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2 | 2019 Volume 10 (2019) Issue 2 ISSN 2190-3387 2 | 2019 Volume 10 (2019) Issue 2 ISSN 2190-3387 Editorial by Gerald Spindler Statements Response to the 2018 Sarr-Savoy Report/ Réponse au Rapport Sarr-Savoy Law and Electronic Commerce Information Technology, Intellectual Property, Journal of by Mathilde Pavis and Andrea Wallace Articles Fixing Copyright Reform: A Better Solution to Online Infringement by Christina Angelopoulos and João Pedro Quintais On Upload-Filters and other Competitive Advantages for Big Tech Companies under Article 17 of the Directive on Copyright in the Digital Single Market by Thomas Spoerri Recht der öffentlichen Werkwiedergabe im harmonisierten Urheberrecht by Helmut Haberstumpf Game-theoretical Model on the GDPR - Market for Lemons? by Tim Zander, Anne Steinbrück and Pascal Birnstill Big Data in the Insurance Industry: Leeway and Limits for Individualising Insurance Contracts by Florent Thouvenin, Fabienne Suter, Damian George and Rolf H. Weber Access to Data in Connected Cars and the Recent Reform of the Motor Vehicle Type Approval Regulation by Wolfgang Kerber and Daniel Gill Different ‘Rules of the Game’ – Impact of National Court Systems on Patent Litigation in the EU and the Need for New Perspectives by Tamar Khuchua Book Review Kraus, Daniel/Obrist, Thierry/Hari, Olivier, Blockchains, Smart Contracts, Decentralised Autonomous Organisation and the Law by Gerald Spindler Editors: Thomas Dreier Axel Metzger Gerald Spindler Lucie Guibault Miquel Peguera www.jipitec.eu Séverine Dusollier Chris Reed Karin Sein Table Of Contents Journal of Intellectual Property, Information Technology and Editorial Electronic Commerce Law by Gerald Spindler 114 Volume 10 Issue 2 October 2019 www.jipitec.eu [email protected] A joint publication of: Prof. Dr. Thomas Dreier, M. C. J. (NYU) Statements KIT - Karlsruher Institut für Technologie, Zentrum für Angewandte Response to the 2018 Sarr-Savoy Report Rechtswissenschaft (ZAR), by Mathilde Pavis and Andrea Wallace 115 Vincenz-Prießnitz-Str. 3, 76131 Karlsruhe Germany Réponse au Rapport Sarr-Savoy Prof. Dr. Axel Metzger, LL. M. (Harvard) by Mathilde Pavis and Andrea Wallace 130 Humboldt-Universität zu Berlin, Unter den Linden 6, 10099 Berlin Prof. Dr. Gerald Spindler Dipl.-Ökonom, Georg-August- Articles Universität Göttingen, Platz der Göttinger Sieben 6, Fixing Copyright Reform: A Better Solution to Online Infringement 37073 Göttingen by Christina Angelopoulos and João Pedro Quintais 147 Karlsruhe Institute of Technology, On Upload-Filters and other Competitive Advantages for Big Tech Humboldt-Universität zu Berlin Companies under Article 17 of the Directive on Copyright in the and Georg-August-Universität Digital Single Market Göttingen are corporations under by Thomas Spoerri 173 public law, and represented by their respective presidents. Recht der öffentlichen Werkwiedergabe im harmonisierten Editors: Urheberrecht Thomas Dreier by Helmut Haberstumpf 187 Axel Metzger Gerald Spindler Game-theoretical Model on the GDPR - Market for Lemons? Lucie Guibault by Tim Zander, Anne Steinbrück and Pascal Birnstill 200 Miquel Peguera Séverine Dusollier Big Data in the Insurance Industry: Leeway and Limits for Chris Reed Karin Sein Individualising Insurance Contracts by Florent Thouvenin, Fabienne Suter, Damian George and Board of Correspondents: Graeme Dinwoodie Rolf H. Weber 209 Christophe Geiger Ejan Mackaay Access to Data in Connected Cars and the Recent Reform of the Rita Matulionyte Motor Vehicle Type Approval Regulation Giovanni M. Riccio by Wolfgang Kerber and Daniel Gill 244 Cyrill P. Rigamonti Olav Torvund Different ‘Rules of the Game’ – Impact of National Court Systems Mikko Välimäki Rolf H. Weber on Patent Litigation in the EU and the Need for New Perspectives Andreas Wiebe by Tamar Khuchua 257 Raquel Xalabarder Editor-in-charge for this issue: Gerald Spindler Technical Editor: Book Review Philipp Schmechel ISSN 2190-3387 Kraus, Daniel/Obrist, Thierry/Hari, Olivier, Blockchains, Smart Contracts, Decentralised Autonomous Organisation and the Law Funded by by Gerald Spindler 272 Editorial Editorial by Gerald Spindler © 2019 Gerald Spindler 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: Gerald Spindler, Editorial, 10 (2019) JIPITEC 114 para 1. 1 This new edition of JIPITEC demonstrates how measurement of privacy risks in an economic way digitalization has changed our society. The articles may be much more useful than the notions of “data cover many different topics, such as insurance law or ownership”. Another aspect of data protection at the antitrust issues concerning smart car systems. The crossroads with insurance law is dealt with in the first statement by Pavis and Wallace challenges the article of Thouvenin/Suter/George/Weber, namely recommendations of the French Sarr-Savoy report, the use of big data in the insurance industry in order which suggested that African cultural heritage to individualize insurance policies, which at first artefacts should be digitized before they are handed glance seem to contradict the principle of solidarity back to African countries; the authors accuse the that traditionally underpins the idea of insurance. French government of taking a double morality stance concerning African material heritage in 4 Another antitrust and competition law aspect contrast to (French) national heritage. Whereas is at the center of Kerber/Gill’s article on the at first glance it seems to be a narrow focus, the recent reform of the Motor Vehicle Type Approve statement sheds light on one of the hot topics in Regulation concerning smart and connected cars. culture law and restitution. They show how the new design of connected cars could lead to distorted competition on markets, as 2 Two articles are dedicated to the ongoing struggle long as interoperability standards are missing. regarding how to strike the right balance between rightholders and liability of intermediaries. Whereas 5 Last but not least, Khuchua deals with patent Angelopoulos and Quintais plead for a reform of litigation and the huge differences across European the recently adopted DSM Directive by introducing jurisdictions, including the impact on European alternative compensation schemes instead of innovation eco-systems. extending accessory liability of platforms, Spoerri deals in his article with the upload filter obligations 6 In sum, the new edition of JIPITEC once again reflects introduced by Art. 17 DSM, showing how they will the dynamics of digitalization in the legal world. We negatively affect content sharing platforms in the hope that readers will enjoy this new edition and EU. More fundamentally Haberstumpf analyzes the find it intellectually stimulating. flaws of the jurisdiction of the European Court of Justice concerning the right to make available to the Gerald Spindler, University of Göttingen public – which is also the bottom line for the new and highly criticized Art. 17 DSM directive. 3 Another ongoing discussion refers to key elements of the GDPR: Zander/Steinbrück/Birnstill highlight the relationship of the GDPR with antitrust and competition law by using a game theoretical approach, reaching the conclusion that the 2 114 2019 Response to the 2018 Sarr-Savoy Report Response to the 2018 Sarr-Savoy Report Statement on Intellectual Property Rights and Open Access relevant to the digitization and restitution of African Cultural Heritage and associated materials by Dr Mathilde Pavis and Dr Andrea Wallace 25 March 2019 © 2019 Mathilde Pavis and Andrea Wallace 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: Mathilde Pavis and Andrea Wallace, Statement: Response to the 2018 Sarr-Savoy Report, 10 (2019) JIPITEC 115 para 1. EXECUTIVE SUMMARY demands are not made of its own national institutions. 1 This response challenges the recommendations made by the Sarr-Savoy Report to systematically • Third, restitution must not be conditioned digitize and make available online as “open access” upon any obligations to allow the digitization all of the African Cultural Heritage designated for of materials held in France and open access restitution. Instead, we write to acknowledge the commitments. Such decisions around digitization complex issues regarding intellectual property rights (including the waiver of any rights for open and open access policies around these materials, access purposes) are cultural and curatorial and we call on the French Government to dedicate prerogatives. Accordingly, they must be made further resources to researching and co-developing by African communities of origin, as they impact digitization solutions with African communities of how heritage may be represented, preserved, origin. Accordingly, we advise against adopting the and remembered. African communities must Report’s blanket recommendations on digitization therefore enjoy full autonomy in devising any and open access for many reasons: access strategies for restituted material and digital cultural heritage. • First and foremost, the Report’s recommendations, if followed, risk placing • Finally, attempts to truly decolonize French the French Government in a position
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