3 | 2018 Volume 9 (2018) Issue 3 ISSN 2190-3387
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3 | 2018 Volume 9 (2018) Issue 3 ISSN 2190-3387 Editorial by Thomas Dreier Articles A Plea for Digital Exhaustion in EU Copyright Law by Caterina Sganga Law and Electronic Commerce Information Technology, Intellectual Property, Journal of Facilitating Access to Out-of-Commerce Works in the Digital Single Market – How to Make Pico della Mirandola’s Dream a Reality in the European Union by Christophe Geiger, Giancarlo Frosio and Oleksandr Bulayenko The Intersection of 3D Printing and Trademark Law by Nina Natalia Baranowska Intellectual Property under the Scrutiny of Investor-State Tribunals: Legitimacy and New Challenges by Clara Ducimetière ‘A Recent Exploration of Accessing Public Sector Information: Theoretical and Legal Background, with a Special Focus on Hungary by Gábor Szalay Hard Drive Crash: An Examination of Liability for Self-Driving Vehicles by Keri Grieman Data Governance in Connected Cars: The Problem of Access to In-Vehicle Data by Wolfgang Kerber Book Reviews Gustavo Ghidini, Rethinking Intellectual Property – Balancing Conflicts of Interest in the Constitutional Paradigm by Séverine Dusollier Towards a Purposive Copyright System – Review of the book of Daniel J. Gervais, (Re)structuring Copyright by Alain Strowel P. Bernt Hugenholtz (ed.), Copyright Reconstructed: Rethinking Copyright’s Economic Rights in a Time of Highly Dynamic Technological and Economic Change by Thomas Dreier Abbe E.L. Brown, Charlotte Waelde (ed.), Research Handbook on Intellectual Property and Creative Industries by Veronika Fischer Thomas Eger, Marc Scheufen: The Economics of Open Access – On the Future of Academic Publishing by Eric W. Steinhauer Editors: Thomas Dreier Axel Metzger Gerald Spindler Lucie Guibault Miquel Peguera www.jipitec.eu Séverine Dusollier Chris Reed Karin Sein Table Of Contents Editorial Journal of Intellectual Property, by Thomas Dreier 209 Information Technology and Electronic Commerce Law Volume 9 Issue 3 December 2018 Articles www.jipitec.eu [email protected] A Plea for Digital Exhaustion in EU Copyright Law A joint publication of: by Caterina Sganga 211 Prof. Dr. Thomas Dreier, M. C. J. (NYU) KIT - Karlsruher Institut für Technologie, Facilitating Access to Out-of-Commerce Works in the Digital Single Zentrum für Angewandte Market – How to Make Pico della Mirandola’s Dream a Reality in Rechtswissenschaft (ZAR), the European Union Vincenz-Prießnitz-Str. 3, by Christophe Geiger, Giancarlo Frosio and Oleksandr Bulayenko 240 76131 Karlsruhe Germany Prof. Dr. Axel Metzger, LL. M. (Harvard) The Intersection of 3D Printing and Trademark Law Humboldt-Universität zu by Nina Natalia Baranowska 251 Berlin, Unter den Linden 6, 10099 Berlin Intellectual Property under the Scrutiny of Investor-State Tribunals: Legitimacy and New Challenges Prof. Dr. Gerald Spindler Dipl.-Ökonom, Georg-August- by Clara Ducimetière 266 Universität Göttingen, Platz der Göttinger Sieben 6, A Recent Exploration of Accessing Public Sector Information: 37073 Göttingen Theoretical and Legal Background, with a Special Focus on Hungary Karlsruhe Institute of Technology, by Gábor Szalay 282 Humboldt-Universität zu Berlin and Georg-August-Universität Hard Drive Crash: An Examination of Liability for Self-Driving Göttingen are corporations under Vehicles public law, and represented by by Keri Grieman 294 their respective presidents. Editors: Data Governance in Connected Cars: The Problem of Access to Thomas Dreier In-Vehicle Data Axel Metzger by Wolfgang Kerber 310 Gerald Spindler Lucie Guibault Miquel Peguera Book Reviews Séverine Dusollier Chris Reed Gustavo Ghidini, Rethinking Intellectual Property – Balancing Karin Sein Conflicts of Interest in the Constitutional Paradigm Board of Correspondents: Graeme Dinwoodie by Séverine Dusollier 332 Christophe Geiger Ejan Mackaay Towards a Purposive Copyright System – Review of the book of Rita Matulionyte Daniel J. Gervais, (Re)structuring Copyright Giovanni M. Riccio by Alain Strowel 335 Cyrill P. Rigamonti Olav Torvund P. Bernt Hugenholtz (ed.), Copyright Reconstructed: Rethinking Mikko Välimäki Rolf H. Weber Copyright’s Economic Rights in a Time of Highly Dynamic Andreas Wiebe Technological and Economic Change Raquel Xalabarder by Thomas Dreier 338 Editor-in-charge for this issue: Abbe E.L. Brown, Charlotte Waelde (ed.), Research Handbook on Thomas Dreier Intellectual Property and Creative Industries Technical Editor: by Veronika Fischer 341 Philipp Schmechel ISSN 2190-3387 Thomas Eger, Marc Scheufen: The Economics of Open Access – On the Future of Academic Publishing Funded by by Eric W. Steinhauer 345 Thomas Dreier Editorial by Thomas Dreier © 2018 Thomas Dreier Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Thomas Dreier, Editorial, 9 (2018) JIPITEC 209 para 1. 1 In view of the ever-faster advancement of digital the same time integrating in-depth analyses with technologies, the law of intellectual property (IP) other articles that just provide a quick overview, or and of information technology (IT) is increasingly which only concentrate on a particular issue within expanding. As a result, a journal such as JIPITEC, a wider area. the Journal of Intellectual Property, Information Technology and E-Commerce Law, has to deal 3 Hence, the lead article by Caterina Sganga, Associate with an increasingly diverse range of topics. This Professor of Comparative Private Law, DIRPOLIS is particularly reflected in the present issue, which Institute, Sant’Anna School of Advanced Studies rather than focusing on a particular area of law in Pisa (Italy), provides a very thorough in-depth covers a wide range of legal regulations, from analysis of the case law handed by the CJEU on the traditional IP law and the law of international issue of digital exhaustion. In view of the CJEU’s treaties via traditional liability, and insurance law argumentation in the famous UsedSoft-case and to data protection laws and the regulation providing following the Ranks-case it is still unclear to what for IT-security. This plethora of different issues is extent the CJEU considers UsedSoft is limited to triggered, amongst others, by the paradigm shift the Computer Program Directive, or whether the from trading in physical objects to immaterial CJEU will also arrive at the same result with regard services, and the shift from industrial manufacturing to works protected under the InfoSoc-Directive. to home production of physical objects with the Sganga develops several arguments which might help of 3D-printing, as well as by the propagation of serve as a basis for the CJEU’s decision in the pending autonomously driving vehicles. Tom Kabinet-case, and she makes a convincing argument in favor of “tertium genus” in between 2 This variety of topics creates a dilemma for the editor the distribution of physical copies on the one hand, who – besides guaranteeing that the Journal’s high and the provision of immaterial services on the quality standard is met – has to pick and choose which other. This model would allow the application of of the manuscripts submitted he or she considers the doctrine of exhaustion also to the distribution/ worthy of publication. Some of the journal’s readers communication of some content, which is protected might wish to see the focus of the article in one by the InfoSoc-Directive and which is communicated particular area, whereas some readers might wish online. to see another area highlighted. Moreover, readers who are already familiar with a particular topic 4 In a similar way, the following article by Christophe or are even experts in their particular field might Geiger, Giancarlo Frosio and Oleksandr Bulayenko – be looking for additional in-depth information, respectively, Director General and Director of while those less specialized might rather wish to the Research Department, Senior Researcher and be confronted with an overview which just outlines Lecturer as well as Researcher and PhD Candidate the main issues of a particular area. In this respect, of the Centre for International Intellectual Property the present issue attempts a balancing act between Studies (CEIPI) in Strasbourg, France – seek to give a variety of topics of different legal fields, while at advice to the European legislature as regards the 3 209 2018 Editorial adoption of a suitable legal regime for out-of- 8 With Keri Grieman, LLM Candidate at London’s Queen commerce works. While generally being supportive Mary University (UK), the focus of this issue shifts of the legal rules proposed in a possible Directive on to self-driving autonomous vehicles. In her article Copyright in the Digital Single Market, the authors entitled “Hard drive crash”, Grieman examines the provide some suggestions for improvement, notably different liability regimes that are available for concerning the definition of the scope of search application to scenarios of damages caused by self- required for establishing the out-of-commerce status driving vehicles. In this respect, she analyses both of works, the requirement of the representative statutory solutions and the – albeit small – body character of collective management organisations, of existing case law, and she summarizes the main and the non-application of the mechanism to third- arguments on a policy level. country works. It thus wants to help make Pico della Mirandola’s