Issue #2 – 2021

Editorial

One more year has reached its end. And it is not just any year, it is one more of these COVID-19 years. Here at Stockholm University, teaching in the classroom has been possible only since November, and still a number of activities take place on Zoom and the like. That being said, meeting our new master students has been great both on Zoom and irl, and the work carried out by the new student editing committee has been admirable. The Institute of Intellectual Property and Market Rights at Stockholm University has been very active during this year. The Institute organized several interesting digital seminars, with over six hundred participants from all over the world, such as the ”The Year of the Covid Vaccines” and ”The Making of Copyright”. And while we were working hard with our seminars, teaching and the production of this journal, a lot was happening in our IP world. First of all, the implementation of the Copyright in the Digital Market (DSM) Directive. The DSM Directive has been a controversial legislative act, the subject of extensive lobbying by rightsholders and platforms alike, and its adoption came only 2.5 years after it was first proposed by the Commission. During the past year we have followed the race of several EU members states to implement its provisions in national legislation, several months after the set deadline of the 7th of June 2021. In fact, a lot has happened since the time when the directive was negotiated until now, with the COVID-19 pandemic bringing digital consumption of copyright protected works under a new light. On the patent law front, following the recent developments and the further ratifications of the Protocol on the Provisional Application of the UPC Agreement (or “PAP-Protocol”), the unitary patent system is expected to be up and running by mid-2022. After all these years of waiting and the disappointments that came along with Brexit and the constitutional challenges in Germany, it seems now that the UPC really is on its way. There are furthermore, several events to look forward to. The Stockholm IP Law Conference is scheduled for the 7th of June 2022 in Stockholm. The ISHTIP conference will take place in Gothenburg (20-22 June 2022) and the yearly ATRIP conference in Copenhagen (20-23 June 2022). The production of this issue of the journal was marked by changes made at the editorial team. First of all our new student editors-in-chief, Alexandre Miura and Pia Riemenschneider, who have been the great pillars in the production of this issue! Associate professor Merima Bruncevic (University of Gothenburg) joined during the year as a content editor. Merima’s research focuses on the interface between art and law, law and cultural heritage, while among her special interests are legal theory, continental philosophy and philosophical methods applied to law. The co-founder of the journal, Åsa Hellstadius, has left the editing team but remains part of the board of the journal and thus a person of central importance for the further development of our journal. Please do take a look at the presentation of our amazing student editors, without whom this journal would not be possible!
Wishing you a nice holiday season, and see you in 2022 with a new issue!

Frantzeska Papadopoulou, Professor

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The effectiveness of blocking injunctions against ISPs

in respect of online copyright infringement in Europe

– By Despoina Farmaki –

ABSTRACT

Blocking injunctions against Internet Service Providers (ISP) are a common and valuable remedy in cases of online copyright infringement. This paper focuses on the effectiveness of blocking injunctions against ISPs in Europe. An understanding of the key legal concepts and procedures is provided. Emphasis is given to the interpretation of the “act of communication to the public”. Doctrinal and comparative research methods have been deployed to examine how the selected jurisdictions respond to blocking injunctions. The paper provides recommendations to increase the effectiveness of blocking injunctions through EU harmonisation, while it also provides alternative measures to tackle online copyright infringement.

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A European solution for Text and Data Mining

in the development of creative Artificial Intelligence

– By Kristina Christensen –

ABSTRACT

In today’s data-driven society, Text and Data Mining (TDM) has become an essential tool in managing Big Data in its different sizes and forms, which is also an inherent part of Artificial Intelligence (AI) research. TDM techniques highly depend on datasets derived from TDM to self-learn and to make autonomous decisions. Through the lens of copyright and related rights, TDM may be used to train AI for the purpose of AI-driven creativity, where AI has already helped in completing paintings, composing music and producing movie trailers. However, since TDM typically involves the acts of copying and/or extracting of works and other subject-matter protectable by copyright and related rights, legal restrictions under the EU acquis might be in place. In this regard, the importance of TDM has been acknowledged by the EU Legislators, which introduced two mandatory exceptions for TDM contained in articles 3 and 4 of the Directive 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive). The present article analyses the relationship between TDM and AI-driven creativity by, firstly, explaining the notion of TDM and common technical steps within its process. Secondly, it examines the copyright and related rights issues regarding TDM and possible pre-existing exceptions and limitations under the EU acquis that might be applicable. Lastly, this article critically analyses the mandatory TDM provisions under the DSM Directive and concludes that these still contain shortcomings that may significantly restrict the possibility to undertake unlicensed TDM for AI creative purposes within the EU.

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The protection of fictional characters under EU intellectual property law

– By Valentine Labaume –

ABSTRACT

Fictional characters, may encounter different issues over the course of their existence. On the one hand, a third party could employ a fictional character for a different work than the one it was originally a part of. On the other hand, character creators have the possibility to register the name or physical appearance of a character as a trademark to market products in their likeness. Intellectual property, more specifically trademark law for the character’s business life, and copyright law, thus becomes a necessity in the two hypotheses outlined above. However, the EU copyright and trademark system needs to be improved.

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AI, Law and Human Responsibility

– By Gregor Noll –

ABSTRACT

What do algorithmic technologies do to the law, how do they alter lawyers’ work on legal issues, and how do they affect the allocation of legal responsibility? If it turns out that algorithmic technologies make it harder to identify a responsible subject, can we do something about it? These are the questions that I am trying to answer in this article. After mapping how AI affects the law and the legal profession, I inquire into the factors distinguishing legal normativity from such normativity as is expressed in algorithmic technologies. I conclude that law and the cybernetic basis of AI conflict with each other in a way beyond remedy. AI fundamentally undermines lawyers’ ability to attribute responsibility, as humans and algorithmic technology amalgamate in practice. I propose that the lawmaker imposes strict responsibility on certain forms of AI to avoid a loss of accountability during the period where traditional law and cybernetic normativity overlap.

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Authorship matters! Authorship in the EU with a focus on film

– By Martina Lattacher –

ABSTRACT

The term author, although at the center of copyright, is not defined in EU law. This lack of an EU wide definition leads to problems in the internal market and unequal treatment of authors due to differing laws on the topic of authorship in EU Member States. The author of this article argues that there should be a definition for authorship in EU law to achieve a well-functioning Single Market and to create fair conditions for creatives in the EU. Two definitions are proposed, one relating to authors in general, and another one more specific for the area of film.

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Reshaping the framework

– By Nicky Willemsen –

ABSTRACT

This article examines the trade mark protection for non-traditional marks (hereafter: NTMs), with a particular focus on three-dimensional trade marks. Non-traditional trade marks are increasingly being registered at the European Union Intellectual Property Office (hereafter: EUIPO), due to the amendment of Article 4 of the Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (hereafter: EUTMR). With this amendment, the criterion of the graphical representation has been abolished, resulting in the Article has become more aligned to practice.1 However, this amendment does not take away the fact that there are still specific requirements that should be met in order to register these relatively new forms of trade marks. Apart from issues relating to the distinctiveness of such signs, another obstacle is formed by the absolute grounds for refusal laid down in Article  (1)(e) EUTMR. The 2017 reform also included an amendment of this specific Article that, after the reform, prevents trade mark protection for signs which consist exclusively of:

(i) the shape, or another characteristic, which
results from the nature of the goods themselves;
(ii) the shape, or another characteristic, of goods
which is necessary to obtain a technical result;
(iii) the shape, or another characteristic, which
gives substantial value to the goods.2
Given these amendments, this article will also discuss the possible impact of the wording of the EUTMR on the eligibility of NTMs for trade mark registration. In order to establish a possible shift, a comparison will be made between the Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (hereafter: CTMR) and the EUTMR.

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