Thomas Riis

Study on Legislative Measures Related to Online IPR Infringements: A Project Commissioned by the European Union Intellectual Property Office

Intellectual property right (IPR) infringement has taken and increasingly takes place in the online environment, in particular on the internet, which has raised concerns on many different levels, and has led to a number of recent European initiatives. A number of legislative measures have been adopted at both international and European levels whose purposes are to strengthen and harmonise the protection of IPR. These measures include remedies, which aim to enable rights holders and law enforcement authorities, such as prosecutors, to enforce IPR in an effective manner. However, the provisions in the abovementioned legislation are, for the most part, not drafted in ways that specifically address how to prevent or combat online IPR infringement, but are -merely in the form of minimum requirements, which leave room for individual Member States to adopt and apply specific national measures.The main purpose of this study commissioned by the EUIPO is, therefore, to establish whether and to what extent a number of specific legislative measures, which can be applied to prevent or combat IPR infringement in the online environment, are available in the Member States. The legislative measures that the study will focus on are measures that can be characterised as providing ‘practical solutions to practical problems’, such as the option to require that an online service provider discloses the identity of a customer who is suspected of infringing the IPR rights of a third party and the option to apply the European Investigation Order (EIO) to crimes involving IPR. (Less)

Collective Agreements for the Clearance of Copyrights – The Case of Collective Management and Extended Collective Licenses

This contribution analyses and discusses the use of collective management organizations (CMOs) in copyright. More concretely, it examines the use and effects of extended collective licenses (ECL). This model of rights management has been developed in the Nordic countries and has for some time been hailed as a promising tool to solve some of copyright’s problems relating to mass uses of works. It is pointed out how ECL builds on users generated rights managements structures (CMOs) but owes its specific effectiveness to a legislator’s willingness to provide a third-party effect of the collective agreements entered into by representative CMOs. In the final part some of the challenges to ECLs arising from internationalisation and individualisation are identified and discussed. The article is part of a research project on “User Generated Law” and uses the methodologies developed as part of this.

User generated law: re-constructing intellectual property law in a knowledge society

The exact elements of what constitutes a ‘knowledge society’ are still disputed. Yet the underlying notion that modern society and not least the modern economy are essentially based on the production and dissemination of knowledge is not contested. The most widely shared understanding deems that a knowledge society is characterized by a high absorptive capacity; by the possession of structures and cultures that facilitate dissemination and sharing of knowledge; and by the inclusion of learning communities which emphasize innovation. A knowledge society’s main tool is information exchange via information and communication technologies. Information is a knowledge-generating tool; it is not knowledge itself. Knowledge relates to the practical use of information and involves a human experience.1 Our contemporary knowledge society faces the crucial challenges of establishing structures and arrangements that support the creation of legitimate and productive knowledge and ensuring access to knowledge. Legal infrastructure is essential in shaping such structures and arrangements. Technological and economic development have been the major forces in creating a knowledge society (which by nature is a dynamic society) whereas the legal infrastructure which regulates behaviour in this knowledge society has not developed correspondingly. Traditionally, law has been construed as being authoritatively determined by national legislative directives. In cases of uncertainty concerning the contents of these directives, national Supreme Courts have been envisaged as the source of legal certainty. This construction is ill-suited to meeting the needs of a knowledge society. In a knowledge society, law