Maria Lillà Montagnani

The Search for EU Boundaries: IPR Exercise and Enforcement as ‘Misuse’

Intellectual Property Law examines emerging intellectual property (IP) issues through the bifocal lens of both economic analysis and individual or social justice theories. This study considers restraints on IP rights both internal and external to IP law and explores rights disequilibria from the perspective of both the rationale of IP law and the interface with competition law. The expert contributors discuss the phenomenon in various contexts of patent, trade secret; and copyright, each a tool to incentivize the growth of knowledge beyond innovation and creativity.

The making of an ‘orphan’: cultural heritage digitization in the EU

As the definition of accessibility of cultural heritage changes under the impact of new technologies, public and private actors seek new ways to enhance digital access. The digitisation of 20th Century cultural heritage, however, is severely restricted by the potential subsistence of copyright and related rights. Different solutions have been considered to deal with this problem and, in particular: the adoption of a specific exception to copyright for libraries and other institutions with similar purposes (as in the United Kingdom and Germany); the use of the mechanism of extended collective licensing (as in Nordic countries); the creation of collecting societies responsible for the licensing of orphan works; the introduction of a public body in charge of licensing in a system of compulsory licenses (as in Canada); the limitation on remedy rule (as in the United States); or, finally, the adoption of national laws that provide for the automatic recognition and accessibility of orphan works as indicated in the other Member States. The EU’s own response has decidedly bet on the introduction of a copyright exception, through the Orphan Works Directive (2012/28/EU, hereinafter the “Directive”), which is thought of as an instrument to allow libraries, museums and other cultural institutions to digitise their collections of 19th and 20th century works. The Directive could potentially allow to lawfully digitise and make available a large number of works also with uncertain copyright status. Pursuant to the Directive, a work can be considered an orphan if, after a diligent search, its legitimate right-holders cannot be identified or located. Then, the EU pursued the scope to facilitate the digitisation and, consequently, the dissemination of works qualified as orphans, after a consultation of a large number of sources. Despite the emphasis which has surrounded its adoption, preliminary evidence shows that cultural institutions do not consider the scheme introduced by the Directive as scalable; in other words, they do not plan to use it as basis for mass digitisation projects. On the one side, the diligent search requirement is considered too onerous; on the other side, little attention is devoted to the underlying business models that would encourage digitisation. The involvement of private actors appears indeed limited to non-for-profit interventions, which explicitly rules out the main and principal digitiser on the global scale – the Google Books project. In this paper, we analyse the impact of the permitted uses on the digitization process of cultural heritage that can be carried out by those cultural institution benefitting from the exception. We will focus on the activity of making available (section 2) and reproduction for the purposes of digitization, making available, indexing, cataloguing, preservation and restoration (section 3). The division at hand is useful because the orphan work issue asks for different treatment depending on the type of use that would be made of the concerned works. On this background, we move to analyse the interaction between private and public sector in the field. In particular, we firstly analyse the ways into which the current framework envisages the funding of digitization processes and its limits (section 4). Within this context we assess the impact of public-private partnerships (section 5) to conclude by highlighting the weaknesses of the current EU framework for orphan works and its difficulties in achieving the goal of contributing to the creation of a European digital cultural heritage (section 6).

Online Distribution of Digital Goods: Empirical Evidence from Bottom-Up Cluster Analysis

This paper presents the preliminary results of a wide empirical study on online distribution of digital media content. Specifically, the study analyses the legal regime of a sample of websites, focusing on information such as the licensing conditions imposed on the content, the adoption of technological measures and the policy on collection of personal data. Using a specific ‘bottom-up’ clusterization technique, the data collected reveal unexpected characteristics of the current landscape for online distribution. While it is commonly assumed that content providers tend to be positioned on a continuum spanning from the ‘proprietary’ on-payment model to the free ‘open’ model of distribution, the cluster analysis shows that the landscape is much more fragmented and varied. The paper concludes that websites, regardless of the content they distribute, tend to cluster in four main models of online distribution.

Intellectual Property Law

Intellectual Property Law examines emerging intellectual property (IP) issues through the bifocal lens of both economic analysis and individual or social justice theories. This study considers restraints on IP rights both internal and external to IP law and explores rights disequilibria from the perspective of both the rationale of IP law and the interface with competition law. The expert contributors discuss the phenomenon in various contexts of patent, trade secret; and copyright, each a tool to incentivize the growth of knowledge beyond innovation and creativity.

Intellectual Property Law: Economic and Social Justice Perspectives: Introduction

592 Toward the end of Kapitalismus, the author briefly discusses the other-directed orientation of the entrepreneur with specific reference to Germany: “We need to produce things that no one else can produce and that are so good and desired that the whole world wants them. That we can do so has been demonstrated by our companies for decades” (174–75, my translation). This rings true, as Germany is, we know, economically more exposed to exports than the United States, and it is increasingly focused on the developing markets.