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3 | 2020 Volume 11 (2020) Issue 3 ISSN 2190-3387 3 | 2020 Volume 11 (2020) Issue 3 ISSN 2190-3387 Editorial by Lucie Guibault Articles The Concept Of Joint Control Under The Data Protection Law Enforcement Directive 2016/680 In Contrast To The GDPR by Tristan Radtke Demystifying The Role Of Data Interoperability In The Access And Sharing Law and Electronic Commerce Information Technology, Intellectual Property, Journal of Debate by Jörg Hoffmann and Begoña Glez. Otero From Theory To Practice: Exercising The Right Of Access Under The Law Enforcement And PNR Directives by Plixavra Vogiatzoglou, Katherine Quezada Tavárez, Stefano Fantin and Pierre Dewitte Net Neutrality And Free Choice Of Routers And Modems In Europe by Lucas Lasota Direct Copyright Liability As Regulation Of hosting Platforms For The Copyright-Infringing Content Uploaded By Their Users: Quo vadis? by Bianca Hanuz Navigating The Fragmented Online Music Licensing Landscape In Europe – A Legislative Compass In Sight? by Lucius Klobučník Abuse Of Patent Enforcement In Europe: How Can Start-ups And Growth Companies Fight Back? by Krista Rantasaari Editors: Thomas Dreier Axel Metzger Gerald Spindler Lucie Guibault Miquel Peguera Séverine Dusollier Chris Reed www.jipitec.eu Karin Sein Table Of Contents Journal of Intellectual Property, Information Technology and Editorial Electronic Commerce Law by Lucie Guibault 241 Volume 11 Issue 3 December 2020 www.jipitec.eu [email protected] A joint publication of: Prof. Dr. Thomas Dreier, M. C. J. (NYU) Articles KIT - Karlsruher Institut für Technologie, Zentrum für Angewandte The Concept Of Joint Control Under The Data Protection Law Enforcement Rechtswissenschaft (ZAR), Directive 2016/680 In Contrast To The GDPR Vincenz-Prießnitz-Str. 3, by Tristan Radke 242 76131 Karlsruhe Germany Prof. Dr. Axel Metzger, LL. M. (Harvard) Demystifying The Role Of Data Interoperability In The Access And Sharing Humboldt-Universität zu Debate Berlin, Unter den Linden 6, by Jörg Hoffmann and Begoña Glez. Otero 252 10099 Berlin Prof. Dr. Gerald Spindler Dipl.-Ökonom, Georg-August- From Theory To Practice: Exercising The Right Of Access Under The Law Universität Göttingen, Enforcement And PNR Directives Platz der Göttinger Sieben 6, by Plixavra Vogiatzoglou, Katherine Quezada Tavárez, Stefano Fantin 37073 Göttingen and Pierre Dewitte 274 Karlsruhe Institute of Technology, Humboldt-Universität zu Berlin Net Neutrality And Free Choice Of Routers And Modems In Europe and Georg-August-Universität by Lucas Lasota 303 Göttingen are corporations under public law, and represented by their respective presidents. Direct Copyright Liability As Regulation Of hosting Platforms For The Copyright-Infringing Content Uploaded By Their Users: Quo vadis? Editors: by Bianca Hanuz 315 Thomas Dreier Axel Metzger Gerald Spindler Navigating The Fragmented Online Music Licensing Landscape In Europe Lucie Guibault – A Legislative Compass In Sight? Miquel Peguera by Lucius Klobučník 340 Séverine Dusollier Chris Reed Karin Sein Abuse Of Patent Enforcement In Europe: How Can Start-ups And Growth Board of Correspondents: Companies Fight Back? Graeme Dinwoodie by Krista Rantasaari 358 Christophe Geiger Ejan Mackaay Rita Matulionyte Giovanni M. Riccio Cyrill P. Rigamonti Olav Torvund Mikko Välimäki Rolf H. Weber Andreas Wiebe Raquel Xalabarder Editor-in-charge for this issue: Lucie Guibault Technical Editor: Lydia Förster ISSN 2190-3387 Funded by Lucie Guibault Editorial by Lucie Guibault © 2020 Lucie Guibault 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: Lucie Guibault, Editorial, 11 (2020) JIPITEC 241 para 1. 1 This issue marks the tenth month into the COVID-19 4 It will take experts years to unravel what led to the pandemic. Since March 2020, we have learned to live catastrophic year of 2020. One clear contributor to with the more or less strict public health measures the general upheaval is the role Big Tech played in put in place to ‘flatten the curve’ of infection from the spread of online misinformation. Wild ideas and the virus. Words like ‘social distancing’, ‘mask lies swirled on Twitter, Facebook, Parler, Instagram wearing’, and ‘lockdowns’ have taken an entirely and others, ranging from COVID-19 denials, to new meaning. In spite of these measures, the human Brexit manipulation, anti-vaxxer misconceptions, toll is huge, most clearly among frontline workers QAnon conspiracy theories and white supremacist and vulnerable people. While the curve is far from propaganda. Once Trump and his supporters were flat in most countries, the pandemic has brought banned from social media sites, researchers observed to light the long time unacknowledged persistence a seventy percent decline in online misinformation. of systemic inequalities: figures show that poorer, The recurring call for the regulation of Big Tech often racialized, communities are affected in a companies deserves increased attention in the disproportionate way by the virus. wake of the recent events. More research is critical to understand the complex workings of powerful, 2 The positive news is that, at the end of 2020, three integrated disinformation ecosystems and develop vaccines received the approval of health authorities ways to address competing rights and freedoms in in most countries of Europe, Canada, the United States a global economy. and elsewhere. Several challenges await, however. Among them are the need to ensure an equitable 5 While these events rage outside our windows, normal distribution of vaccine doses among the countries life continues as much as COVID-19 restrictions allow. of the world, to organize the logistics behind the This issue contains captivating articles on issues transportation and handling requirements of the close to our daily lives, dealing more specifically vaccines, as well as to convince people to actually with data protection, online copyright and patent get vaccinated. protection. Two articles investigate the relationship between the General Data Protection Regulation and 3 Amid a global rise in COVID-19 cases and deaths, the Enforcement Directive, looking respectively at the last few weeks of 2020 saw the simultaneous the notion of joint control (Radtke) and the right conclusion of the Brexit process and the meltdown of access (Vogiatzoglou, Fantin and DeWitte). On of the Trump administration. While the deal reached a related topic is the article by Hoffman and Otero between PM Boris Johnson and the European Gonzalez on the role of data interoperability in Commission is certainly going in the books as a the access and sharing debate. Lasota wrote on the major historic event, it pales in comparison to the rarely considered issue of net neutrality as seen from events that took place in the United States following the perspective of router and modem users. While the Presidential elections on November 3rd. Nothing Klobunick explores ways to facilitate the online shocked the world more than the violent and lethal licensing of musical works, Hanuz examines whether siege of the Capitol in Washington D.C. on January 6th hosting platforms could be held directly liable for 2021 by Trump supporters. This led to a second vote the illegal copyright content uploaded by their users. by Congress within a twelve month period towards Last but not least is Rantasaari’s article on the abuse the impeachment of the President, this time under of patent enforcement actions. Enjoy the read! the heading “willful incitement of insurrection.” Democracy in America has never been so fragile. Lucie Guibault 3 241 2020 Tristan Radtke The Concept Of Joint Control Under The Data Protection Law Enforcement Directive 2016/680 In Contrast To The GDPR by Tristan Radtke* Abstract: While the EU General Data Protec- GDPR and LED lie in the details, but at the same time tion Regulation 2016/679 (hereinafter the GDPR) is they are significant and representative of the specif- on everyone’s lips, the EU Data Protection Law En- ics and particular aims of the LED compared to the forcement Directive 2016/680 (hereinafter the LED) GDPR. The following article discusses the objectives exhibits a rather shadowy existence. This also applies of the LED and the Joint Control concept and ex- with regard to the concept of multiple controllers de- plains them on the basis of the differences between termining purposes and means of data processing the provisions related to Joint Control (Art. 26 GDPR activities (Joint Control). The LED requires the Mem- and Art. 21 LED). In addition, collisions of application ber States to implement a Joint Control concept sim- of GDPR and LED and their impact on Joint Control- ilar to the concept set out under the GDPR. Differ- lers are discussed. ences between the Joint Control concepts under the Keywords: Joint Control; Data Protection; GDPR; LED © 2020 Tristan Radtke 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: Tristan Radtke, The concept of Joint Control under the Data Protection Law Enforcement Directive 2016/680 in contrast to the GDPR, 11 (2020) JIPITEC 242 para 1. A. (General) Data Protection Law responding right and objective enshrined in and the Concept of Joint Control Art. 8(1) Charter and Art. 16(1) TFEU.2 1 Data protection law intends to contribute to an effec- 2 Transparency (Art. 5(1)(a) GDPR) on data processing tive protection of natural persons – the data subjects operations, the pursued purposes and the persons – in relation to the processing of “their” personal data having control over the data processing operations (cf. Art. 1(2) GDPR and previously Art. 1(1) Data Pro- is a key element to ensure data subjects are able tection Directive 95/46/EC1 (hereinafter the DPD)).
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