Patentability and Scope of Protection for DNA Sequence

Since the mapping of the human genome and the technical innovations in the field of biotechnology, patent law has gone through great controversies. Protection is required for an investor to make an investment but how broad should the given protection be? Whether the invention is a mi- cro-organism capable of dissolving crude oil, or the gene of a soya plant, the genetic engineering required for their production entails vast amounts of capi- tal. The policy in that respect is tailored by legislative acts and judicial decisions, ensuring a fair balance be- tween the interests of patent right holders and third parties. However, the policy differs from jurisdiction to jurisdiction, thus creating inconsistencies with re- gards to the given protection to the same invention, and as a result this could deter innovation and pro- mote stagnation. The most active actors shaping the patent policy on an international level are the patent offices of the United States of America, Japan and the European Patent Organization. These three patent offices have set up a cooperation programme in order to promote and improve efficiency with regards to their patent policies on a global scale. However, recent judicial de- velopments have shown that the policy in respect to the field of biotechnology differs between the patent regimes of the United States of America and the two- layer system of the European Patent Organisation/ the European Union.

On the Search for an Adequate Scope of the Right to Be Forgotten

During the last decades, the virtual world increasingly gained importance and in this context the enforcement of privacy rights became more and more difficult. An important emanation of this trend is the right to be forgotten enshrining the protection of the data subject’s rights over his/her “own” data. Even though the right to be forgotten has been made part of the proposal for a completely revised Data Protection Regulation and has recently been acknowledged by the Court of Justice of the European Union (“Google/Spain” decision), to date, the discussions about the right and especially its implementation with regard to the fundamental right to freedom of expression have remained rather vague and need to be examined in more depth.

The Impact of Western Social Workers in Romania - a Fine Line between Empowerment and Disempowerment

Ideally the social work profession promotes social change, problem solving in human relationships and the empowerment and liberation of people to enhance their well-being (IFSW 2004). The social work practice, however, often proves to be different. Social workers are always in the danger to make decisions for their clients or define problems according to their own interpretation and world view. In quite a number of cases, the consequence of such a social work practice is that the clients feel disempowered rather than empowered. This dilemma is multiplying when western social workers get involved in developing countries. The potential that intervention, with the intention to empower and liberate the people, turns into disempowerment is tremendously higher because of the differences in tradition, culture and society, on the one side and the power imbalance between the ‘West’ and the ‘Rest’ on the other side. Especially in developing countries, where the vast majority of people live in poverty, many Western social workers come with a lot of sympathy and the idea to help the poor and to change the world. An example is Romania. After the collapse of communism in 1989, Romania was an economically, politically and socially devastated country. The pictures of the orphanages shocked the western world. As a result many Non-Governmental Organisations (NGOs), churches and individuals were bringing humanitarian goods to Romania in order to alleviate the misery of the Romanian people and especially the children. Since then, important changes in all areas of life have occurred, mostly with foreign financial aid and support. At the political level, democratic institutions were established, a liberal market economy was launched and laws were adapted to western standards regarding the accession into the European Union and the NATO. The western world has left its marks also at the grassroots level in form of NGOs or social service agencies established through western grants and individuals. Above and beyond, the presence of western goods and investment in Romania is omnipresent. This reflects a newly-gained freedom and prosperity - Romania profits certainly from these changes. But this is only one side of the medal, as the effect of westernisation contradicts with the Romanian reality and overruns many deep-rooted traditions, thus the majority of people. Moreover, only a small percentage of the population has access to this western world. Western concepts, procedures or interpretations are often highly differing from the Romanian tradition, history and culture. Nevertheless, western ideas seem to dominate the transition in many areas of daily life in Romania. A closer look reveals that many changes take place due to pressure of western governments and are conditioned to financial support. The dialectic relationship between the need for foreign aid and the implementation becomes very obvious in Romania and often leads, despite the substantial benefits, to unpredictable and rather negative side-effects, at a political, social, cultural, ecological and/or economic level. This reality is a huge dilemma for all those involved, as there is a fine line between empowering and disempowering action. It is beyond the scope of this journal to discuss the dilemma posed by Western involvement at all levels; therefore this article focuses on the impact of Western social workers in Romania. The first part consists of a short introduction to social work in Romania, followed by the discussion about the dilemma posed by the structure of project of international social work and the organisation of private social service agencies. Thirdly the experiences of Romanian staff with Western social workers are presented and then discussed with regard to turning disempowering tendencies of Western social workers into empowerment.

Citizenship Education – Between Social Inequality and the Promises of Modernity

For several reasons citizenship and democracy has moved into political and research focus. Socio-cultural tensions and inequalities created by globalisation processes boosted by neo-liberal modes of government seem to inspire a concern with “social cohesion”, and the European Community assigns a key role to education in engendering European democratic citizenship. It can be questioned whether it is within the scope of educational programmes to ensure social integration and democracy. However, to clarify the perspectives of the educational issue, the article discusses the conflicts and relationships between cultural identity and democracy within a framework of modernity before returning to the issue of education for democratic citizenship. It is shown on the basis of empirical studies that family background interacts with school factors in the reproduction of democratic inequalities. It is also indicated, however, that this must not be considered an unchangeable pedagogical fact, and the article briefly sketches a set of pedagogical and research challenges concerned with educating for democratic empowerment at different levels of school practice. Although this paper focuses on education and the educational system, the arguments and findings presented can also claim relevance for social pedagogy and social work, esp. in respect of recent developments that stress the educational dimensions of social work.

Why Cherry-Picking Never Leads to Harmonisation: The Case of the Limitations on Copyright under Directive 2001/29/EC

The article examines whether the norms laid down in the Directive in relation to the exceptions and limitations on copyright and related rights can be conducive to a sensible degree of harmonisation across the European Union. Before discussing the degree of harmonisation achieved so far by the Directive, the first part gives a short overview of the main characteristics of the list of exceptions and limitations contained in Article 5 of the Directive. A comprehensive review of the implementation of each limitation by the Member States is beyond the scope of this article. The following section takes a closer look at three examples of limitations that have led to legislative changes at the Member State level as express measures towards the implementation of the Information Society Directive, that is, the limitations for the benefit of libraries, for teaching and research, and for persons with a disability. These exceptions and limitations were later on also identified by the European Commission as key elements in the deployment of a digital knowledge economy. The analysis will show that the implementation of the provisions on limitations in the Information Society Directive did not, and probably cannot, yield the expected level of harmonisation across the European Union and that, as a consequence, there still exists a significant degree of uncertainty for the stakeholders regarding the extent of permissible acts with respect to copyright protected works.

Limitations: The Centerpiece of Copyright in Distress

After the exclusive rights in copyright have been consolidated in a century-long historical development, limitations and exceptions have become the main instrument to determine the exact scope of copyright. Limitations and exceptions do not merely fine-tune copyright protection. Rather, they balance the interests of authors, rightholders, competitors and end-users in a quadrupolar copyright system. Understanding this is of particular importance in the digital and networked information society, where copyrighted information is not only created and consumed, but constantly extracted, regrouped, repackaged, recombined, abstracted and interpreted. However, serious doubts exist whether the present, historically grown system of limitations adequately balances the interests involved in the information society. Both the closed list of limitations allowed under Art. 5 of the EU Information Society Directive 2001/29/EC and a narrowly interpreted three-step test contained in Arts. 13 TRIPS and 5 (5) of the Information Society Directive appear as obstacles in the way of achieving the appropriate balance needed. This brief article outlines the issues involved which were discussed at the International Conference on “Commons, Users, Service Providers – Internet (Self-) Regulation and Copyright” which took place in Hannover, Germany, on 17/18 March 2010 on the occasion of the launch of JIPITEC.

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.

GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.

Diverse Readings of the Court of Justice Judgments on Copyright Work

EU law’s impact on the meaning of the copyright work for a long time seemed limited to software and databases. But recent judgments of the CJEU (Infopaq, BSA, FootballAssociation [Murphy], Painer) suggest we have entered an era of harmonization of copyright subject-matter, after decades of focus on the scope of exclusive rights and their duration. Unlike before however, it is the Court and not the legislator that takes centre stage in shaping pivotal concepts. This article reviews the different readings and criticisms the recent case law on copyright works evokes in legal doctrine across the EU. It puts them in the wider perspective of the on-goingdevelopment towards uniform law and the role of the preliminary reference procedure in that process.

The Levy Runs Dry: A Legal and Economic Analysis of EU Private Copying Levies

This article provides a legal and economic analysis of private copying levies in the EU, against the background of the Copyright Directive (2001/29), a number of recent rulings by the European Court of Justice and the recommendations presented by mediator Vitorino earlier this year. It concludes that notwithstanding these rulings and recommendations, there remains a lack of concordance on the relevance of contractual stipulations and digital rights management technologies (DRM) for setting levies, and the concept of harm. While Mr Vitorino and AG Sharpston (in the Opinion preceding VG Wort v. Kyocera) use different lines of reasoning to argue that levies raised on authorised copies would lead to double payment, the Court of Justice’s decision in VG Wort v. Kyocera seems to conclude that such copies should nonetheless be levied. If levies are to provide fair compensation for harm resulting from acts of private copying, economic analysis suggests one should distinguish between various kinds of private copies and take account of the extent to which the value said copies have for consumers can be priced into the purchase. Given the availability of DRM (including technical protection measures), the possibility of such indirect appropriation leads to the conclusion that the harm from most kinds of private copies is de minimis and gives no cause for levies. The user value of copies from unauthorised sources (e.g. from torrent networks or cyber lockers), on the other hand, cannot be appropriated indirectly by rightholders. It is, however, an open question in references for preliminary rulings pending at the Court of Justice whether these copies are included in the scope of the private copying exception or limitation and can thus be levied for. If they are not, as currently happens in several EU Member States, legal and economic analysis leads to the conclusion that the scope of private copying acts giving rise to harm susceptible of justifying levies is gradually diminishing.

Comparison of 2D and 3D GUI Widgets for Stereoscopic Multitouch Setups

Recent developments in the area of interactive entertainment have suggested to combine stereoscopic visualization with multi-touch displays, which has the potential to open up new vistas for natural interaction with interactive three-dimensional (3D) applications. However, the question arises how the user interfaces for system control in such 3D setups should be designed in order to provide an effective user experience. In this article we introduce 3D GUI widgets for interaction with stereoscopic touch displays. The design of the widgets was inspired to skeuomorphism and affordances in such a way that the user should be able to operate the virtual objects in the same way as their real-world equivalents. We evaluate the developed widgets and compared them with their 2D counterparts in the scope of an example application in order to analyze the usability of and user behavior with the widgets. The results reveal differences in user behavior with and without stereoscopic display during touch interaction, and show that the developed 2D as well as 3D GUI widgets can be used effectively in different applications.