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See detailStandards for duty of care? Debating intermediary liability from a sectoral perspective
Ullrich, Carsten UL

in Journal of Intellectual Property, Information Technology and Electronic Commerce Law (2017), 8(2),

The EU’s current regulatory framework for the content liability of online intermediaries was created in 2000 with the Ecommerce Directive (ECD). Already in those days, during the run-up to the ECD, there ... [more ▼]

The EU’s current regulatory framework for the content liability of online intermediaries was created in 2000 with the Ecommerce Directive (ECD). Already in those days, during the run-up to the ECD, there was an intense debate regarding whether a light-touch approach or more stringent content liability regime for intermediaries would be the appropriate way forward. 20 years later the debate is essentially led from the same angle, but has predictably, increased in complexity as the internet makes massive strides in transforming the “offline” world. There are those who argue that a purely horizontal approach in regulating internet intermediaries, or online platforms, remains sufficient. Others think the time has come to reflect the disruptive entrances online platforms made in various sectors of society in more vertical changes affecting substantive law. The EU Commission sits on the fence it seems, however. In its communication on online platforms and the digital single market, the Commission announced last year that it would leave the current intermediary liability regime as it is for now “while implementing a sectoral, problem-driven approach to regulation". This paper will map out and critically evaluate some current sectoral (read vertical) regulatory developments, which may affect intermediary liability. It will look at recent, more top-down approaches proposed by the EU (e.g. in copyright), as well as self-regulatory efforts. This will be compared to less publicized developments, which have notably taken place in the area of product and financial regulation affecting ecommerce, such as for example efforts to combat the sale of fake medicines, unsafe products online, or anti-money laundering compliance. In these areas, it is argued that regulatory authorities have more proactively engaged online platforms, both on a legislative and practical level. A special focus in this context will be on the role of reasonable duties of care which intermediaries may be required to apply in order to detect and prevent infringements. Could these more “grassroots” developments and the convergence of online and offline worlds provide blueprints to encourage the development of a new content liability framework based on sectoral duties of care? [less ▲]

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See detailThe Implementation of the Audiovisual Media Services Directive by National Regulatory Authorities National Responses to Regulatory Challenges
Metzdorf, Jenny UL

in Journal of Intellectual Property, Information Technology and Electronic Commerce Law (2014), 5(2),

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See detailThe EU’s Trouble with Mashups From Disabling to Enabling a Digital Art Form
Jütte, Bernd Justin UL

in Journal of Intellectual Property, Information Technology and Electronic Commerce Law (2014), 5(3), 173-193

New tools for editing of digital images, music and films have opened up new possibilities to enable wider circles of society to engage in ’artistic’ activities of different qualities. User-generated ... [more ▼]

New tools for editing of digital images, music and films have opened up new possibilities to enable wider circles of society to engage in ’artistic’ activities of different qualities. User-generated content has produced a plethora of new forms of artistic expression. One type of user- generated content is the mashup. Mashups are compositions that combine existing works (often) protected by copyright and transform them into new original creations. The European legislative framework has not yet reacted to the copyright problems provoked by mashups. Neither under the US fair use doctrine, nor under the strict corset of limitations and exceptions in Art 5 (2)-(3) of the Copyright Directive (2001/29/EC) have mashups found room to develop in a safe legal environment. The contribution analyzes the current European legal framework and identifies its insufficiencies with regard to enabling a legal mashup culture. By comparison with the US fair use approach, in particular the parody defense, a recent CJEU judgment serves as a comparative example. Finally, an attempt is made to suggest solutions for the European legislator, based on the policy proposals of the EU Commission’s “Digital Agenda” and more recent policy documents (e.g. “On Content in the Digital Market”, “Licenses for Europe”). In this context, a distinction is made between non- commercial mashup artists and the emerging commercial mashup scene [less ▲]

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See detailFacebook’s Real Name Policy: Bye-Bye, Max Mustermann?
Schmitz, Sandra UL

in Journal of Intellectual Property, Information Technology and Electronic Commerce Law (2013), 4(3), 190-204

Facebook requires all members to use their real names and email addresses when joining the social network. Not only does the policy seem to be difficult to enforce (as the prevalence of accounts with ... [more ▼]

Facebook requires all members to use their real names and email addresses when joining the social network. Not only does the policy seem to be difficult to enforce (as the prevalence of accounts with people’s pets or fake names suggests), but it may also interfere with European (and, in particular, German) data protection laws. A German Data Protection Commissioner recently took action and ordered that Facebook permit pseudonymous accounts as its current anti-pseudonymous policy violates § 13 VI of the German Telemedia Act. This provision requires telemedia providers to allow for an anonymous or pseudonymous use of services insofar as this is reasonable and technically feasible. Irrespective of whether the pseudonymous use of Facebook is reasonable, the case can be narrowed down to one single question: Does German data protection law apply to Facebook? In that respect, this paper analyses the current Facebook dispute, in particular in relation to who controls the processing of personal data of Facebook users in Germany. It also briefly discusses whether a real name policy really presents a fix for anti-normative and anti-social behaviour on the Internet. [less ▲]

Detailed reference viewed: 204 (7 UL)