OTHER THEMED SESSIONS

Organizers: Irene Calboli, Texas A&M University School of Law, United States; Dev Gangjee, Faculty of Law, University of Oxford, United Kingdom; Martin Senftleben, Institute for Information Law (IViR), University of Amsterdam, Netherlands; Vera Sevastianova, Hanken School of Economics, Finland

Signs that identify and distinguish products often become important reference points in the societal discourse. Today, consumers are increasingly conscious about whether the branded items they buy are produced with respect to environment, human rights, and laws in general. In short, people have become more concerned with sustainability, i.e., “meeting the needs of the present without compromising the ability of future generations to meet their own needs”, according to the UN.

Brands could embody sustainable values that a manufacturing or service company supports. Therefore, brands could promote sustainability by associations with higher environmental, social, and economic standards. In our globalized and interconnected world, it is more difficult to hide child and forced labour that is involved into the supply chain, and the use of plastic bags is obvious – facts of these phenomena may cause a withdrawal of customers from a certain brand. This makes many brands stick to and improve their principles, including through regulations of collective or certification trade marks or rules of geographical indications.

Despite efforts of businesses to transform the names they use into the sustainability symbols, brands are still viewed by the public as instruments of big corporations and private interests, with examples of how green branding could easily become green washing if sustainability is not a true business priority. Hence, this panel’s proposers believe that there is work to be done to turn the brand-related area of IP law more oriented towards building a better world for the generations to come. With that in mind, this panel will addressed a series of presentations focusing on legal variations of brands and their role in building and maintaining sustainability, including through transparent and accountable communications with consumers and public at large.

Panel Presentations and Presenters’ Details:

– Dev Gangjee Professor and Director, Oxford Intellectual Property Research Centre, Faculty of Law, Oxford University

The Permissibility of ‘Preloved’? Trade Mark Law in an Era of Recycling and Upcycling

During the pandemic DIY or upcycled facemasks ran into the unexpected obstacle of trade mark law. Pre-worn clothing found a new lease of life in the form of branded facemasks sold commercially. However these unauthorised adaptations were under scrutiny as a possible form of trade mark infringement. Preventing needless waste generation is a global priority. So to what extent should brand owners be given the authority to decide when recycled or upcycled products are permissible? This paper explores the extent to which a range of trade mark doctrines in EU trade mark law can impede the sustainable reuse of branded goods and how we might need to rethink their application. These include the exhaustion of rights upon first sale, what counts as trade mark use, what ought to be recognised as harm to trade mark functions and the new referential use defence.

– Irene Calboli, Professor of Law, Texas A&M University School of Law, 2022 Hanken-Fulbright Distinguished Chair in Business and Economics, Hanken School of Economics.

The Potential Role of Certification Marks and Geographical Indications in Promoting Transparency and Sustainable Development

Prof. Calboli will address the topic of certifications, including certification marks and geographical indications, and their ability to increase transparency along the supply chain and, in turn, promote sustainable development. As a part of her presentation, Prof. Calboli will discuss the challenges of developing and consistently applying controlling certification protocols as well as the tendency of some actors to overemphasize “green,” “fair,” and “sustainable” standards for marketing purposes. Prof. Calboli is currently doing research in Finland which is one of few countries participating in the Sustainable Brand Index project, and she will support her research by insights from this Nordic state in addition to her extensive work regarding certification marks and geographical indications in the EU, North America, and developing countries in Asia.

– Martin Senftleben, Professor of Intellectual Property Law and Director, Institute for Information Law (IViR), University of Amsterdam

Brand-Based Communication and Sustainable Consumption Patterns: The Underexplored Potential of AI-driven Behavioural Advertising

Computational advertising lies at the core of a paradigm shift in brand-based communication. While, in the past, marketers designed advertising messages in accordance with a particular brand identity, AI systems nowadays use behavioural consumer data, such as data reflecting prior online searches and purchases, or social media “likes”, to generate targeted, tailor-made marketing messages on the basis of algorithmic content selection processes. Not surprisingly, computational advertising has triggered a debate on transparency obligations. Privacy concerns and the aim to prevent feelings of vulnerability and intrusiveness have led to new EU legislation seeking to empower consumers. The new communication and information tools offered by targeted behavioural advertising, however, can also be employed to draw consumers’ attention to sustainable products and services. Focusing on this underexplored potential of the new technology, the presentation will explore possibilities for implementing policy objectives, such as more sustainable consumption patterns, into computational advertising systems.

– Vera Sevastianova, Doctoral Candidate, Hanken School of Economics

Trade Marks in the Age of Artificial Intelligence: The Need for Sustainability in the Consumer Decision-Making Framework

Ms. Sevastianova will discuss how artificial intelligence (AI) changes consumer behaviour and its possible impact on trade mark law and, in turn, sustainable goals. Trade marks are signs that serve as orienteers in the world of products, but in some instances AI might shift the emphasis from trade marks to products’ parameters, potentially even generating perfect matches to consumer preferences with a reduction of search costs. AI could also suggest alternative choices that consumers might have never discovered, based on the data that AI collected. Yet, while AI is supposed to increase transparency in the marketplace, it can also be used to manipulate consumers’ behaviours and affect purchasing decisions. In this process, notions of consumer freedom of choice and autonomy, being the two sides of the same coin, appear to be of importance. Ms. Sevastianova will address these issues and consider how AI could potentially serve to promote sustainable goals, yet additional regulation may be needed for AI to develop business-to-consumers information flows that effectively promote these goals.

Organizers: Martin A. Bader, Technische Hochschule Ingolstadt (THI), Germany; Alfred Radauer, IMC Fachhochschule Krems, Austria

Currently there is a great debate running in academia as well as in industry practice how, whether and possibly why open data approaches would foster economic wealth, compared to traditional approprietary approaches that keep intellectual property, trade secret and economic valuable data rather proprietary. In particular, the emerging concept of the “data economy” has led to a recognition of an increased need to share data between different economic entities in collaborative open innovation set-ups. This in turn raises question on how to best protect data while at the same type foster data sharing.
The track could discuss submissions that deal with the opportunities, risks and insights of open data approaches vs. traditional concepts that favor to keep data, trade secrets and intellectual property closed; or ambivalent as well as mixed approaches.

Speakers:

• Alfred Radauer, IMC University of Applied Sciences, Krems, Austria
  Main results of the “Study on the Legal Protection of Trade Secrets in the Context of the
  Data Economy” (TS&DE)
• Martin Bader, Technische Hochschule Ingolstadt (THI), Germany
  TS&DE study results – business and management implications
• Nicola Searle, University of London (Goldsmiths), UK
  TS&DE study results – the economists perspective
• Tanya Aplin, King’s College London, UK
  TS&DE study results – the legal perspective
• Roundtable with all
  Interdisciplinary approaches for studying IP issues – observations, challenges and
  success factors from the TS&DE study

Moderator: Sharon K. Sandeen, Mitchell Hamline School of Law, USA

Organizers: Michael Palmedo, PIJIP, American University, United States; Bernd Justin, University College, Dublin, Ireland.

Panelist will present preliminary outcomes of the research project “Right to Research in International Copyright”. The project seeks to develop historical, theoretical empirical approaches that provide arguments for a right to research in international, European and domestic copyright law. To overcome the challenges of the COVID-19 pandemic and to prepare global societies for a post-pandemic world, research will play a key role in increasing preparedness for national, regional and global recovery efforts, but also to ensure the stability of democratic societies and robust protection and to guarantee free speech on the internet. The use and re-use of large amounts of data, for example for the purposes of text and data mining, the analysis and processing of online content for the development of robust algorithms to combat hate speech and other unlawful content, or simply the accessing of the latest scientific publications and studies can be hindered by existing restrictive copyright laws. Especially in a cross-border context, national laws constitute barriers to the effective use of works and other subject matter (e.g. non-original databases) by researchers. International copyright norms do not provide an exception to copyright’s numerous exclusive rights that would permit researchers to user, without prior authorization, protected subject matter. National copyright laws contain different research exceptions, which are, however, varying in scope, create legal uncertainty and constitute obstacles to collaborative cross-border research cooperation.

The panel will explore, from various perspectives, whether national, international and European human rights frameworks contain the elements necessary to construe a right to research out of existing rights and norms, and how researchers perceive and navigate copyright barriers to their work. 

More information on the Right to Research project can be found at: https://tinyurl.com/right-to-research

Speakers:

• Sean Flynn, American University Washington College of Law, USA
  Research Exceptions in Comparative Copyright
• Christophe Geiger, LUISS Guido Carlo, Italy
  The Constitutional Foundations of a Right to Research in European Law and Policy
  
• Alice de Perdigão Lana, InternetLab, Brazil; University of St. Gallen, Switzerland Legislation, Jurisprudence and Perceptions About Text and Data Mining in Latin America

Moderator: Bernd Justin Jütte, University College Dublin, Ireland

Papers

– Flynn, Sean; Schirru, Luca; Palmedo, Michael; and Izquierdo, Andrés. Research Exceptions in Comparative Copyright. (2022) PIJIP/TLS Research Paper Series no. 75. https://digitalcommons.wcl.american.edu/research/75 

ABSTRACT: This Article categorizes the world’s copyright laws according to the degree to which they provide exceptions to copyright exclusivity for research uses. We classify countries based on the degree to which they have a research exception in their law that is sufficiently open to be able to permit reproduction and communications of copyrighted work needed for academic (i.e. non-commercial) text and data mining (TDM) research. We show that nearly every copyright law has at least one exception that promotes uses for research purposes. We find six different approaches to the provision of research exceptions that implicate application to TDM. Notably, not all recent exceptions passed specifically to enable TDM receive the most open ranking in our typology. And a significant number of countries, marked red in our maps, do not provide a research exception or limit uses only to quotations. This report may be useful in helping countries find models for domestic copyright reform as well for consideration of guidelines or norms for harmonization between countries.

– Christophe Geiger and Bernd Justin Jütte. The Right to Research as Guarantor for Sustainability, Innovation and Justice in EU Copyright Law. forthcoming in: Intellectual Property Rights in the Post Pandemic World: An Integrated Framework of Sustainability, Innovation and Global Justice, Taina E. Pihlajarinne, Jukka Mähönen and Pratyush Upreti (eds.), Cheltenham, UK / Northampton, MA, Edward Elgar Publishing, 2022. https://papers.ssrn.com/sol3/abstract_id=4140627 

ABSTRACT: Research is essential for scientific, cultural, and social advancement and will be crucial for the economic and societal recovery in a post-pandemic world. Restrictions to access and use of information contained in copyright-protected expression however can constitute significant hindrances to conducting research efficiently, especially since modern research methods rely on accessing, storing and processing large amounts of digitized data. Over the last decade, copyright in the European Union (EU) has undergone a process of constitutionalization, which saw a growing importance of fundamental rights arguments in policy- and law-making, as well as in the jurisprudence of the Court of Justice of the European Union. However, research, as an activity that is indispensable to achieve the aims and objectives of the Union to enable technological, scientific, and cultural progress and work towards a sustainable future, has insufficiently featured in this constitutional discourse. The digital environment and its tremendous potential to enable new forms of research has accentuated the urgency of addressing the issue from a constitutional perspective under the heading of “digital constitutionalism”. It is therefore argued that a ‘right to research’ derived from international and European human and fundamental rights law can play an important role in the future to remove copyright barriers to research activities and to inform reforms towards more sustainable and research friendly copyright laws in the EU. Although a ‘right to research’ is not expressly included in any of the relevant human rights and fundamental rights instruments, it is so implicitly: in fact, the seeds of a right to research are already contained in a variety of fundamental rights at European and international level and in the aims and objectives of the Union’s constitutional order. Based on the relevant fundamental rights, this paper tries to identify the substance of the right to research, arguing that there is a constitutional imperative to create a paradigmatic shift in European union copyright law towards a copyright system that can help to achieve the programmatic goals of the Union such as sustainable development, innovation and justice that are the core of a regulated market economy. In order to help positioning research as a core priority of the European Union, this paper further proposes the introduction of a specific right to research in the Charter of fundamental Rights of the EU as a precondition for the protection of the moral and material interests of creators, thus mirroring the international human rights justifications of copyright protection.

– Alice de Perdigão Lana et. al. Legislação, jurisprudência e percepções sobre text and data mining na América Latina.
Working paper. Text.

The present study seeks to investigate the connection between the “law on paper” and “law in practice,” to understand how the relationship between the right to research and copyright limitations and exceptions influence the actions of actors (such as companies, government entities, researchers, among others) in the Latin American region. The project is coordinated by the Karisma Foundation (Colombia), with the collaboration of InternetLab in the regional coordination of research.  

Organizer / Chair: Argyri Panezi, IE Law School, Spain

I would like to propose a themed session on copyright exceptions to promote access to knowledge during crises. 

I believe that there is not much/settled copyright doctrine on emergency access to research and educational material, neither at the international nor at the national level. The pandemic period, which we experienced, might not be the only plausible example pointing to a new need for copyright scholars to systematically address emergency and remote access to research material and to discuss the introduction of flexibilities or new exceptions in national and international copyright law to promote emergency and remote access to knowledge/research material during crises.

Organizers: Caterina Sganga, Scuola Superiore Sant’Anna – Pisa, Italy; Martin Kretschmer, University of Glasgow – CREATe, United Kingdom; Joost Poort, University of Amsterdam – IViR, Netherlands; Thomas Margoni, KU Leuven – CITIP, Belgium; Peter Mezei, University of Szeged, Hungary; Ula Furgal, University of Glasgow – CREATe, United Kingdom

In the past decade, EU copyright law has been subject to a wide array of policy debates and interventions. The remarkable attention the EU legislator devoted to the matter has been triggered by the dramatic changes in the patterns of production, distribution and consumption of cultural and creative goods and services – from AI-based creations to the advent of new digital business models, up to automated content moderation and rights management mechanisms – and by the pressing need to balance copyright exclusivity against new conflicting interests and policy goals.

From 2012 on, the EU copyright regulatory framework has been the object of public consultations and numerous preparatory works, which have led to the enactment of 3 vertical Directives (CMO, Orphan Works, Marrakesh), 1 Regulation (Marrakesh), and the first horizontal intervention after 2001, the heatedly debated CDSM Directive in 2019. Parallel to this, the CJEU has issued a bounty of landmark decisions that have pushed the EU harmonization even further, sometimes with historical shifts. Having copyright so much in the center of the stage has also strongly revived the academic debate and its contribution to the policy discussion.
In this context, starting from January 2020, the H2020 consortium reCreating Europe (www.recreating.eu) has mapped, measured and assessed in a cross-disciplinary and transnational fashion the effect of market and regulatory changes on the centripetal forces that shape up and pave EU copyright law. Bringing together researchers and stakeholders, reCreating Europe has offered ground-breaking contributions to a clearer understanding of what makes a regulatory framework fit to promote a diverse cultural and creative production and optimize inclusive access, distribution and consumption of cultural and creative content.
Approaching the end of the project, its almost final results are now being conveyed into policy recommendations and research questions for the future. Significantly, this comes in a moment when copyright seems to have fallen out from the EU policy agenda. Not only does copyright appear only cursorily in the Commission’s IP Action Plan, but its key role in the EU AI and data policies is remarkably downplayed and neglected.

Against this background, this roundtable builds on reCreating Europe’s results and recommendations to provocatively stimulate an academic discussion on whether it is still possible to conceive a research and policy agenda for EU copyright and, if so, what its directions should be.

To this end, reCreating Europe’s researchers will present highlights from the qualitative and quantitative results achieved by mapping and measuring the impact of the multi-level EU and national regulatory framework, and illustrate related policy recommendations, in the field of (a) copyright flexibilities, users’ rights, access to culture and vulnerable groups (b) authors’ income developments against the background of the covid pandemic and their experiences with platforms and AI; (c) copyright and AI technologies; (d) intermediaries, content moderation, access to culture and freedom of (creative) expression. This will lay the groundwork for a forward-looking exchange of ideas on which research questions should guide our future efforts in the copyright arena, and on how the EU copyright policy agenda will likely look like, and should look like, in the next decade.

Speakers:

• Ula Furgal
  Revocation right
• Thomas Margoni
  Copyright and AI technologies
• Joost Poort
  Perspective of authors
• Peter Mezei, Sebastian Schwemer
  Intermediaries and content moderation
• Caterina Sganga
  Copyright flexibilities

Discussants:
Lionel Bently, University of Cambridge, UK
Nicola Searle, University of London (Goldsmiths), UK

Organizer: Sharon Sandeen, Mitchell Hamline School of Law, United States

Opening IP for a better world—particularly with respect to discovery, invention, and creativity—requires access to information and knowledge, but such access is often restricted by confidentiality and secrecy measures. These measures can take many forms, including those defined by law, by business practices, and by judicial and administrative processes. Thus, when openness of information is needed, it is not enough to consider the proper scope and limits of applicable IP laws, particularly trade secret law. Rather, a holistic approach is required that considers the legal, social, practical, and technical means by which access to, and diffusion of, information is restricted.

The proposed themed session will illustrate the need for a holistic approach to information openness starting at the macro-level and ending with specific examples. It will be chaired by Professor Tanya Aplin whose scholarship demonstrates a keen sensitivity to the need for a holistic approach to intellectual property and information law. 

The current panelists and topics of their presentations are as follows:

Professor Sharon Sandeen will present her “Mapping Secrecy” project (see abstract attached) which seeks to identify all the places in law and practice where assertions of secrecy and confidentiality are made. It is her contention that only by doing so can the proper balance between information protection and information openness be achieved because the limitations on the scope of information protection that exist in one area of law may be undermined by other forms of protection, including business practices. Understanding this reality is also important for economic analyses of confidentiality and secrecy as there is a potential disconnect between the information that businesses deem important and the information that is protected by law.

Professor Sandeen’s overview will be followed by presentations that illustrate the need for a holistic approach within specific industry contexts. Professor Nari Lee will discuss the laws and industry practices governing confidential data. (See abstract attached.) Professor Ulla-Maija Mylly will discuss access to documents and transparency related to threats by artificial intelligence (AI), focusing on the EU’s proposed Artificial Intelligence Act. (See abstract attached.)

As time permits and the submissions of others fit the theme of the panel, additional panelists may be added, particularly since the goals of this proposed session are to highlight the many ways that information openness can be undermined and to demonstrate the benefits of a holistic approach to information policy.