Intellectual Property: Copyright Law eJournal最新文献

{"title":"The ‘Two Suns’ of Eu Digital Copyright Law: Reconciling Rightholders’ and Users’ Interests via Interlegality","authors":"Giulia Priora","doi":"10.2139/ssrn.3901354","DOIUrl":"https://doi.org/10.2139/ssrn.3901354","url":null,"abstract":"Copyright law is an emblematic example of the restless relationship between law and technology. The discipline fundamentally aims at striking a fair balance between the interests of copyright owners and users and, as the ongoing process of EU copyright reform demonstrates, digital technologies play a key role in pursuing this objective. The EU transition towards a digital-based copyright paradigm shows how achieving a balanced and context-sensitive legal framework requires taking into account elements from coexisting legal systems as well as from the technological normative ecosystem. Providing concrete examples of the intertwined nature of copyright law and digital technologies when it comes to protecting clashing interests, the article illustrates the ‘interlegal’ pattern emerging from the CJEU, which unveils a composite understanding of law and offers meaningful insights into the future of the EU digital copyright legal framework.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120919744","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Understanding Intellectual Property: Expression, Function, and Individuation","authors":"Mala Chatterjee","doi":"10.2139/ssrn.3894490","DOIUrl":"https://doi.org/10.2139/ssrn.3894490","url":null,"abstract":"Underlying the fundamental structure of intellectual property law—specifically, the division between copyright and patent law—are at least two substantive philosophical assumptions. The first is that the artistic works and inventions are importantly different, warranting differently structured legal regimes: copyright on the one hand, and patent on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, thereby being subjects of distinct legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes them, or why their distinctions should matter to law. This Article defends a novel theory substantiating and unifying these assumptions: that artistic works are author-individuated, whereas inventions are structure-individuated. In other words, drawing on philosophical thinking, thought experiments, and existing practices surrounding expression and functionality, this Articles argues that two acts of authorship cannot result in the same artistic work (only \"structurally identical\" works), but two acts of invention can result in the same invention. The Article then explains how these “individuation theses” vindicate certain core features of intellectual property law, as well as what they mean for different theories of what justifies intellectual property rights. Finally, the Article teases apart possible implications from the individuation theses for refining existing doctrine, including for copyrights’ and patents’ structures, domains, and rules for works with expressive and functional overlap. It concludes by outlining complications that the individuation theses raise for theorizing about authorship and functionality in future work.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"278 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122836759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Virtuous Legal Framework for Content Moderation by Digital Platforms in the EU? The Commission’s Guidance on Article 17 CDSM Directive in the light of the YouTube/Cyando judgement and the AG’s Opinion in C-401/19","authors":"C. Geiger, B. J. Jütte","doi":"10.2139/ssrn.3889049","DOIUrl":"https://doi.org/10.2139/ssrn.3889049","url":null,"abstract":"The Directive on Copyright in the Digital Single Market (CDSM Directive) might fundamentally change the way works and other subject matter protected by copyright will be used on online platforms. Article 17 of the Directive obliges such platforms, based on information they receive from rightholders, to ensure that copyright infringing uploads made by their users are prevented and/or removed by an internalized procedure over which platform operators exercise control. Important enforcement mechanisms are thereby left to private entities who decide what content can (or cannot) be available on their platforms. More problematic is that it seems that the immense number of uploads can only be managed by automated AI-based filtering technologies incapable of properly distinguishing between lawful and unlawful uses. Such an indiscriminate control of uploads creates a serious danger of (over)blocking perfectly legitimate content which potentially results in significant limitations of fundamental rights such as the right to freedom of expression. At the same time, Article 17 also forbids general monitoring of the content available on platforms and clearly mandates to safeguard user’s rights protected by exceptions and limitations to copyright such as quotations, criticism and review or caricature, parody or pastiche. This obligation of result leads to an unresolvable conflict and creates great difficulties for Member States when implementing the provision in a fundamental rights compatible way. Moreover, the lack of clarity of the provision has led Member States to interpret it in significantly diverging ways, jeopardizing the objective of harmonization behind the Directive. Therefore, the interpretation guidelines by the European Commission foreseen by Article 17(10) to help Member States in their implementation efforts were impatiently awaited, in particular since Article 17 is facing an action for annulment before the Court of Justice of the European Union for potentially violating the right to freedom of expression. The Guidance on Article 17 was finally issued by the Commission in June 2021 after several postponements. Although it provides for some useful clarifications and certain safeguards for users of protected works, it unfortunately does not depart from a system based on monitoring and automated filtering and thus is likely to fail to appropriately protect fundamental rights. The Guidance was followed in quick sequence by two important developments concerning content moderation by platforms: the YouTube and Cyando judgment of the Court of Justice of June 22, 2021 and the Advocate General’s Opinion of July 15, 2021 on the compatibility of Article 17 CDSM with freedom of expression. This article analyses the main additions and proposed interpretation tools that the Guidance brings to platform’s content moderation as mandated by Article 17 CDSM in the light of the recent decisions by the CJEU and the Advocate General’s Opinion. It argues that in ord","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127726936","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The EU Commission’s Guidance on Article 17 of the Copyright in the Digital Single Market Directive – A Guide to Virtue in Content Moderation by Digital Platforms?","authors":"C. Geiger, B. J. Jütte","doi":"10.2139/ssrn.3876608","DOIUrl":"https://doi.org/10.2139/ssrn.3876608","url":null,"abstract":"The Directive on Copyright in the Digital Single Market might fundamentally change the way works and other subject matter protected by copyright will be used on online platforms. Article 17 of the Directive obliges such platforms, based on information they receive from rightholders, to ensure that copyright infringing uploads made by their users are prevented and/or removed by an internalized procedure over which platform operators exercise control. Important enforcement mechanisms are thereby left to private entities solely deciding what content can (or cannot) be available on their platforms. More problematic, the immense masses of uploads seem to be only manageable by automated AI-based filtering technologies incapable of properly distinguishing between lawful and unlawful uses, which leads to a serious danger of overblocking of perfectly legitimate content and thus to potentially important limitations of fundamental rights such as the right to freedom of expression. At the same time, Article 17 also forbids general monitoring of the content available on platforms and clearly mandates to safeguard user’s rights protected by exceptions and limitations to copyright such as quotations, criticism and review or caricature, parody or pastiche. This obligation of result leads to an unsolvable conflict and in a great difficulty for Member States of implementing the provision in a fundamental rights compatible way. Moreover, the lack of clarity of the provision has led Member States to interpret it in significantly diverging ways, jeopardizing the objective of harmonisation behind the Directive. Therefore, the interpretation guidelines by the European Commission foreseen by Article 17(10) to help Member States in their implementation effort were impatiently awaited, in particular since the provision is facing an action for annulment before the Court of Justice of the European Union for potential violating the right to freedom of expression. The Guidance on Article 17 finally issued by the Commission in June 2021 after several postponements, although it provides for some useful clarifications and certain safeguards for users of protected works, but unfortunately does not depart from a system based on monitoring and automated filtering and thus is likely to fail protecting fundamental rights in an appropriate manner. This paper analyses the main additions and proposed interpretation tools that the Guidance brings to platform’s content moderation as mandated by Art. 17 CDSM. It argues that in order to establish a virtuous content moderation system and to help Member States to implementing Article 17 in a balanced way, it would have been essential to address the more fundamental concerns when it comes to Article 17, and in particular the fact that privately operated algorithmic tools and not independent assessors based on copyright law’s equilibrium are deciding what content should be available online and to acknowledge the inherent limits and flaws of tec","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128626953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rise of the Copyleft Trolls: When Photographers Sue After Creative Commons Licenses Go Awry","authors":"D. Stewart","doi":"10.2139/ssrn.3844180","DOIUrl":"https://doi.org/10.2139/ssrn.3844180","url":null,"abstract":"Creative Commons licenses typically signal that a photograph uploaded to the web may be used for limited purposes, such as noncommercial uses or with attribution. Some photographers are monetizing this, uploading photos with little commercial value, searching the web for uses with improper attribution, then demanding payment and engaging in high-volume litigation. This study examines more than 30 cases involving photographers suing after a Creative Commons license terminated, finding that courts are showing a willingness to accept users’ arguments of fair use based on transformative purposes and lack of economic harm, as well as general distaste for the arguments of photographers engaging in this kind of litigation.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127508939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Virtual Art and Non-fungible Tokens","authors":"L. Trautman","doi":"10.2139/SSRN.3814087","DOIUrl":"https://doi.org/10.2139/SSRN.3814087","url":null,"abstract":"During early 2021 reports emerge of newfound excitement in the art world as a landmark sale of digital art for $ 69 million takes place. Fueled in part by the wealth recently created from digital currencies, major art dealers such as Christie’s and Sotheby’s embrace this new development. What then are nonfungible tokens, how is this related to the blockchain and what do we know about this ancient market for digital art? It now appears that digital art can be added to the growing list of uses for blockchain technology now becoming a part of modern life. \u0000 \u0000This article proceeds in seven parts. First, we discuss the new and explosive market for digital art. Second, we explore the evolution of the digital world and virtual property. Third, is an explanation and historical account of the blockchain and virtual currencies. Fourth, we explore nonfungible tokens. Fifth, we present a few thoughts about the future of digital property. And last, we conclude. This dramatic extention of blockchain and other digital technology to the world of art and music represents a new and exciting platform for creative expression. We believe this paper is a valuable addition to the literature by providing a readable introduction and overview of what is now known about the likely impact of blockchain technology and nonfungible tokens to music and art. This important development should have significant impact on the future of innovation and property law.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"206 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127944057","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Digital Exhaustion: Furthering Social Justice in a Streaming-Dominated Copyright Ecosystem – Critical Remarks after the ECJ’s Tom Kabinet Judgment","authors":"Péter Mezei","doi":"10.2139/ssrn.3791934","DOIUrl":"https://doi.org/10.2139/ssrn.3791934","url":null,"abstract":"The role of copyright law in furthering social justice is blurred. On the one hand, copyright law aims to guarantee a more or less exclusive protection. On the other hand, copyright law also intends to strike a fair balance between the interests of rightholders and the society. Such balancing tools include e.g. various limitations and exceptions, the limited term of protection, procedural and fundamental rights based safeguards. Most often, these balancing tools remain “objective” in nature, and apply to all members of a given class of stakeholders. Copyright norms also further socially desirable goals, but these norms usually lack “social justice” perspectives. This paper intends to highlight the key social justice role of the first sale or exhaustion doctrine, especially in the light of the most recent case law related to the applicability of the doctrine in the digital domain.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128452455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Copyright Guidance for Using Films in Online Teaching During the COVID-19 Pandemic","authors":"Emily Hudson","doi":"10.2139/ssrn.3667025","DOIUrl":"https://doi.org/10.2139/ssrn.3667025","url":null,"abstract":"This Guidance discusses copyright options for using feature films and other audiovisual content in online teaching. It responds to concerns amongst UK higher education institutions (HEIs) that moving education online as a result of the COVID-19 pandemic raises new copyright risks. At many HEIs, in-person lectures may not be possible in the coming academic year due to COVID-related social distancing requirements. Even if some face-to-face teaching is possible, many students will undertake some or all of their studies remotely. One particular concern has been ensuring that Film Studies departments can screen feature films to students online, this being an essential part of those programmes. But lecturers in other disciplines also use a variety of films in their teaching, making these copyright questions of broader relevance. HEIs are keen to know whether they may use audiovisual content in online teaching without a licence. The key take-home message from this Guidance is that there are a number of exceptions in the Copyright, Designs and Patents Act 1988 (CDPA) on which HEIs may be able to rely. It focuses in particular on the fair dealing exception for illustration for instruction in s. 32 of the CDPA, and quotation in s. 30(1ZA).","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126447638","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Authorial Works Protectable by Copyright","authors":"J. Pila","doi":"10.4324/9781003156277-6","DOIUrl":"https://doi.org/10.4324/9781003156277-6","url":null,"abstract":"This Chapter considers the European conception of the authorial works protectable by copyright, and the approach of the Court of Justice to determining whether an authorial work exists. To that end, it distinguishes three legal issues: the meaning of the term “authorial work”, the essential properties of an authorial work, and the degree to which a subject matter must possess those properties in order to be an authorial work for European copyright purposes. Only once these issues are resolved is it possible to assess a given subject matter and determine whether it is an authorial work requiring protection in fact. The Chapter surveys the current jurisprudence in respect of these issues. In the course of doing so, it suggests that the Court of Justice’s formalistic conception of the constitutive properties of authorial works lacks coherence and fails convincingly to explain existing case law, and is inconsistent with the usual meaning of “authorial works” in ordinary language, and with the nature of copyright as an author’s right.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-07-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128258453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Las obras huérfanas: presupuestos teórico-jurídicos para su efectiva protección en Cuba ante el actuar de bibliotecas públicas (The Orphan Projects: Theoretical-Legal Budgets for Their Effective Protection in Cuba Before Acting in Public Libraries)","authors":"Elianys Diego Puentes, Ana María Pereda Mirabal","doi":"10.18601/16571959.n29.01","DOIUrl":"https://doi.org/10.18601/16571959.n29.01","url":null,"abstract":"<b>Spanish Abstract:</b> En Cuba no existe referencia en la Ley de Derecho de Autor a la protección de las obras huérfanas, y en consecuencia de sus creadores, aun cuando sí encuentra un reconocimiento expreso el límite a favor de bibliotecas. Ante la necesidad de que las bibliotecas públicas, en su actuar diario, puedan hacer uso de las obras huérfanas, sin que ello constituya una violación de las facultades autorales de dichos creadores, la presente investigación fundamenta los presupuestos teórico-jurídicos que deben amparar la protección en Cuba de obras huérfanas para evitar situaciones de conflicto entre la actividad que realizan las bibliotecas públicas y la protección de los derechos de sus autores. <br><br><b>English Abstract:</b> In Cuba there is no reference in our Copyright Law to the protection of orphan works, and consequently of their creators, even if the limit in favor of libraries finds express recognition. Given the need of public libraries in their daily actions to make use of orphan works, without constituting a violation of authors rights, this research sets up bases for theoretical-juridical assumptions that must cover the protection in Cuba of orphan works in order to avoid situations of conflict between public libraries’ activities of public libraries and the protection of authors’ rights.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127150913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}