Abstracts and materials

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ABSTRACTS 

Berlips Persson, Merit
Stockholm University

The company name as a sign in the course of trade

The proprietor of a Swedish company name (or other trade name) has by virtue of the company registration alone an exclusive right to the name as a sign in the course of trade [Swe. varukännetecken], i.e. under the same rules as a trade mark. However, the company name has another essential function than the trade mark and is designed somewhat differently. Company names are therefore in certain aspects not assessed in compliance with the trademark’s rules. This gives the company name a broader protection in relation to trade marks. One outcome of this is that the company name can be used to circumvent the stricter rules/assessments regarding trademarks. By comparing the historical emergence, legislation, functions and market reality of company names and trademarks the dissertation aims to answer the question if this protection of company names as a sign in the course of trade in relation to trade marks is foreseeable, legally secure and appropriate? And moreover if it is in accordance with the harmonised trademarks legislation? The dissertation also aims to suggest a more balanced legislation in this respect.

Berlips Persson

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Bibi, Alexander
LMU Munich

Extended Collective Licensing in the DSM Directive – An Opportunity to make Art. 17 DSM Directive work?

Extended Collective Licensing in the DSM Directive – An Opportunity to make Art. 17 DSM Directive work?: – Overview of Extended Collective Licences (ECL) – Analysis of the ECL system of Art. 12 DSM Directive and its specific requirements – Teological bond between Art. 12 and Art. 17 DSM Directive as regards a licensing scheme, at least for problematic cases under Art. 17 DSM Directive – Which are the problematic requirements in Art. 12 DSM Directive with regard to a possible licensing scheme under Art. 17 DSM Directive?

Bibi

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Floryan, Leonard
University of Copenhagen

Exploring the legal frameworks and implications of selected pull incentives for antibiotics
 
Antibiotic resistance is recognized as a global health problem. However, the antibiotic market is financially unattractive, and although bacteria are increasingly becoming resistant to many known antibiotics, developers are shying away from engaging in antibiotic research and development (R&D). The result is a constrained pipeline of new antibiotics. Several strategies for stimulating antibiotic innovation have been suggested. These are generally divided into push and pull mechanisms, with push mechanisms designed to reduce a developer’s cost of R&D and pull mechanisms designed to reward successful drug development. In my presentation, I will explore the legal frameworks, workings, and implications of selected pull mechanisms for stimulating antibiotic innovation. My focus will be on patent protection-based and regulatory exclusivity-based mechanisms versus monetary payout-based mechanisms such as market entry rewards. The aim of the exploration will be to answer which type of pull mechanism provides the best balance between the interest in stimulating innovation into new antibiotics, the interest in preventing antibiotic resistance, and the interest of society in having access to effective and affordable antibiotics.

Heikkilä, Jussi
University of Jyväskylä

Industry dynamics in the IPR service sector: Evidence from Finland

We describe how the IPR service sector has evolved in a European open economy, Finland, over the period 1990-2020. Finland provides a particularly interesting case as Finland became a member of the European Union in 1995 and is among the most innovative countries and among the top countries with respect to IPR protection. We focus on the following research question: How has 1) globalization, 2) European integration and 3) digitalization impacted the Finnish IPR service sector between 1990 and 2020? While previous studies have mainly focused on patents and patent attorneys/agents, this paper extends the analysis to other IPRs, namely trademarks, design rights and utility models. We use mixed methods to obtain a detailed and comprehensive understanding of the evolution of the Finnish IPR service sector over the period 1990-2020. The quantitative analysis relies on patent, utility model, design right and trademark register data of the Finnish patent office, EPO and EUIPO. The qualitative analysis comprises semi-structured interviews of the Finnish IPR service companies registered in official patent, trademark and design attorney registers. Our analysis provides new insights on the industry dynamics of IPR service companies including the evolution of the competitive environment and service innovations during a period characterized by globalization, European integration and digitalization.

 
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Huhta, Eetu
University of Eastern Finland

Intermediary Liability in the EU Digital Single Market

 

Social media platforms have in many ways changed modern societies and provided many benefits to the digital economy. However, the increasing amount of illegal content online has raised concerns over the extent to which these platforms should be held liable for user-generated content. The European Union has an agenda of creating a digital single market where digital content can flow seamlessly without borders. This agenda is promoted through the European Commission’s Digital Single Market Strategy, which has already resulted in new pieces of legislation, such as the General Data Protection Regulation (‘GDPR’) and Digital Single Market Copyright Directive (‘CDSM Directive’). The Commission’s message has been that online platforms need to take more responsibility for illegal content online.
From the perspective of freedom of expression and information, internet users’ right to privacy as well as from the online service providers freedom to conduct business, it is problematic if the online platforms and the internet infrastructure itself are required to monitor and pre-emptively block the content online. Article 17 in Digital Single Market Copyright Directive requires online platforms to conclude licensing agreements with rightsholders or make their best efforts to ensure the unavailability of copyright-infringing content. Because these online platforms are driven by businesses, it is in the interests of these businesses to avoid even the slightest risk of liability for damages. There is a risk that these platforms increasingly start to block access to online content, regardless of the nature of the content. The regulation of online service providers is developed further, and there is a significant possibility that the models adopted in copyright law will be further extended with relations to other types of content. This would fundamentally change the nature of the internet. In the existing EU legislation and the case law of the European Court of Justice, it has been made clear that online service providers do not have a general obligation to monitor the content posted by third parties on the internet. However, in light of the recent developments, it can be questioned whether the prohibition of general monitoring obligations still holds. The obligations and responsibility of online intermediaries seem to be further enhanced by the proposed Digital Services Act.
In this presentation, I will discuss the role of intermediary liability in the European Commission’s Digital Single Market strategy and take a look into the interplay between the new Copyright Directive and Digital Services Act. Also, the importance of balancing different interests between the various stakeholders will be addressed.
 
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Härkönen, Heidi
University of Turku

Intimate authorship: privacy considerations in copyright law
 
In today’s society, intimacy is recognised as an important value. ‘Intimacy’ means not only ownership to personal data, but also ownership & control over individual’s output that reflects ones personality, and general interface of private and public. The question is, how does out copyright system reflect intimacy? In general, civil law / author’s right countries aim to protect outputs that reflect the author’s personality. Moreover, copyright ‘stops at the doorstep of one’s home’. In general, it appears that civil law countries’ copyright regime rather well protects intimacy of the author, however, there are still some vulnerabilities in the system. For example, creativity that diverges from the idea of ‘creative genius’ (for example: Indigenous traditional cultural expressions) faces challenges when seeking for protection. In addition, some new forms of creativity, such as open source joint authorship works, seem to challenge authorship conventions that strongly tie copyright protection to the personhood of the author.
This paper investigates how ‘intimacy’ as a value is present in the copyright regime and explores potential gaps and vulnerabilities in the system. The hypothesis is that even though the ‘creative genius’ justification of civil law copyright tradition has been occasionally criticised as outdated, it rather well suits modern demands of intimacy and ownership to output that reflects one’s personality.

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Kianzad, Behrang
University of Copenhagen

Intellectual Property and Competition Law during COVID-19 Crisis

 

The COVID-19 crisis has elevated some decade-long debates on the interaction between intellectual property rights, competition law and access to affordable treatments and vaccines. As there are many calls for a waiver from TRIPS regarding vaccines and treatments related to COVID-19, these calls are in turn countered by others pointing to relevance and importance of IP protection both in the long and short run. Adding another layer to the analysis, competition law has a role to play in combatting excessive pricing and price gouging of essential items as per Article 102a TFEU. The presentation seeks to construct a multi-layered analysis, with a view to law and economics of both IP and Competition Law as well as regulatory approaches.
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Kleinvogel, Emma
LMU Munich

The scope of the exceptions to the Trade Secrets Directive
The topic deals with the exceptions to the Trade Secrets Directive and their scope. The exceptions are formulated very broadly and need to be made more specific, because the broad formulation entails considerable assessment risks, both to the detriment of the owner of trade secrets and to the detriment of the disclosers. How a concretisation can take place and which questions arise along the way is the subject of my doctoral research.

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Knapstad, Tone
University of Helsinki

Fighting the tech giants – news edition: Competition law’s unsuitability to achieve the objectives of the press publishers’ right

Online platforms that utilise short excerpts (snippets) of online news content for displaying search results have caused a conflict about remuneration between the platforms and press publishers. Publishers are experiencing a difficult transition from print to digital news with decline in traditional income, while becoming increasingly dependent on platforms that compile and select relevant search results (aggregators) to gain visits to the news webpages. On this background, the Directive on Copyright in the Digital Single introduced the press publishers’ right to contribute, among other, to fair remuneration. Failing to make Google pay for the use of snippets of online news under the new press publishers’ right, publishers in France, where it was first implemented, are attempting to enforce the right through competition law. This paper argues that such behaviour by online aggregators should not constitute an abuse of dominance according to Article 102 of the Treaty of the Functioning of the European Union and that the scope of EU competition law speaks against such an application. Furthermore, the paper explores alternative regulatory approaches, hereunder the Digital Markets Act and the recent Australian Mandatory Bargaining Code, and the implications such regulations have for the conflict and the role of competition law.

Knapstad

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Ogbodo, Juliet
University of Eastern Finland

Intellectual Property Provisions in the EU-CARIFORUM Economic Partnership Agreement and Lessons for West Africa
 

Negotiations for the Economic Partnership Agreement (EPA) between the EU and African Caribbean and Pacific (ACP) regional blocs have been ongoing for over a decade. These negotiations are at different phases in the seven regions but have faced significant challenges, hindering ratification in most regions. However, CARIFORUM is the first and only regional group to conclude, sign, ratify, and implement the EPA with the EU. Most significantly, CARIFORUM is the only region to negotiate and ratify a Comprehensive EPA, going beyond trade in goods to include other elements such as Innovation and Intellectual Property.
While this move has puzzled several researchers, this paper seeks to understand CARIFORUM’s rationale in opting for a comprehensive EPA with the EU, when the other six ACP regions, especially the West African region, has vehemently refused to negotiate any agreement beyond a goods-only agreement in the initial stage. However, they have committed to negotiating other elements of trade, which includes IP in a second phase. Furthermore, this paper analyses the IP provisions in the CARIFORM-EU EPA and examines the impact the agreement has had on the region on intellectual property rights protection.
This paper employs comparative methods, utilising legal texts, negotiation materials, secondary data and interviews conducted with senior CARIFORM trade negotiators. The outcome of this research will not only give a clear picture of the EU-CARIFORUM chapter on IP and its impact, but it will also draw lessons that the West African region and other ACP regions can utilise ahead of further negotiations with the EU on IP.

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Scheer, Mathias
LMU Munich

FRAND obligations of patent acquirers — antitrust implications for the transfer of SEPs
 
Owner of standard essential patents (SEPs) commit themselves to license the SEP under fair, reasonable and non-discriminatory (FRAND) terms in order to comply with the antitrust requirements for standard setting. The FRAND commitment is to ensure the accessibility of the standard and thus to prevent patent holdups in abuse of producers being locked in to the standard. These lock in effects will particularly occur when the standard has become established in the downstream market so that harming effects may occur an indefinite time after the standard has been adopted. Thus, it cannot be sufficient that the standard is only accessible in the moment when it is adopted (as the relevant time for the antitrust assessment regarding the standardization). It has to be ensured in the long term. This issue especially arises when a SEP has been transferred. It must not be possible to bypass the FRAND obligation simply by transferring the patent. My research that I want to present is focused on how acquirers of SEPs can be bound by the original FRAND commitment.

Scheer

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Sevastianova, Vera
Hanken School of Economics

Rethinking the Doctrine of Trademark Law in the Age of Artificial Intelligence and Automated Commerce

The proposed project for the Ph.D. program at Hanken School of Economics aims to analyze the future of trademark law in the age of artificial intelligence (AI). AI-led tools notably influence electronic commerce: for instance, such personal assistants as Amazon’s Alexa and Google Assistant gave birth to the whole new voice-commerce field. While the basic understanding of why society needs trademarks comes down to reducing costs of search for the desired product by human customers, in the AI-determined environment, search for goods and services might become automated, based on specific parameters, like quality, customer reviews, or price. With the decrease of human decision-making in the search process, some specialists already believe that trademarks might be unnecessary. How will it influence the intellectual property philosophy? How will different approaches to trademark law react to the described revolution in shopping? How will key concepts within trademark law be interpreted in the new reality? How enforcement procedures will work? These and related questions will be under scrutiny in this research, conducted from the law and technology perspective with the use of the doctrinal method; empirical data, both qualitative and quantitative, will also be utilized.

Sevastianova

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Stenvik, Kristina
University of Oslo

Establishing a European model for copyright infringement
 
The purpose of my PhD-project is to explore how and to what extent the infringement assessment is harmonised on a European level, and on that basis analyse if it is possible to develop and establish a European model for the infringement assessment. This requires an investigation of the requirements EU law entails for national law in this area, e.g. to set out the boundaries of national courts’ discretion in copyright infringement matters. Within these boundaries, I will analyse selected models that have been applied at national level, primarily in the Nordic countries, continental Europe and the UK, and ask whether and to what extent existing models are in harmony with the EU-directives, the CJEU’s case law and the purposes of EU copyright law.
 
 
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Thesleff, Alexander
University of Helsinki

Protection of non-human works – an overview of my doctoral research
 

In my presentation I will outline my doctoral research on the compatibility of Nordic/European copyright doctrines with new methods of seemingly authorless creation, namely works generated by AI-technologies, and potential needs and solutions for their protection in the future. As human authorship is (as of now) a necessary prerequisite of copyright protection, the big problem and consequently the primary research question is whether authorless works should enter the public domain upon completion, or if some novel forms of protection should be introduced to restrict unwanted freeriding. The research is based especially on the incentive based utilitarian theories of copyright.
The research methods utilized are two-fold. When discussing the applicability and flexibility of the current regime vis-a-vis AI-works, the research adopts a more descriptive dogmatic method through which the rationale and the limits of the copyright system are established. On the other hand, when examining the problem from a lex ferenda viewpoint, methods pertaining to normative jurisprudence and legal policy – primarily economic analysis of the law – are employed.
The preliminary hypotheses of the reasearch are that: 1) the originality requirement as the basis of copyright protection likely will (and should) not be adjusted or adapted to include non-human creative efforts as such, but the evaluation of the phase of the creative process in which the decisive human creative effort is to be carried out might face an incremental expansion. This is to say that for example the facilitation of the creative technology combined with e.g. the goal setting of the programming and the publication process or the curating of the machine-generated content will likely be emphasized as sources of originality in a work going forward; 2) If purely AI-generated works will be of use and utility in the future with absolutely no human intervention even in the selecting and publication of output, then following the logic of the incentive-based theories no exclusive rights should be needed and thus no protection should be afforded to these works, provided that the program code responsible for the autonomous creation of works can in itself be benefitted from economically to an effective degree; 3) Protection from unfair freeriding, i.e. blatant parasitic copying should however likely be hindered in some form – solutions might be found in the areas of unfair competition or unfair business practices legislation, although their applicability face difficulties of their own.
 

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Weiss, Raphael
LMU Munchen

Copyright protection versus marketability in the online transfer of digital goods – What remains of the principle of exhaustion after the “Tom Kabinet” judgment?

The ECJ’s rulings in the “Usedsoft” and “Tom Kabinet” cases lead to a divided picture regarding the resale of digital goods. While digitally acquired software may be resold, this possibility does not exist for traditional categories of works. According to the case law of the ECJ, the download of digital goods is not an act of distribution, but rather an act of communication to the public, which does not result in the application of the principle of exhaustion. The purchaser of an e-book is therefore not able to realize any residual value. The same applies to access to streaming platforms. As a rule, access to the content of the streaming provider is not transferable. The user’s legal position in the digital area is therefore significantly weaker than in the case of the purchase of physical goods. On the other hand, the market power of digital corporations is increasing. The European Commission has therefore adopted the digital markets act to address this problem at the antitrust level. The presentation will examine from the perspective of copyright law and antitrust law whether there is an appropriate balance between user and exploiter interests according to the current legal situation. Thereafter different possible solutions will be presented and put up for discussion as to how a possible imbalance can be solved.

Weiss