JIPLP: Eleonora Rosati

Showing posts with label Eleonora Rosati. Show all posts

Reminder: JIPLP Special Issue on GIs

A few months ago we announced a Call for Articles for our forthcoming special issue on Geographical Indications (GIs), which will be published in 2021.

We would like to remind interested authors to submit articles in the range of 3,500-6,000 words on a topic of their choice within this theme for consideration for publication in JIPLP. The issue will focus on several aspects of GIs with specific emphasis on recent developments in Europe and at the international level. Submissions addressing the topic from a comparative perspective are also welcome.

Relevant articles must be submitted through the online portal, be in accordance with JIPLP house style, and carry the indication that they are for consideration for the special issue of Geographical Indications.

The deadline for submissions is Monday, 30 November 2020. No late submissions will be considered for this special issue.

For authors interested in discussing informally the topic of a possible contribution, please email the Editors of this special issue, Eleonora Rosati and Irene Calboli, and/or Managing Editor Sarah Harris.

The special issue will be available in complimentary open access for a limited period of time after publication. The editors are also considering the possible organization of a conference/meeting with the authors of the special issue in 2021 after the special issue has been published.

January Editorial: What’s in one’s own image (right)?

Our first special image rights issue of 2020 is accompanied by an Editorial (free-to-read) which, moving from the ancient Greek myth of Narcissus, reflects on the current state of protection of image rights in light of the contributions hosted in the Journal:

Issue Section:

Editorial

In Western culture, one of the earliest myths dealing with what would subsequently become a literary topos is the one concerning Narcissus. Narcissus was known for both his great beauty and the disdain he showed to those who loved him. In the version of the myth as told by Ovid, Narcissus’s behaviour (particularly towards Echo) prompted Nemesis, the goddess of revenge, to punish him by luring him to a pool. There, Narcissus saw his own image reflected in the water and fell in love with it, without realizing that it was just his own reflection. Unable to fulfil his love, Narcissus eventually melted away from the fire of passion burning inside him.

If we now move away from the realm of myth to that of law, a similar feeling—of attraction and yet unfulfillment—seems to be present when we review the type of legal protection available to one’s own image. In particular, it seems that this feeling is experienced where no self-standing image rights protection is available. In countries of this kind, in fact, different tools can be employed to repress unauthorized third-party uses of one’s own likeness, image, distinctive features, etc. Yet, none of them – even when combined together – seems to allow achieving the same results (and with the same apparent simplicity) that, instead, image rights as (predominantly) an expression of one’s own personality and identity provide.

The contributions that we host in this first special image rights issue move from, indeed, the attractiveness of the idea that the law should protect against the misappropriation and misuse of one’s own image. Yet, they also share a sense of dissatisfaction with the status quo. This said – unlike Narcissus, who does not dare shaking the water out of fear that the reflection would disappear – the articles featured herein make concrete recommendations as to how the law could be improved, whether through more appropriate interpretations and applications thereof or its reform tout court. Any change, however, would need to be made, first, in a context in which several conflicting rights and interests are at issue, including third-party artistic and commercial freedom of expression (so that any intervention would need to be ‘surgical’ in both scope and objective). Second, as the articles on, e.g. deepfakes and revenge porn show, any such change would require considerations of different areas of the law and doctrines, as well as fast-paced technological developments. In a field, that of image rights, which puzzlingly remains substantially unharmonized at the international and EU levels, the challenges that, in particular, the latter pose show the need for effective enforcement tools and responses that, due to the very nature of such challenges, will also likely need to be increasingly transnational.

Our contributions allow us to travel from the United Kingdom to California, to consider EU, US and Russian laws, to appreciate the interplay between technological, public policy and legal issues, to review image rights in relation to street photography, sexual images and deepfakes. The common denominator of all these pieces is the awareness of the cross-border, interdisciplinary and potentially global reach of issues of facing legal protection of one’s own likeness.

Articles like those included in this issue contribute to what will hopefully become a deeper and more intense debate regarding the standards, scope and limits of protection of this category of rights. Narcissus eventually died while looking at his own image. The same should not happen to image/publicity rights, the protection of which appears instead in need of significant consideration by policy- and law-makers and courts alike, in order to revamp the role and functions thereof.

This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

February Editorial - Copyright in CJEU case law: what legacy?

Our February issue features an Editorial by our co-Editor, Eleonora Rosati, who reflects on the legacy of 20 years or so of case law of the Court of Justice of the European Union in the area of copyright.

The Editorial, which is freely accessible here, is reproduced in full below:

Compared to other areas of intervention at the EU level, copyright harmonization is relatively recent. Yet, two phenomena may be observed: on the one hand, policy and legislative initiatives have intensified; on the other hand, the many references to the Court of Justice of the European Union (CJEU) over the past twenty years or so have substantially shaped the EU copyright framework and, with it, also the copyright framework of individual EU Member States.

The role of the CJEU in shaping EU copyright has been indeed a central one. Certain factors have been decisive. First, despite the lack of formal specialization within the CJEU, as a matter of fact a subject matter specialization has occurred through the selection of relevant Judges-Rapporteur and Advocates General from rather a narrow pool. The other key factor has been the employment, by the CJEU, of a set of standards that have served to address copyright issues from a certain perspective, and – admittedly – to achieve certain results. In this sense, the Court’s action has been informed by an overarching internal market goal, through the extraction and application of the primary rationale of EU harmonization: removing those differences that amount to barriers to the free movement of copyright works and protected subject matter across the EU.

The result has been an arguably profound impact of CJEU case law on individual EU Member States, to the point that it seems possible to speak of an EU approach to copyright that has rendered the traditional dichotomy of continental Europe droit d’auteur/common law copyright less acute than was the case before the EC/EU harmonization process began. CJEU case law – rather than the transposition of EU copyright directives alone – has contributed to re-shaping key copyright concepts and approaches to copyright protection. The legacy of CJEU case law is also apparent in the context of the current EU copyright reform debate: the review of EU copyright rules requires consideration of a (formally rich but substantially thin) legislative framework and also – possibly above all – the CJEU interpretation of existing sets of rules.

It is difficult, if at all possible, to imagine how EU copyright law might look over the next couple of decades. On the one hand, the process of legislative harmonization would lose the input of EU Member States like the UK. This might have the effect of creating the conditions for a closer approximation between the continental European understanding of the role of copyright protection and the progression of EU harmonization. On the other hand, it is anticipated that the role of the court will remain central: this may be due to a number of factors, including increasingly complex legislation, progressive EU enlargements, and technological advancement and related legal challenges.

An issue that is often raised concerns how the court works, notably its alleged lack of specialization in copyright matters. According to a criticism often made, the CJEU should envisage specialist chambers and a system of dissenting judgments, on the model of common law countries. Is this something that is needed? Probably not, and this may be so essentially for two reasons. The first relates to the role of the court in preliminary rulings, which is providing guidance to national courts on how certain EU law provisions are to be interpreted: would dissenting judgments improve the clarity of CJEU rulings? The second reason relates to something that has been already mentioned, and is that a de facto specialization has occurred within the CJEU. In the particular context of preliminary rulings, the role of the court remains that of interpreting EU law provisions, also in light of the rationale for which a process of EU integration began in the first place. In this sense, EU copyright is not and should probably not become just something for copyright lawyers.

The themes of this contribution are explored at length in Copyright and the Court of Justice of the European Union (2019: OUP).

December Editorial - The year in EU copyright: is the right approach an emotional approach?

Our December issue is also an opportunity to reflect on what has happened in the course of 2018. One of our Editors, Eleonora Rosati, has penned the last Editorial of the year (which is FREE to read), reflecting on the unfolding of the EU copyright reform.

The full text of the Editorial is reproduced below. Enjoy the Holidays!

As expected, 2018 has been a crucial year for the progress of the EU copyright reform and what is rightly considered the most important draft piece of legislation in the group of initiatives released under the umbrella of the EU Commission’s Digital Single Market Strategy: the proposal for a directive on copyright in the Digital Single Market.

Following the adoption—by both the Council and the EU Parliament—of the respective versions of the directive to be used as a mandate in the context of trilogue negotiations, the final – closed-doors – phase that will eventually lead to the adoption of this new piece of copyright legislation has now begun. Although we do not yet know what the final text of the directive will be like, there are three elements that stand out in the process as we have seen it unfold so far.

First, as has become increasingly common in relation to copyright, the debate has been animated by emotional tones that, in turn, have resulted in the use of emotional terms (‘link tax’, ‘upload filters’). While these strategies have had the merit of bringing technical discussions about copyright protection outside the remit of specialist circles, thus favouring public awareness and engagement with issues that have the potential of impacting on internet users’ experience, they also make it difficult to appreciate the nuances underlying the actual text and implications as resulting from the adoption of new legislative provisions.

Second, the launch and evolution of EU copyright reform plans has suffered from ambiguities and contradictions, which have eventually led one to question what overall vision of copyright the EU wishes to pursue. The case of text and data mining (Article 3 of the draft directive) is telling. It is likely that the beneficiaries of this mandatory exception would be research organizations only. Yet, in its Impact Assessment accompanying the proposal for a directive, the EU Commission outlined how currently in Europe these subjects are not among those that are mostly engaged in text and data mining activities. What is the point, then, of an exception specifically aimed at those that are not really doing what the provision would allow for? The optimistic (naïve?) reading is that the EU wishes to stimulate the making of text and data mining in non-business settings too. The cynical reading is that the EU is introducing an exception that will not be used. The bottom-line in both scenarios, however (and this may be the actual take-home point), is that that text and data mining falls within the scope of copyright protection and – to be performed lawfully – rightholders’ authorization is needed.

Third, over time the proposed reform has either lost ambition or its harmonizing mission, ie to create a fully functioning Digital Single Market, has somewhat faded. An example of the former is the initial plan to tackle unjustified geo-blocking also in the copyright field: nothing of this sort is going to happen. An example of the latter is, again, text and data mining. From being a mandatory exception (that is, something that would carry out a substantial and actual homogenization of Member States’ laws), there might now also be an optional exception (Article 3a) that Member States would be free to introduce into their own laws, if they so wished. The question that arises is whether the response to inappropriate (in scope), yet mandatory, provisions (Article 3) is creating further fragmentation in the EU internal market by means of optional side-exceptions (Article 3a).

Overall, this new directive will likely come to be, while also reflecting the heavy legacy of emotional, contradictory and at times irrational tones that have animated the policy and legislative process. Once this has happened, the battleground will move to national implementations and, eventually (as has happened with the other pieces of EU legislation) litigation and referrals to the Court of Justice of the European Union.

Editorial - Brexit and UK copyright: the story of a loss among all other losses

Our current Editorial, passionately and wisely drafted by our co-editor Eleonora Rosati (University of Southampton, IPKat and e-LAWnora), discusses the potential impact of Brexit on the future of copyright law in the UK. Eleonora argues that EU harmonisation in the field has enriched and improved the pre-existing national legal framework, reconceptualising copyright beyond the dichotomy common law copyright/ French-style droit d'auteur and enabling a fruitful dialogue between UK courts and the CJEU.

You can read Eleonora's lucid analysis below and share your thoughts in our Comments section. The JIPLP blog also welcomes contributions that prospectively discuss the impact of Brexit on the future of IP in the UK and beyond: if you are interested in developing your ideas in a post and sharing them with our readers, please get in touch. The blog will also organise further initiatives to keep readers informed about Brexit-related developments - for more information, please stay tuned by visiting our blog frequently or subscribing to our newsletter!

Brexit and UK copyright: the story of a loss among all other losses

Eleonora Rosati*

On 23 June 2016 UK voters decided that their country would be better off outside the EU. To say the least, the historical outcome of the Brexit referendum will have a tremendously serious impact on the UK, the overall EU integration project and the remaining Member States alike.

From an IP perspective, it is still very unclear what will happen, and what effects forthcoming developments will have on both UK law and the professional (and necessarily personal) lives of IP owners, practitioners, academics, students, civil servants, judges and public affairs executives.

Serious uncertainty surrounds the destiny of EU-wide registered rights, including trade marks and designs, and imminent EU-wide novelties, such as the Unitary Patent System, in the UK. In the aftermath of the referendum outcome, the complexities of these rights have seemingly overshadowed what will happen to copyright, an IP right that—it has now become apparent—is territorial only on paper.

Over the past few years, the copyright laws of EU Member States have increasingly become more similar, less alien to each other, less perched in the summa divisio common law’s copyright/French-style droit d’auteur. On the one hand, EU legislature has adopted several directives that have had the laudable objective of facilitating the free movement of goods and services based on or incorporating copyright works. On the other hand, the Court of Justice of the European Union (CJEU)—prompted by questions of national judges—has become a primary player in the EU copyright scene, acting in certain cases as de facto policy- and law-maker.

If and when Brexit happens, what will be the legacy of EU harmonization in the area of copyright? The answer will depend on what route is eventually pursued.

If the UK leaves the EU but remains in the European Economic Area (probably the most optimistic outlook at the moment), then the relevant body of EU copyright legislation will continue to apply in this country. However, the same could not be true for CJEU case law, at least from a formal standpoint. Although the judgments rendered in the context of references for a preliminary ruling ex Article 267 of the Treaty on the Functioning of the European Union (ie the types of actions relevant in the area of copyright) would likely maintain a certain relevance for UK copyright, UK courts could lose their power to make themselves references to the CJEU. In fact Article 267(2) reserves this possibility to the courts or tribunals of Member States. The result would be odd: the UK would still apply EU legislation but its judges would no longer be able to query their correct interpretation (and application).

In any other scenario, the future relevance of EU copyright legislation and CJEU case law in the UK is extremely uncertain. Possibly bound by international copyright instruments only, the UK might decide to pursue routes that—so far—have appeared extremely unlikely to be followed at the EU level. For instance, it could decide to abandon a closed system of copyright exceptions and adopt an open norm instead, possibly modelled on US fair use.

In times of profound confusion, what appears clear—not just to an EU enthusiast like myself—is that EU action in the area of copyright has BENEFITTED and IMPROVED UK law.

First, it has created a harmonized space for EU Member States that, albeit imperfect, is much better—for rightholders and users alike—than what, in a much more fragmented fashion, was the case 20–25 years ago.

In addition, the harmonizing (possibly even undue in certain instances) efforts of the CJEU have brought increased uniformity and, in some cases, have compelled Member States to either rethink particular approaches or meet the challenges facing technological advancement and digitization of contents and their distribution channels. An example of the former is the impact of CJEU case law on the UK notion of originality and the (outdated, yet still formally in place) closed subject-matter categorization envisaged by the Copyright, Designs and Patents Act (CDPA). An example of the latter is the availability of injunctions against intermediaries under s97A CDPA (introduced to implement into UK law an EU directive): the jurisprudence of UK courts, influenced by parallel developments at the CJEU level, has developed solidly and thoughtfully and has been looked at (whether with admiration or concern, but in any case regarded as IMPORTANT case law) in other Member States.

Will UK copyright be better off without EU copyright and the CJEU? No: the improvements to UK copyright over the past few years are in many instances greatly indebted to parallel developments at the EU level. Among other things, losing the dialogue between thoughtful UK judges and the CJEU will be one of the many great losses for UK copyright.

*Editor of the Journal of Intellectual Property Law & Practice and Lecturer in Intellectual Property Law at the University of Southampton.

Email: eleonora@e-lawnora.com. Twitter: @eLAWnora.

© The Author(s) (2016). Published by Oxford University Press. All rights reserved.

About this weblog

The principal contents of this weblog are drawn from the Current Intelligence features which are published monthly in JIPLP.

Current Intelligence articles are designed to analyse recent key cases, legislation and topical matters. Normally they are of between 500 and 1,500 words (though in exceptional cases a greater word length may be agreed with the Editors).

The selected Current Intelligence articles are now posted on this weblog to enable readers to engage with them, posting comments if they so choose. All comments are moderated, which means that they will not appear immediately upon their being posted.

About the Journal

JIPLP is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.

The journal is specifically designed for IP lawyers, patent attorneys and trade mark attorneys both in private practice and working in industry. It also aims to be an essential source of reference for academics specialising in IP, members of the judiciary, officials in IP registries and regulatory bodies, and institutional libraries. Subject-matter covered is chosen for its practical relevance and international interest.

Instructions for authors here
Free sample issue here
Subscription details here

... and authors in search of an article

JIPLP is often approached by prospective authors who would like to write something, but who would appreciate guidance regarding subject-matter, style and so forth. Here are a few pointers:

* Ask yourself what is it that you'd like to read in the journal, since that is handy rule of thumb which probably reflects the interests of your colleagues and your competitors;

* IP law and practice is very much a 'here and now' activity for JIPLP subscribers. The history of a right may be inherently interesting, or even sometimes relevant to the resolution of a specific issue, but would you expect a reader to look for it in JIPLP?

* Recycled Masters' dissertations and university essays make poor articles and are often difficult to convert from a piece that is designed to display erudition and research ability into an article that addresses lawyers, businesses and decision-makers. It's usually easier to start afresh by working out who your readers are and what you want to tell them.

* Please comply with the authors' instructions and note the journal's preferred length for articles. Most authors like to publish long ones, but subscribers tend to prefer reading shorter ones.