., art. 5(3)(d) InfoSoc Directive: "quotations for purposes such as criticism or review"; (i) incidental inclusion of a work or other subject-matter in other material; (k) use for the purpose of caricature, parody or pastiche; not even the French know what pastiche means...perhaps user generated content?), with ample room for maneuver (Sweden, very broad quotation exception: quote to the extent necessary for the purpose, in accordance with proper uses).
Three-step test not that much of a problem:
- "certain special cases": flexible norms can be reasonably predictable, eg fair use is not all encompassing
- "prejudice the legitimate interests of the rightholder": flexible norms do not necessary prejudice authors' and rightholders' rights
- nobody has ever complained to the WTO about the US fair use rule.
- the Berne three-step conceived against the background of all LE existing at that time, fair use included (US not part of Berne at that time, but future adherence was already part of the picture).
Discussions on flexibilities in the EU
Luckily, the idea of introducing more flexibility is gaining momentum at the EU political level, inspired by the UK and Irish examples among others. Also the Netherlands is forcefully making that point in Europe.
Irish Copyright Review Report suggesting the introduction of some sort of fair use, complementing exiting LE.
Kind of flexibilities that work: two approaches
- Extend existing LE to create more room for maneuver
- the South Korean/Irish approach: flexibility alongside circumscribed LE (civil law) - rule of complementary flexibility; similarly, the Wittem project - European Copyright Code advocating it, at article 5.5:
"Further limitations
Any other use that is comparable to the uses enumerated in art. 5.1 to 5.4(1) is permitted provided that the corresponding requirements of the relevant limitation are met and the use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author or rightholder, taking account of the legitimate interests of third parties."
Who cares about flexibilities in copyright? Everybody is infringing copyright anyway on a daily basis (only speaking for the Netherlands)
Law abiding citizens, and students.
Institutional users (such as libraries) and innovators: chilling effects.
Authors themselves.
Everybody believing in copyright, and Prof. Hugenholtz certainly does: increasing gap between social norms of the people "in Internet" and the law of copyright; social legitimacy of copyright currently under serious threat.
- the Berne three-step conceived against the background of all LE existing at that time, fair use included (US not part of Berne at that time, but future adherence was already part of the picture).
Discussions on flexibilities in the EU
Luckily, the idea of introducing more flexibility is gaining momentum at the EU political level, inspired by the UK and Irish examples among others. Also the Netherlands is forcefully making that point in Europe.
Irish Copyright Review Report suggesting the introduction of some sort of fair use, complementing exiting LE.
Kind of flexibilities that work: two approaches
- Extend existing LE to create more room for maneuver
- the South Korean/Irish approach: flexibility alongside circumscribed LE (civil law) - rule of complementary flexibility; similarly, the Wittem project - European Copyright Code advocating it, at article 5.5:
"Further limitations
Any other use that is comparable to the uses enumerated in art. 5.1 to 5.4(1) is permitted provided that the corresponding requirements of the relevant limitation are met and the use does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author or rightholder, taking account of the legitimate interests of third parties."
Who cares about flexibilities in copyright? Everybody is infringing copyright anyway on a daily basis (only speaking for the Netherlands)
Law abiding citizens, and students.
Institutional users (such as libraries) and innovators: chilling effects.
Authors themselves.
Everybody believing in copyright, and Prof. Hugenholtz certainly does: increasing gap between social norms of the people "in Internet" and the law of copyright; social legitimacy of copyright currently under serious threat.
Strategic Underinvestment as an Abuse of Dominance under EU Competition Rules
P. Merlino, G. Faella, here.
Thursday, November 07, 2013
Inspiring Creativity - Promoting Culture and Creative Industries across Europe
European Territorial Cooperation, here.
Wednesday, November 06, 2013
Tuesday, November 05, 2013
Commissioner Michel Barnier welcomes the trilogue agreement on collective rights management
European Commission, Memo here.
Unclear, torturous path for EU ratification of Marrakesh Treaty
Tacd-ip.org, here.
"Maria Martín Prat suggested that new EU copyright legislation proposed sometime in 2014 could incorporate the Marrakesh Treaty and that this might be needed before ratification to harmonize EU member state laws on exceptions to copyright. This proposal that would mean a number years of delay in the ratification of the treaty was criticized by a number of MEPs present. Martin Prat gave as an example of why a new law would be needed the presence of “dyslexic persons” in the Treaty which is not covered by EU copyright exceptions legislation."
Dyslexia not included?!?
"Maria Martín Prat suggested that new EU copyright legislation proposed sometime in 2014 could incorporate the Marrakesh Treaty and that this might be needed before ratification to harmonize EU member state laws on exceptions to copyright. This proposal that would mean a number years of delay in the ratification of the treaty was criticized by a number of MEPs present. Martin Prat gave as an example of why a new law would be needed the presence of “dyslexic persons” in the Treaty which is not covered by EU copyright exceptions legislation."
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society
Art.5(3)
(b) uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
Ouverture des données publiques. Les exceptions au principe de gratuité sont elles toutes légitimes ?
Rapport ("Trojette") au Ministre, ici.
Informational Hearing on Patent Assertion Entities
B. Love, Testimony, California Assembly Select Committee on High Technology, here.
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