Review of "Lingua e diritto. Livelli di analisi"

The book Lingua e diritto: Livelli di analisi brings together contributions by scholars from different fields: anthropology, theory and philosophy of law, comparative law, European law, translation, discourse analysis, pragmatics, morpho-syntax and cognitive linguistics. Contributions deal with a number of issues situated at the interface between language and law: questions of meaning and the interpretation of legal texts, the nature of legal interpretation, problems of ambiguity and vagueness in legal texts, the characteristics of legal language, legal terminology and the multilingualism of European law. As a whole, the book provides insights into a number of different topics and perspectives situated at the interface between language and law. It is of interest both to lawyers and linguists as a valuable and very welcome contribution to the field of legal linguistics.

Cloud Computing in the EU Policy Sphere Interoperability, Vertical Integration and the Internal Market

Cloud computing is a new development that is based on the premise that data and applications are stored centrally and can be accessed through the Internet. Thisarticle sets up a broad analysis of how the emergence of clouds relates to European competition law, network regulation and electronic commerce regulation, which we relate to challenges for the further development of cloud services in Europe: interoperability and data portability between clouds; issues relating to vertical integration between clouds and Internet Service Providers; and potential problems for clouds to operate on the European Internal Market. We find that these issues are not adequately addressed across the legal frameworks that we analyse, and argue for further research into how to better facilitate innovative convergent services such as cloud computing through European policy – especially in light of the ambitious digital agenda that the European Commission has set out.

Die Auswirkungen der E-Commerce-Regelungen der EU-Richtlinie über Verbraucherrechte auf das BGB

This article investigates the effect of the Consumer Rights Directive 2011/83/EU on the German BGB. Special emphasis is placed on e-com- merce-relevant legislation. The article is based on the argument that European law requires the German legislator, when it transposes Directives intended to create rights for individuals into the BGB, to do so inbest conformity with the BGB’s current system. It therefore browses through the BGB’s relevant norms and investigates how such a transposition may be achieved. It will conclude that such a transposition is possible, but that the German legislator should de- vote more time to investigate how such transposi- tion shall be acquired.

Unsticking the centre-piece – the liberation of European copyright law?

Following European legislative initiatives in the field of copyright limitations and exceptions, policy flexibilities formerly available to mem- ber states has been greatly diminished. The law in this area is increasingly incapable of accommodating any expansion in the scope of freely permitted acts, even where such expansion may be an appropriate response to changes in social and technological conditions. In this article, the causes of this problem are briefly canvassed and a number of potential solutions are noted. It is suggested that one such solution – the adoption of an open, factor-based model similar to s 107 of the United States’ Copyright Act – has not received the serious attention it deserves. The fair use paradigm has generally been dismissed as excessively unpredictable, contrary to international law and/or culturally alien. Drawing on recent fair use scholarship, it is argued here that these disadvantages are over-stated and that the potential for the development of a European fair use model merits investigation.

Proposals from Berlin and Paris – Intermediary Liability in European Copyright Law

Two very different proposals on copyright policy – one a privately drafted document, the other a governmental report – are published in this edition of JIPITEC. There is an interesting point of intersection between them because they both consider the difficult question of the liability of online intermediaries for users’ infringements. The first document is “The Berlin Gedankenexperiment on the Restructuring of Copyright Law and Authors Rights”. This is a wide-ranging proposal for a complete recasting of the legal system that promotes the production of, and controls the use of, creative goods. The second policy document has a more limited focus. The French High Council for Literary and Artistic Property (“CSPLA”)’s Mission to Link Directives 2000/31 and 2001/29 – Report and Proposals (“Mission Report”) aims to provide a persuasive intervention in current policy discussions at European Union level concerning the liability or, more appropriately, the non-liability, of online intermediaries for copyright infringement. In this brief introduction, I outline the scope of both proposals and reflect briefly on their recommendations.

CAD Files and European Design Law

Three-dimensional printing (“3DP”) is an additive manufacturing technology that starts with a virtual 3D model of the object to be printed, the so-called Computer-Aided-Design (“CAD”) file. This file, when sent to the printer, gives instructions to the device on how to build the object layer-by-layer. This paper explores whether design protection is available under the current European regulatory framework for designs that are computer-created by means of CAD software, and, if so, under what circumstances. The key point is whether the appearance of a product, embedded in a CAD file, could be regarded as a protectable element under existing legislation. To this end, it begins with an inquiry into the concepts of “design” and “product”, set forth in Article 3 of the Community Design Regulation No. 6/2002 (“CDR”). Then, it considers the EUIPO’s practice of accepting 3D digital representations of designs. The enquiry goes on to illustrate the implications that the making of a CAD file available online might have. It suggests that the act of uploading a CAD file onto a 3D printing platform may be tantamount to a disclosure for the purposes of triggering unregistered design protection, and for appraising the state of the prior art. It also argues that, when measuring the individual character requirement, the notion of “informed user” and “the designer’s degree of freedom” may need to be reconsidered in the future. The following part touches on the exceptions to design protection, with a special focus on the repairs clause set forth in Article 110 CDR. The concluding part explores different measures that may be implemented to prohibit the unauthorised creation and sharing of CAD files embedding design-protected products.

The Law Applicable to Online Copyright Infringements int ALI and CLIP Proposals: A Rebalance of Interest Needed?

The article discusses the problems of applicable law to copyright infringements online. It firstly identifies the main problems related to the well established territoriality principle and the lex loci protectionis rules. Then; the discussion focuses on the "ubiquitous infringement" rule recently proposed by the American Law Institute (ALI) and the European Max Planck Group for Conflicts of Law and Intellectual Propoperty (CLIP). The author strongly welcomes a compromise between the territoriality and universality approaches suggested in respect of ubiquitous infringement cases. At the same time; the paper draws the attention that the interests of "good faith" online service providers (such as legal certainty and foreseeability) have been until now underestimated and invites to take these interests into account when merging the projects into a common international proposal.

EU Commission: Comments on the “Opinion of European Academics on Anti-Counterfeiting Trade Agreement”

The “Opinion of European Academics on Anti-Counterfeiting Trade Agreement” (ACTA) of February 11, 2011, was published in 2 JIPITEC 65 (2011). Signed by more than 25 law professors and academics from across Europe who specialize in the field, this opinion addressed the following concern: Although it is uncontested that the infringement of intellectual property rights, especially in the Internet, prejudices the legitimate interests of right holders, it is still very controversial in Europe and abroad whether the enforcement standards of ACTA are balanced. The European Commission, DG Trade, has now published a document with detailed comments on the Opinion. The comments, which are also available on the website of the European Commission [http://trade.ec.europa.eu/doclib/ html/147853.htm], are republished here with the kind permission of the European Commission.

Law in a Linguistic Battlefield: The Language of the New State Versus the ‘Language of the Oppressors’ in Ukraine

Article 10 of the 1996 Ukrainian Constitution proclaims that “The state language of Ukraine shall be the Ukrainian language” but continues: “Free development, use, and protection of Russian and other languages of national minorities of Ukraine shall be guaranteed in Ukraine.” Consolidating the position of the state language was at the centre of the "Orange Revolution", but President Yanukovich, elected in February 2010, has committed himself to a defence of the Russian language, as a regional language of Ukraine, and the battle is on to replace the Law on Languages of the Ukrainian SSR of 1989, which is still in force. Ukraine has ratified the Council of Europe’s European Charter for Regional or Minority Languages. This article reflects on the relation between language and law, and endeavours to bring clarity to a situation which at times resembles an overheated kettle about to explode.

Personal Data and Encryption in the European General Data Protection Regulation

Encryption of personal data is widely regarded as a privacy preserving technology which could potentially play a key role for the compliance of innovative IT technology within the European data protection law framework. Therefore, in this paper, we examine the new EU General Data Protection Regulation’s relevant provisions regarding encryption – such as those for anonymisation and pseudonymisation – and assess whether encryption can serve as an anonymisation technique, which can lead to the non-applicability of the GDPR. However, the provisions of the GDPR regarding the material scope of the Regulation still leave space for legal uncertainty when determining whether a data subject is identifiable or not. Therefore, we inter alia assess the Opinion of the Advocate General of the European Court of Justice (ECJ) regarding a preliminary ruling on the interpretation of the dispute concerning whether a dynamic IP address can be considered as personal data, which may put an end to the dispute whether an absolute or a relative approach has to be used for the assessment of the identifiability of data subjects. Furthermore, we outline the issue of whether the anonymisation process itself constitutes a further processing of personal data which needs to have a legal basis in the GDPR. Finally, we give an overview of relevant encryption techniques and examine their impact upon the GDPR’s material scope.