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3 | 2021 Volume 12 (2021) Issue 3 ISSN 2190-3387 3 | 2021 Volume 12 (2021) Issue 3 ISSN 2190-3387 Editorial by Miquel Peguera Articles Towards Unfair Political Practices Law: Learning lessons from the regulation of unfair commercial practices for online political advertising Law and Electronic Commerce Information Technology, Intellectual Property, Journal of by Natali Helberger, Tom Dobber and Claes de Vreese Capacity of EU competition law to promote patent pools: A comparative study by Maryam Pourrahim The EU’s system of knowledge-based liability for hosting service providers in respect of illegal user content – between the e-Commerce Directive and the Digital Services Act by Folkert Wilman Exploring the limits of joint control: the case of COVID-19 digital proximity tracing solutions by Stephanie Rossello and Pierre Dewitte Competition Problems and Governance of Non-personal Agricultural Machine Data: Comparing Voluntary Initiatives in the US and EU by Can Atik and Bertin Martens COVID-19, Pandemics, and the National Security Exception in the TRIPS Agreement by Emmanuel Oke Creativity in crisis: are the creations of artificial intelligence worth protecting? by Anthoula Papadopoulou 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 Miquel Peguera 271 Volume 12 Issue 3 July 2021 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 Rechtswissenschaft (ZAR), Towards Unfair Political Practices Law: Learning lessons from the Vincenz-Prießnitz-Str. 3, regulation of unfair commercial practices for online political advertising 76131 Karlsruhe Germany by Natali Helberger, Tom Dobber and Claes de Vreese 273 Prof. Dr. Axel Metzger, LL. M. (Harvard) Humboldt-Universität zu Berlin, Unter den Linden 6, Capacity of EU competition law to promote patent pools: A comparative 10099 Berlin study Prof. Dr. Gerald Spindler by Maryam Pourrahim 297 Dipl.-Ökonom, Georg-August- Universität Göttingen, Platz der Göttinger Sieben 6, 37073 Göttingen The EU’s system of knowledge-based liability for hosting service providers in respect of illegal user content – between the e-Commerce Karlsruhe Institute of Technology, Directive and the Digital Services Act Humboldt-Universität zu Berlin by Folkert Wilman 317 and Georg-August-Universität Göttingen are corporations under public law, and represented by their respective presidents. Exploring the limits of joint control: the case of COVID-19 digital proximity tracing solutions Editors: by Stephanie Rossello and Pierre Dewitte 342 Thomas Dreier Axel Metzger Gerald Spindler Lucie Guibault Competition Problems and Governance of Non-personal Agricultural Miquel Peguera Machine Data: Comparing Voluntary Initiatives in the US and EU Séverine Dusollier Chris Reed by Can Atik and Bertin Martens 370 Karin Sein Board of Correspondents: Graeme Dinwoodie COVID-19, Pandemics, and the National Security Exception in the TRIPS Christophe Geiger Agreement Ejan Mackaay Rita Matulionyte by Emmanuel Oke 397 Giovanni M. Riccio Cyrill P. Rigamonti Olav Torvund Creativity in crisis: are the creations of artificial intelligence worth Mikko Välimäki protecting? Rolf H. Weber by Anthoula Papadopoulou 408 Andreas Wiebe Raquel Xalabarder Editor-in-charge for this issue: Miquel Peguera Technical Editor: Lydia Förster ISSN 2190-3387 Funded by Miquel Peguera Poch Editorial by Miquel Peguera © 2021 Miquel Peguera 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: Miquel Peguera, Editorial, 12 (2021) JIPITEC 271 para 1. 1 This is the first regular issue of JIPITEC in 2021. It practices. The article underscores the significant has been preceded by two special issues, numbers pro-competitive effects of patent pools and offers 12(1) and 12(2), which dealt monographically with a substantive comparative analysis between the US specific topics. Special issue 12(1) presented the and EU approaches. It suggests some ways for the EU “Kyoto Guidelines on Intellectual Property and to improve its patent pool legal framework. Private International Law” of the International Law Association (ILA) with extended comments. While 4 In the next piece, Folkert Wilman addresses the evo- special issue 12(2) focused on the Directives on lution and current status of the liability exemption Digital Content and Services and on Consumer Sales, for internet intermediaries that store and dissem- and more generally, on consumer contracts and new inate content uploaded by their users set forth in technologies. This third issue, 12(3), resumes the the e-Commerce Directive. While the author identi- thread of JIPITEC regular issues, covering a variety fies some shortcomings in terms of ineffectiveness of timely and relevant topics, which range from in tackling serious illegal content and risks of over- tackling online misinformation to competition law, removal, he argues that there are nonetheless good from intermediary liability to data protection, and reasons for retaining the key features of the system, from IP rights to Covid-19 tracing applications. as the Digital Services Act choses to do. The author puts forward that the noted shortcomings should be 2 Online political advertising is the topic addressed addressed by enacting complementary requirements in the first article, authored by Natali Helberger, and explores to what extent the Digital Services Act Tom Dobber, and Claes de Vreese. Online political proposal contributes to this end. microtargeting is increasingly adopting the practices of sophisticated online commercial advertising, 5 In the following article, Bluetooth-based apps for particularly in the context of social media and data- tracing proximity contacts in the fight against driven platforms. The article shows that, in practice, Covid-19 provide a case-study for dealing with the both commercial and political online advertising more general issue of joint controllership in EU have many elements in common, particularly the data protection law. Stephanie Rossello and Pierre use of data-driven persuasion strategies, which Dewitte examine the ambiguities of the notion of may impact the ability to make free and informed joint control, combining them with those related political decisions. The authors explore whether to the notion of identifiability of personal data and the way in which the law approaches fairness in exploring the scope of the household exemption as commercial advertising may provide valuable well. Applying the theoretical analysis to the case- lessons for future regulation of political advertising. study, the authors argue that a broad understanding They find that, indeed, the experience in the field of of joint controllership may lead to unexpected commercial advertising could serve as a conceptual results, apparently regardless of whether the frame to build on and point to a number of specific architecture of the software system is centralized takeaways from that legal tradition that could be or decentralized, and note that further clarification taken into account when devising a legal framework from the EDPB, National Supervisory Authorities, the for political advertising. CJEU and domestic courts is needed. 3 Maryam Pourrahim examines in the following 6 Competition issues on the availability and use of article to what extent EU competition law can foster non-personal machine data, specifically in the field patent pools as a mechanism for licensing Standard of agricultural data, are tackled in the contribution Essential Patents while avoiding anti-competitive authored by Can Atik and Bertin Martens. The 3 271 2020 Editorial authors argue that data-driven agricultural business models lock farm data into machines and devices that reduce competition in downstream agricultural services markets. The article highlights the need for neutral platforms as intermediaries so that farmers can achieve the benefits from applications that depend on economies of scale and scope in data aggregation. While the authors point to regulatory intervention as the last resort to overcome data lock-in and monopolistic market failures, they also underscore the difficulties in designing data access rights. 7 Covid-19 is again considered in this issue, now from the point of view of Intellectual Property Law, in a contribution by Emmanuel Kolawole Oke. The author explores to what extent states can realistically invoke the national security exception set forth in Article 73(b)(iii) of the TRIPS Agreement to suspend the protection and enforcement of IP rights in order to facilitate the importation and production of vaccines and medicines to fight against the pandemic. The author considers how this provision has been interpreted and applied so far and while he acknowledges that states may indeed be able to invoke the national security exception in this case, he also argues that such an invocation may not be actually helpful to states lacking local manufacturing capacity. 8 Finally, IP rights are also considered in the realm of Artificial Intelligence. Anthoula Papadopoulou examines how copyright law and patent law may interact with AI technology, and particularly
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