lecture 9 Flashcards
Very Large Online Platforms
Risk assessment (Art. 34)
◦ „diligently identify, analyse and assess any systemic risks in the Union stemming from the design or functioning of their service and its related
systems”
* Mitigation of risks (Art. 35)
◦ „reasonable, proportionate and effective mitigation measures, tailored to the
specific systemic risks identified pursuant to Article 34, with particular
consideration to the impacts of such measures on fundamental rights”
* Crisis Response Mechanism (Art. 36)
◦ „Where a crisis occurs, the Commission, acting upon a recommendation of the
Board may adopt a decision, requiring one or more providers of very large
online platforms or of very large online search engines to take one or more of
the following actions …”
VLOP
- Independent Audit (Art. 37)
- NO personalised timeline/recommender system (Art. 38)
◦ providers of very large online platforms and of very large online search engines that use
recommender systems shall provide at least one option for each of their recommender
systems which is not based on profiling - Online Advertising Transparency (Art. 39)
- Data Access and Scrutiny (Art. 40)
◦ „provide the Digital Services Coordinator of establishment or the Commission, at their
reasoned request and within a reasonable period specified in that request, access to data that
are necessary to monitor and assess compliance with this Regulation” - Compliance (officer), Art. 41
- Transparency Reporting Obligations (Art. 42)
◦ „at least every six months” - Supervisory Fee (Art. 43)
DMA
Regulation (EU) 2022/1925 of the European Parliament and of the Council of
14 September 2022 on contestable and fair markets in the digital sector and
amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets
Act) (Text with EEA relevance)
Why? DMA
- increasingly important role of platforms
- Recital 2:
◦ “At the same time, among those digital services, core platform services feature a
number of characteristics that can be exploited by the undertakings providing
them. An example of such characteristics of core platform services is extreme
scale economies, which often result from nearly zero marginal costs to add
business users or end users. Other such characteristics of core platform services
are very strong network effects, an ability to connect many business users with
many end users through the multisidedness of these services, a significant
degree of dependence of both business users and end users, lock-in effects, a
lack of multi-homing for the same purpose by end users, vertical integration,
and data driven-advantages.”
Article 3 - DMA
1 An undertaking shall be designated as a gatekeeper if:
a) significant impact on the internal market;
b) core platform service which is an important gateway for business users to reach end users; and
c) entrenched and durable position, in its operations, or it is foreseeable that it will enjoy such a position in the near future.
2. An undertaking shall be presumed to satisfy the respective requirements in paragraph 1:
a. as regards paragraph 1, point (a), where it achieves an annual Union turnover equal to or above EUR 7,5 billion in each of the last
three financial years, or where its average market capitalisation or its equivalent fair market value amounted to at least EUR 75 billion in the last financial year, and it provides the same core platform service in at least three Member States;
b. as regards paragraph 1, point (b), where it provides a core platform service that in the last financial year has at least 45 million
monthly active end users established or located in the Union and at least 10 000 yearly active business users established in the
Union, identified and calculated in accordance with the methodology and indicators set out in the Annex;
c. as regards paragraph 1, point (c), where the thresholds in point (b) of this paragraph were met in each of the last three financial
years.
DMA - Obligations
Art. 5
The gatekeeper shall not do any of the following:
process, for the purpose of providing online advertising services, personal data of end
users using services of third parties that make use of core platform services of the
gatekeeper;
combine personal data from the relevant core platform service with personal data from any further core platform services or from any other services provided by the gatekeeper
or with personal data from third-party services;
cross-use personal data from the relevant core platform service in other services
provided separately by the gatekeeper, including other core platform services, and vice
versa; and
sign in end users to other services of the gatekeeper in order to combine personal data,
unless the end user has been presented with the specific choice and has given consent
within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679.
Obligation of Interoperability/Compatibility - DMA
(Art. 7)
* Signal – WhatsApp – Threema etc.
* Facebook – TikTok – Mastodon (?)
* All kinds of exceptions, suspensions etc. (Art. 8, 9)
Fines
In the non-compliance decision, the Commission may impose on a
gatekeeper fines not exceeding 10 % of its total worldwide turnover in the
preceding financial year where it finds that the gatekeeper, intentionally or
negligently, fails to comply with: …”
20 % in the case of repeated infringements
IP law
1) copyright
2) patent
3) trademarks
4) trade secrets
Comparison patent law V copyright
- Patent Law
◦ Protects - the Inventor
- Technical Solutions
- Ideas
◦ Requires - Registration
- Fee
- Transparency
◦ Gives 20 years of Protection - Copyright
◦ Protects - the Artist
- Creative Works
- Expressions
◦ Requires - No Registration
- No Fee
- No Transparency
◦ Gives > 70 years of Protection
Copyright: International Starting Point – Berne
Convention (1886!)
Content
* Equal Treatment
* Copyright protection for at least 50 years after the author’s death
* List of exclusive rights (subject to limitations)
◦ Translation
◦ Adaption
◦ Performance
◦ Reciting
◦ Communication to the public
◦ Broadcasting
◦ Reproduction
* Fair use exemptions possible
Additional Basis: WIPO Copyright Treaty
- 1996
- Protection of Computer Programs as literary works (art. 4)
- Protection of Databases (art. 5)
- Prohibition of circumvention of technological measures (art. 11)
Berne Convention - Art 1 and 2
Article 1
The countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.
Article 2 sec. 1
The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books,
pamphlets and other writings; lectures, addresses, sermons and other works of the same nature;
dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated
works expressed by a process analogous to cinematography; works of drawing, painting,
architecture, sculpture, engraving and lithography; photographic works to which are assimilated
works expressed by a process analogous to photography; works of applied art; illustrations, maps,
plans, sketches and three-dimensional works relative to geography, topography, architecture or science
Not relevant for copyright
©
* Effort
* Diligence
* Size
* Purpose
* Permissibility
* Finish
* Publication
* Single or Collective Authorship
But
The idea per se remains unprotected
Exploitation
Section 14. (1) The author has the exclusive right, subject to the limitations
stipulated by law, to exploit the work in the ways reserved for him by the
following provisions (exploitation rights).
Moral Rights
Art. 19 et seq
Current acquis (extract)
- Directives on
◦ Software 2009/24/EC
◦ Databases 96/9/EC
◦ Information Society 2001/29/EC
◦ Enforcement 2004/48/EC
◦ Audiviosual media services (TV) 2010/13/EU
◦ Orphan works 2012/28/EU
◦ Collective management of copyright 2014/26/EU
◦ Copyright in the Digital Single Market 2019/790/EU
◦ … - However, still no common, fully harmonised system of copyright protection
Databases (96/9/EC)
Sui generis right
Art. 7/1: Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment
in either the obtaining, verification or presentation of the contents to prevent extraction
and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.
Art. 10
1. The right provided for in Article 7 shall run from the date of completion of the making of the database. It shall expire fifteen years from the first of January of the year following
the date of completion. […]
3. Any substantial change, […] which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection.
Status Quo
Directive 2001/29/EC on the harmonisation of certain aspects of copyright
and related rights in the information society
◦ Establishes an exlusive right of communication to the public of works
and right of making available to the public other subject-matter (Art. 3)
◦ Establishes an exclusive distribution right (Art. 4)
◦ Provides a complete list of legal exceptions and limitations to exclusive
rights (Art. 5)
◦ Protects technological measures from circumvention (Art. 6, 7)
Exception and limitations (art. 5)
- One obligatory
Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral
and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2. - Many voluntary
Member States may provide for exceptions or limitations to the reproduction right provided for in Article
2 in the following cases … - Subject to three-steps-test (art. 5 par 5)
The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and
do not unreasonably prejudice the legitimate interests of the rightholder.
Possible limitations and exceptions
a) in respect of reproductions on paper or any similar medium, […],
provided that the rightholders receive fair compensation
◦ collecting societies
b) in respect of reproductions on any medium made by a natural person for
private use and for ends that are neither directly nor indirectly commercial,
on condition that the rightholders receive fair compensation which takes
account of the application or non-application of technological measures
referred to in Article 6 to the work or subjectmatter concerned
c) in respect of specific acts of reproduction made by publicly accessible
libraries, educational establishments or museums, or by archives, which are
not for direct or indirect economic or commercial advantage;
Further possible exemptions
- Teaching
- Benefits for people with disabilities
- quotations for purposes such as criticism or review
- use during religious celebrations or official celebrations organised by a public
authority - use for the purposes of public security or to ensure the proper performance or
reporting of administrative, parliamentary or judicial proceedings - […]
- no general fair use exemption in Europe
Directive 2019/790
- Art. 1 par 1: This Directive lays down rules which aim to harmonise further
Union law applicable to copyright and related rights in the framework of
the internal market, taking into account, in particular, digital and crossborder uses of protected content.
◦ Exception for Text and Data Mining
◦ Ancillary Copyright for Press Editors
◦ Use of protected content by online content-sharing service providers
(Art. 17)
Art. 4 (General TDM exception
Exception or limitation for text and data mining
1. Member States shall provide for an exception or limitation to the rights provided for
in Article 5(a) and Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC,
Article 4(1)(a) and (b) of Directive 2009/24/EC and Article 15(1) of this Directive for
reproductions and extractions of lawfully accessible works and other subject matter for
the purposes of text and data mining.
2. Reproductions and extractions made pursuant to paragraph 1 may be retained for as
long as is necessary for the purposes of text and data mining.
3. The exception or limitation provided for in paragraph 1 shall apply on condition that the use of works and other subject matter referred to in that paragraph has not been
expressly reserved by their rightholders in an appropriate manner, such as machine- readable means in the case of content made publicly available online.
4. This Article shall not affect the application of Article 3 of this Directive.
Strong Exception for TDM (art. 3)
Text and data mining for the purposes of scientific research
1. Member States shall provide for an exception to the rights provided for in Article 5(a) and Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC, and Article 15(1) of this Directive
for reproductions and extractions made by research organisations and cultural heritage institutions in order to carry out, for the purposes of scientific research, text and data mining of
works or other subject matter to which they have lawful access.
2. Copies of works or other subject matter made in compliance with paragraph 1 shall be stored
with an appropriate level of security and may be retained for the purposes of scientific research,
including for the verification of research results.
3. Rightholders shall be allowed to apply measures to ensure the security and integrity of the networks and databases where the works or other subject matter are hosted. Such measures shall
not go beyond what is necessary to achieve that objective.
4. Member States shall encourage rightholders, research organisations and cultural heritage institutions to define commonly agreed best practices concerning the application of the
obligation and of the measures referred to in paragraphs 2 and 3 respectively
TikTok - copyright inrfringment, removal of content and EU copyright directive
Copyright Infringement:
We do not allow any content that infringes copyright. The use of copyrighted content of others without proper authorization or legally valid reason may lead to a violation of TikTok’s policies.
At the same time, not all unauthorized uses of copyrighted content constitute an infringement. In many countries, exceptions to copyright infringement allow the use of copyrighted works under
certain circumstances without authorization. These include the fair use doctrine in the United States and permitted acts of fair dealing in the European Union (and other equivalent exceptions
under applicable local laws in other countries).
Removal of Content; Suspension or Termination of Account:
Any user content that infringes an other person’s copyright may be removed. The account may be suspended or terminated for multiple copyright violations in connection with the use of the TikTok site or app, or other violations of the Terms of Service and Community Guidelines. We reserve the right to refuse any account holder whose account was used for improper activities
from opening a new account on TikTok’s site or app, or otherwise hosted by TikTok.
EU Copyright Directive
Pursuant to Article 17 of the Copyright Directive (EU 2019/790), if you want to make an
enquiry about granting an authorisation to TikTok to make your copyright-protected works available on TikTok, please use this form. We will review your request and be in touch.
If you want to request that your music or audiovisual works are made unavailable in the
EU, we need you to file this form. So that TikTok can consider your request, you will have to provide us with relevant and necessary information about you and your
copyright works. Upon receiving this information and validating your request, TikTok
will do its best to ensure that your copyright work is made unavailable on TikTok in the
EU.
Please note that in accordance with its legal obligations TikTok provides to users and rightholders a copyright infringement dispute resolution mechanism, however rightholders remain free to assert their rights in court.
