Latest news
CALL FOR SUBMISSIONS 2023
Do you love intellectual property as much as we do? Do you want to showcase your intellectual property related article, book review, or case note in our journal?
If your answer is yes, submit your work to us before 28 March 2023 to be considered for publication in our first issue for 2023.
Submissions after the deadline are also welcome and will be considered for later issues.
From Open Access to Open Science 2022!
The conference (live and streamed) organized by Stockholm IP Law Review was a great opportunity to present and debate numerous concurring aspects related to Open Access publications and Open Science, everything from contract law to human rights and labor law to intellectual property rights! Sofie Wennström, Managing Editor at the Stockholm University Library, discussed the work of the Stockholm University library as well as of the Stockholm University Press on Open access issues, while Prof. Helle Porsdam focused on the human right to science. Prof. Jens Schovsbo presented copyright-related challenges while Prof. Petra Hertzfeld-Olsson discussed labor-law related issues. LenaKim Kyoung Svenungsson Arctaedius, legal counsel at the Office of the President of Stockholm University, presented Stockholm University policies and contract-based experiences in the field. This first part of the conference was concluded with a panel discussion, with the participation of the speakers as well as of David Kinell, Head of Author Management at Norstedts Juridik, who brought in the very interesting perspective of publishers.
The conference closed with a very interesting presentation of alternative ways of spreading research results and publishing, from Patrick Joyce, researcher, and Yashar Mansoori, post-doc at Chalmers, who presented among other things the ResearchHub.
From open access to open science – The interface between IP, academia and the market
SIPLR is proud to present the return of its annual in-person conference.
This year, the conference “From open access to open science – The interface between IP, academia and the market” will discuss the current status of open access for research and academia, as well as future developments involving the access and creation of new IP in such platforms. The debate will include speakers from academia and the publishing industry, covering aspects from IP to labour law.
The conference will take place in Stockholm on 01 June 2022, from 1:00pm to 5:30pm (CEST).
2020 SIPLR Conference – IP in the Digital Environment
On 3 December 2020, the Stockholm Intellectual Property Law Review held their annual conference, this year looking at the topic of ‘IP in the Digital Environment’. First off, we would like to extend our gratitude to all of our sponsors. They have been a great support in helping us realise our biannual journal as well as organising this conference!
It was our honour to host Sir Richard Arnold as the keynote speaker on the topic of website and streaming server-blocking injunctions. During his speech he addressed the different ways in which liability can be attributed in general, before diving into the more specific notion of intermediary liability of websites and streaming services under UK as well as EU legislation. This notion of liability is created when the platform, acting as an intermediary, has the duty to prevent the users of the platform from committing IP infringement. The platform is not equally liable for the infringement as the primary infringer would be.
Interview with Lord Justice Arnold By Riana Harvey and Alexandre Miura
Lord Justice Arnold is renowned in the UK and the EU for his judicial contributions to the field of intellectual property (IP), and currently sits as a Justice of Appeal in the England and Wales Court of Appeal. As a judge, he has made 14 referrals to the Court of Justice of the European Union (CJEU) between 2004 and 20191. Our Chief-Editors had the pleasure of talking with him and getting his opinion on a broad range of topics, from recent case law developments, to the future of IP policies in the UK and in the EU, to website blocking and, finally, some valuable thoughts for IP students who wish to enter the field in the future.
Some similarity but not a minimum degree of similarity?: Are narrowly defined levels of abstraction in the similarity of goods-test contrary to EU trade mark law policy? – By Gustav Gierlöff –
A minimum degree of similarity among goods (and services) is required for a global appreciation of likelihood of confusion to be carried out under EU trade mark law. The CJEU clarified already back in the 1990’s what factors could be relevant when the similarity-test is carried out, but has never really further elaborated on the similarity-test. The assessment of whether similarity is present is dependent on the preceding assessments of how similar the goods must be for them to be deemed similar at a minimum degree. The article argues that trade mark law policy requires that such preceding assessments must take into account such circumstances which the relevant public may come to rely upon, when making up their mind as to whether the goods come from the same commercial origin. Origin confusion considerations may therefore play an important role already at the stage of the likelihood of confusion-test when the similarity of goods-test is carried out.
Artificial Intelligence creates, invents … and challenges Intellectual Property Law – Article from #2 2020
Recent developments in technology are leading to the production of machines with the intellectual capacity to create and invent, just like humans. Artificial Intelligence (AI) is challenging copyright and patent law, as the actual author and inventor is no longer a natural person, but a machine. This article focuses on creative and innovative outputs generated autonomously by AI and scrutinises whether and to what extent they are eligible for protection through traditional Intellectual Property (IP) rights. Lastly, this article seeks to determine whether the current legal system is able to deal with this phenomenon, as well as to present a solution that can do so, in the form of a sui generis system tailor-made for AI-generated materials.
Inclusive Rights of Copyleft – Article from #2 2020
The current legal climate does not yet provide sufficient clarity on the workings, limits and rights conferred through licences granted on Free Open Source Software (FOSS). Generally, copyright is accepted as applying to FOSS and therefore the granted licence; by contrast, whether patents on the computer implemented invention (CII) encompassed in the software are implicitly licensed as well, is less clear. In terms of copyright, this article will examine the lack of clarity and unison concerning certain definitions in the most commonly used licenses, including the scope of the concepts of “distribution” and “derivative” work with GNU’s General Public License (GPL) as a guideline. Patent inclusion within the grant will be set out against the nature of patent protection within the field; as well as complications as concerned implied license grants or the lack thereof.
IP IN THE DIGITAL ENVIRONMENT
We are delighted to invite you to our online conference: ‘IP in the Digital Environment’, to be held on Thursday 3 December 2020, from 14:30-16:30 CET.
The keynote address, entitled ‘Website-Blocking Injunctions and Streaming Server-Blocking Injunctions: The State of the Art’, will be delivered by Sir Richard Arnold, Lord Justice of Appeal at the Court of Appeal of England and Wales.
Other speakers will include (in alphabetical order): Karin Cederlund (Sandart & Partners) and Stefan Johansson (Patent and Market Court), who will discuss ‘Website blocking from the Swedish perspective’; and Eleonora Rosati (Stockholm University), who will address the topic of ‘Roasting the host: from the safe harbour to the direct liability of platforms in IP cases’.
This event will provide an excellent forum to analyse the latest developments and case law in the field of online IP enforcement, including with regard to injunctions against online intermediaries and the direct liability of such intermediaries, as well as in light of recent legislative developments (e.g. EU Copyright Directive 2019/790).
You can sign up for the event here: https://www.eventbrite.com/e/ip-in-the-digital-environment-tickets-99006857175.
If you have any further questions, please contact Frantzeska Papadopoulou, Alexandre Miura or Riana Harvey.
Towards fair pricing in technology trade and licensing – Article from #1 2020
In today’s complex and digital business landscape, innovation is typically not an effort of a lonely genius or an activity confined to a single corporate R&D lab. Instead, the innovation process often involves open innovation, technology trade, and intellectual property (IP) licensing between multiple firms in what is sometimes referred to as an innovation ecosystem. While this interaction is conducive to value creation, it also creates a pressing need for better methods and principles for fairly capturing and sharing value among contributors. The purpose of this paper is to shed light on the plurality and specificity of fairness principles, how they appear in IP negotiation experiments with 105 participants, and what outcomes they generate compared to competitive behavior. The paper especially highlights how investments and the structure of innovation actors, artifacts (such as patents), and activities impact fairness.
The Direct Liability of Online Intermediaries for IPR Infringements – Article from #1 2020
One of the most interesting and relevant developments in respect of online intermediaries concerns the emerging possibility – especially in the copyright field – to go beyond the traditional approach to their liability based on the safe harbour legislation and, with that, the system of secondary/accessory legislation and root, instead, their liability within a primary/direct liability regime, also in relation to user activities and user-uploaded content. This contribution explains how the Court of Justice of the European Union has come to consider the possibility of direct liability of online intermediaries in relation to user activities and undertakes a reflection on the implications of said approach, also with regard to its application to less egregious scenarios than piracy-focused platforms and other IP rights (notably: trade marks).
Copyright in the digital age – Article from #1 2020
This article evaluates the interpretation of the right of communication to the public, as per Art. 3(1) of Directive 2001/29/EC (the InfoSoc Directive), within the context of hyperlinking on the internet undertaken by the Court of Justice of the European Union (CJEU) in its case law over the last years on EU level as well as by the Federal Court of Justice in Germany (BGH). In order to determine how the interpretation – in particular the development of the new public criterion by the CJEU – influences the interests of authors and users, and the functioning of the internet, an in-depth analysis of the case law of the CJEU and the BGH is conducted. Thereby, the conditions under which the setting of a hyperlink infringes the right of communication under Art. 3(1) of the InfoSoc Directive are outlined. In this framework, the influence of the CJEU on the jurisprudence of the BGH is discussed. Ultimately, this article assesses the extent to which CJEU case law has given rise to alternative proposals regarding the treatment of hyperlinks, discussing both challenges and endorsements.
Blockchain solutions for the online music industry – Article from #1 2020
New technological developments are changing the legal status of copyright. As blockchain technology seems to be revolutionising modern times, it is difficult to underestimate the hype around this technology. This article introduces various legal aspects of the application of blockchain technology in the copyright sphere, with specific reference to the analysis of the online music industry in its modern status. Within this framework, it could be assumed that blockchain technology might represent an opportunity to reimagine and revamp the protection of copyright by implementing a blockchain-enabled system with the characteristics of being trustworthy, transparent, more affordable, highly standardised, time-stamped and automated. Although still in its infancy, the potential application of this technology in relation to the music industry is of particular interest, as it appears to offer solutions to problems that artists, musicians, performing artists, and composers have encountered for decades. It promises a way out of the current deadlock between artists and intermediaries and it offers a foundation that can bring together the entire value chain and revamp the music industry by letting go of the outdated, hierarchic framework. The complexity of the current system will take some time to unravel and rebuild. Nevertheless blockchain applications could lead to better protection of ownership, to artists having more say in deciding how and to whom the works are licensed and to faster, prompter remuneration of holders in the music industry, allowing artists to make a living out of creating music.
A note on artificial intelligence and intellectual property in Sweden and the EU – Article From #1 2020
Artificial intelligence (“AI”) is a key driver of the fourth industrial revolution. AI systems and machine learning technologies are already having a significant impact on the development, production and sales of a vast range of economic and cultural goods and services.
Inevitably, seeing that AI blurs the boundaries between the physical, digital, and biological worlds, AI intersects with the Swedish and European intellectual property (“IP”) framework at several different points. In fact, the technological evolution brings into question a number of fundamental IP concepts relating to, e.g. IP protection of creative or innovative results generated by intelligent software. In addition, seeing that AI technologies are already affecting many business sectors and are likely to become even more essential to modern life in the future, the IP protection of AI technologies as such will be important to incentivize continued technological research and development. Given how fast AI is evolving, more legal and economic research is needed to ensure that IP law will continue to encourage new technologies, artistic expressions and inventions. Policymakers should discuss and determine whether the current state of IP law, including the humanistic approach to IP protection, meets tomorrow’s needs. Arguably, contemporary IP law may have to be changed or at least supplemented by new rules and principles, to ensure that the law will serve its purpose and remain relevant in the new AI era.
Sequential cumulation of copyright with protection of products of industrial design. A critique, and an alternative proposal – Article from #2 2019
Until the second half of the twentieth century, copyright protection of works that at the same time had a practical use and an aesthetic appeal was based on the premise of ‘separability’, meaning different sets of rules for protecting its aesthetic and utilitarian features. This premise was coherent with the typical mode of production consisting of artistic elements added to the functional ones. This approach evolved in a more organic functionalist conception of the aesthetics of material goods under the activity of industrial design, i.e. series production of objects for practical use, where functional and aesthetic profiles are merged into one. This rendered separate legal protection inherently problematic, but also resulted in negative impacts to competition. Against the currently dominant view of most interpreters and adopted by the European Court of Justice, I propose an alternative interpretation in the scope of EU law to allow for the parallel (but not cumulative) coexistence of the two types of protection, each with its own specific scope to be determined on the basis of the difference in the objective market use of the work of design, which could favour dynamic competition and ultimately benefit the majority of consumers.
Food for thought – Article from #2 2019
The purpose of the article is to assess which areas of IP law, if any, and under which criteria, offer legal protection for signature dishes and plating arrangements that are identified and commonly associated with a specific chef or restaurant. The two main concepts explored in the article are: (i) the question whether food can be considered as art for purposes of copyright; and (ii) whether the avenue of trade dress as suggested by scholars in the U.S. hold equal promise under EU trade mark and design law. The outcomes within the respective spheres of copyright, trade mark and design law have proven in the affirmative; i.e. in principle protection is available for signature dishes and plating, subject to certain qualifications. However, it is found that potential IP right holders in the culinary industry elect not to acquire and/or enforce these rights. The question whether IP offers protection for signature dishes and plating remains answered from a theoretical point of view and legal certainty will only be achieved once the CJEU gives a decision on the matter – which in turn would only occur if the identified potential IP right holders start to litigate in an attempt to potentially enforce their rights.
Unravelling the story behind the Intellectual property of Halloumi Cheese; a ‘State Affair’ for Cyprus – Article from #2 2019
This article evaluates the intellectual property (IP) protection of Halloumi Cheese, as an authentic traditional product of Cyprus focusing particularly on trademarks (TM) and Geographical Indications of Origin (GIs). In examining the protection afforded under these two spheres, the challenges that the Halloumi cheese has undergone are analysed. The main purpose of this article is to untangle the confusion regarding the intellectual property (IP) of the cheese of Cyprus while establishing the current stage of IP protection of Halloumi and achieve a better suited ‘intellectual property protective scheme’ for the culinary product. The essentiality of this lies in its need to be valued and recognised properly for the benefit of Cyprus and Europe’s heritage.
THE “MACEDONIAN” SAGA – Article from #2 2019
Rights about the commercial use of the name“Macedonia” have been the object of an ongoing dispute between Greece and North Macedonia for almost three decades. The issue was partially settled on 12 June 2018, when both countries agreed upon the terms of the Prespa Agreement. However, despite representing a long-awaited improvement, core aspects of the commercial use of the name “Macedonia” as trade mark and geographical indication are yet to be discussed. Even though the Agreement states that North Macedonia is required to change the name of all the official government and government related institutions, there is still uncertainty about how private companies may explore the name and its association with their products. In such cases, the Agreement relies on future negotiations between the two countries, an issue further clouded by North Macedonia’s plea to join the European Union. Specifically in the case of commercial names, trade marks, brand names and all relevant matters, it also provides for establishing an international group of experts, with representatives from both countries and transnational organizations. As the negotiations unfold, the future is still unclear.
European copyright law and the text and data mining exceptions and limitations – Article from #2 2019
The newly adopted European Union (EU) Directive on copyright and related rights in the Digital Single Market1 (DSM Directive) provides for text and data mining (“TDM”) exceptions for the first time at an EU legislative level. The TDM provisions are a step in the right direction, but the situation remains uncertain for innovators and researchers alike.2 The DSM Directive’s TDM provisions demonstrate the EU legislature’s lack of understanding of the technical realities of TDM, and the financial and contractual limitations which are faced by those performing such processes, especially companies etc. in the start-up phase. Through these provisions, the EU has made it difficult for valuable TDM output to originate from European-based operators. To drive innovation in the EU and further the commitment to the digital single market, it would have been more desirable for the EU to implement a broad, all-encompassing TDM exception, not been capable of being overridden3 nor subject to caveats, as is the case in other key innovative jurisdictions. By creating and maintaining a restrictive environment for TDM, which is often a key component of Artificial Intelligence (“AI”) and machine learning, the EU runs the risk of losing a foothold in a growing industry, and causing an exodus of key talent to other TDMfriendly jurisdictions. However, the TDM provisions contained in the DSM Directive are at least one step in the right direction and one can hope that future legislative development in Europe and a sensible approach by Member States will take place in the foreseeable future.
The Monopoly case – EUTM re-filings and the concept of bad faith – Article from #2 2019
An European Union Trade Mark (EUTM) can be declared invalid if the applicant acted in bad faith when filing the trade mark application. The concept of ‘bad faith’ is not defined in the EUTM legislation, but the Court of Justice of the European Union (CJEU), has in several cases interpreted the meaning of bad faith and the concept is constantly evolving. On 22 July 2019, the Second Board of Appeal at the European Union Intellectual Property Office (EUIPO) delivered a decision in which the EUTM ‘MONOPOLY’ was partially invalidated (case No. R 1849/2017-2). Most importantly, the Board stated that the applicant acted in bad faith when re-filing an already registered word mark, for goods and services covered by its earlier EU registrations.