Thomas Margoni

The Harmonisation of EU Copyright Law: The Originality Standard

The first European Union Directive in the field of copyright was enacted nearly 25 years ago. Similarly to many other directives that followed, that Directive was “vertical” in scope, meaning that its “harmonising” effects were limited to the specific subject matter therein regulated (in this case, software). Other examples of “vertical harmonisation” are found in the field of photographs and databases as well as in many other European Union directives in the field of copyright, making this fragmented approach a typical trait of European Union Copyright law harmonisation. The reason for what could be labelled ‘piecemeal legislation’ can be linked to the limited power that the European Union had, until recently, in regulating copyright. As it can be easily verified from their preambles, all European Union Copyright Directives are mainly grounded in the smooth functioning of the internal market. It is the internal market—rather than copyright—that has driven the harmonisation of European Union copyright law to date. Nevertheless, if we look at the entire body of European Union copyright law today (the so called acquis communautaire) it certainly appears much more harmonised than what may be suggested by the above. The reason for this “unexpected” situation can most likely be found in the fundamental role that the Court of Justice of the European Union has played in interpreting and—some would argue—in creating European Union copyright law. Using the example of the originality standard, this paper offers an overview of the past and current state of European Union copyright, of the case law that has allowed the Court of Justice of the European Union to develop and affirm its own concepts and indicates what could and should be expected for the future of European Union copyright law.

Clarifying Privacy in the Clouds

Concomitant with the increased market appeal of cloud-based services, there is growing concern over issues of privacy within the architecture. In this paper, we analyze what is meant by the term privacy from a legal perspective, and how the meaning of cloud computing and their operation any be affected in at least one jurisdiction. We also look at some possible solutions to addressing privacy in clouds.

FLOSS for the Canadian Public Sector: Open Democracy

FLOSS generates both enthusiasm and concern. In this paper we focus on the Canadian public sector, how it could benefit from FLOSS solutions, emphasising the strong connection existing between public function and Free and Open Source models. At the same time we analyse some of the major legal concerns linked with FLOSS, to distinguish real issues from Fear, Uncertainty and Doubt (FUD).

Open Access, Open Science, Open Society

Open Access’ main goal is not the subversion of publishers’ role as driving actors in an oligopolistic market characterised by reduced competition and higher prices. OA’s main function is to be found somewhere else, namely in the ability to subvert the power to control science’s governance and its future directions (Open Science), a power that is more often found within the academic institutions rather than outside. By decentralising and opening-up not just the way in which scholarship is published but also the way in which it is assessed, OA removes the barriers that helped turn science into an intellectual oligopoly even before an economic one. The goal of this paper is to demonstrate that Open Access is a key enabler of Open Science, which in turn will lead to a more Open Society. Furthermore, the paper argues that while legislative interventions play an important role in the top-down regulation of Open Access, legislators currently lack an informed and systematic vision on the role of Open Access in science and society. In this historical phase, other complementary forms of intervention (bottom-up) appear much more “informed” and effective. This paper, which intends to set the stage for future research, identifies a few pieces of the puzzle: the relationship between formal and informal norms in the field of Open Science and how these impact on intellectual property rights, the protection of personal data, the assessment of science and the technology employed for the communication of science.

CC-PlusDesign.eu: or How to Apply Creative Commons Licences to 3D Printed Products in the Light of the Most Recent Developments of the European Court of Justice Case Law

The paper starts with an attempt to clarify and explain the interface between copyright and design rights protection in relation to the originality standard under EU law. It looks in particular at the partial/perfect cumulation of protections as established in the relevant legislation (the Design Directive and the Community Design Regulation) and interpreted by the ECJ. Moreover, the paper tries to establish the real implications of the Flos v Semeraro decision in the area of copyright originality and its harmonisation. The paper then moves to an analysis of Creative Commons licences, both version 3.0 and the newly released version 4.0. It tries to determine under which conditions a blueprint or digital file released under CC licences can be 3D printed in a physical object, that is to say it tries to establish the legal relationship between the digital file and its manufacturing in order to determine how far copyright protection - and contract law - can reach. In the last part, the paper tries to provide a set of normative elements based on copyright, design and contract law that will constitute the legal framework for an Open Design model.

The Roles of Material Transfer Agreements in Genetics Databases and Bio-Banks

In this paper, we will analyse the role (or better the roles) that a specific document, the Material Transfer Agreement (MTA), has accrued in the exchange of bio-materials between research institutions. We will see how fundamental such documents have become in the most recent years, and that an uncontrolled proliferation of them could bring about a highly inefficient market situation. We will further see how standardisation will partially fix the problems connected to the exchange of bio-materials and bio-samples. However, whilst standardisation possesses undeniable advantages, it has to cope with a minimum level of flexibility, otherwise it will not be able to catch the huge varieties of situations involved. We will finally observe, how new digital and web-based collaborative efforts can contribute to achieve such trade-off between standardisation and flexibility.

Interpreting Network Discrimination in the CRTC and FCC (net neutrality)

The issue of what discriminatory use of a network means has arisen in two recent decisions of the United States and Canadian federal communications commissions, the FCC and the CRTC respectively. The topic is a contemporary and hotly debated one, as when a course is fixed it will strongly influence the future of the Internet. It can be stated as the dichotomy of open and competitive or closed and oligopolistic. A study and comparison of the two different approaches is vital to clarify the debate, and hopefully guide Canadian policy in a direction that will benefit the whole community.