CIPIL Intellectual Property Seminar Series

Professor Ansgar Ohly, (LMU, Munich) delivered the fourteenth Annual International Intellectual Property Lecture (funded from the Herchel Smith Bequest) at Emmanuel College entitled 'Hybrids between Intellectual Property and Unfair Competition Law' on 12 March 2019 as a guest of CIPIL (the Centre for Intellectual Property and Information Law). Professor Ohly holds law degrees from the Universities of Bonn, Cambridge (LL M) and Munich (Dr jur), and he is the Chair for Civil Law, Intellectual Property and Competition Law at the University of Munich. He is also a Visiting Senior Member of St Peter’s College and an Honorary Bencher of the Middle Temple. Prior to joining the Munich faculty, he was head of the Commonwealth section of the Max Planck Institute for Intellectual Property and Competition Law and professor at the University of Bayreuth. Ansgar’s main fields of academic interest are all areas of intellectual property law, the law of unfair competition and the rights of personality and privacy. He is especially interested in European developments and in the comparison of civil law and common law systems. Recent publications include the volume “The Europeanization of Intellectual Property Law” (OUP 2013, co-edited with Dr Justine Pila), a study on German copyright law and the internet (Beck 2014, general report for the German Lawyers’ Congress 2014) and a commentary on the German law of unfair competition (Beck 2016, with Prof Olaf Sosnitza). He is also the co-editor of GRUR, the leading German intellectual property journal. For more information see the CIPIL website at: https://www.cipil.law.cam.ac.uk/annual-international-intellectual-property-lecture

Professor Annette Kur (Max Planck Institute) spoke on the topic of "The CJEU's Functions Doctrine - where does it come from and where will it take us?" at a seminar on 5 March 2019. Professor Kur is an Affiliated Research Fellow in Intellectual Property and Competition Law at the Max Planck Institute for Innovation and Competition. She is the author of numerous books and articles in the field of national, European and international trade mark, unfair competition and industrial design law and international jurisdiction and choice law and was involved in the MPI study conducted in preparation of the recent trade mark law reform. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Dr Xavier Seuba (CEIPI, University of Strasbourg) spoke on the topic of "Negotiating Intellectual Property Chapters in New European Trade Agreements" at a seminar on 28 February 2019. Preferential trade agreements have become a crucial source of international intellectual property law. As a proof of this, more than 160 preferential trade agreements presently regulate intellectual property in a relevant manner, and the number continues to increase. By January 2019 the European Union (EU) was negotiating new trade agreements with large trade partners such as India, Mexico, Indonesia and Mercosur. Likewise, a new trade agreement was concluded in 2018 between the EU and Japan, and the revision of older treaties is underway. In all cases intellectual property is among the central themes of the negotiations. The sophistication of intellectual property chapters of new trade agreements also increases, since they include more and more detailed provisions. Indeed, many of these chapters resemble abridged versions of national intellectual property codes. While well-known features of intellectual property regulation in trade agreements persist -in particular the promotion of higher standards and the transplantation of EU intellectual property provisions- there are also important novelties. The fact that EU trade partners now include states with an important bargaining power may alter the usual content of intellectual property chapters. At the same time, the promises made by the EU to increase transparency and balance will be the object of scrutiny when the final trade agreements go through parliamentary approval. Reminiscences of a new ACTA-like failure should temper some of the most ambitious European proposals, notably in areas relating the protection of public health and intellectual property enforcement. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Antony White QC of Matrix Chambers spoke on the title: 'Mapping the Frontiers of Privacy and Data Protection: Recent Cases and Key Issues' at a seminar on 21 February 2019. Antony's talk specifically explores: - Article 8 of the European Convention on Human Rights and criminal investigation/arrest; - Article 8 and family life; - The liability of internet intermediaries for the posting of private content; - The convergence and divergence of privacy and data protection. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Professor Dr Hong Xue of the Beijing Normal University, spoke on the topic of "Copyright on E-Commerce Platforms: An Insight Preview of Chinese New Law" at a seminar on 18 January 2019. Chinese E-Commerce Law, effective from 1 January 2019, impacts all the stakeholders in the business. This comprehensive Law revamps the copyright system applicable to e-commerce platforms by redefining their roles, responsibility and liability. E-commerce platforms are one of the powerful infrastructures that enable Chinese global business development. The Law’s extra-territoriality may not be overlooked. How would this new system affect the interests of the parties involved? Would it facilitate a balanced copyright system through multi-stakeholder interaction? Is the platform governance relevant to the copyright liability and law enforcement? The answers are in the brain. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Dr Łukasz Żelechowski of Warsaw University, spoke on the topic of "Freedom of Expression and Trade Mark Law: In Search of Legal Mechanisms for Striking a Balance" at a seminar on 20 November 2018. The tension between protection of trade mark rights and considerations concerning freedom of expression and its limits has grown in recent years. The development of case law in this area in the EU and elsewhere has proven that there might be instances in which there is a need for an intervention taking the form of a balancing of interests of various actors at play. The speaker examines closer two areas where such tensions are present – first, the interface between the morality/public order registration exclusion and freedom of expression and, second, the issue of balancing of competing interests on the premise of freedom of expression in the area of trade mark infringement. The analysis will focus on the EU perspective and will seek to identify and analyse the relevant legal mechanisms for striking a balance. Particular emphasis is put on the reformed legal framework in EU trade mark law, including references to freedom of expression and other fundamental rights in the preambles of the Trade Mark Directive 2015 and the EUTMR 2017. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Gillian Phillips, Director of Editorial Legal Services at The Guardian News and Media spoke on the topic of "The Ethical and Legal Framework within which the Guardian approaches Information Concerning Natural Persons" at a seminar on 15 November 2018. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Dr Ge Chen (Durham University) spoke on the topic of 'How Copyright Affects Free Expression: A Perspective from Sino-US Trade War' at a seminar on 1 November 2018. The tension between copyright and freedom of expression has generated a spate of discussion and debates in recent copyright law discourse. Presumably, copyright may both facilitate and hinder free expression in different contexts. China’s copyright law contributes eminently to the study on this subject in that it is historically rooted in the government’s policy of censorship and intertwined with China’s trade relations with major powers of the world. In this seminar, the speaker will reveal a unique and nuanced pattern of interplay between copyright and free expression through a pioneering comparative study of Chinese law and international law. The ongoing China-US trade frictions warrants the significance of this study that highlights the complicated linkage of IP, human rights, and trade. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Professor Robert W. Gomulkiewicz (University of Washington) spoke on the topic of 'Copyright Licensing for Revolutionaries' at a seminar on 26 October 2018. Open access and open development have become popular approaches to creative and innovative activity. How does law, especially intellectual property law, relate to openness? Drawing on lessons from open source software, this seminar explores the legal tools used by open source revolutionaries and the role of intellectual property and contract in advancing the movement. In doing so, the seminar compares open source to other methods of development. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Dr Yin Harn Lee of Sheffield University, spoke on the topic of 'Rethinking the "Copy" in Copyright' at a seminar on 18 October 2018. The exclusive right to control the copying of a work has been given a very broad definition in the present day. The adoption of a technology-neutral definition of ‘copying’ means that it now encompasses tangible and intangible copies, permanent and temporary copies, and even copies that are merely incidental to the use of the work. The effect of this has been to expand the scope of the right to uses of works that would not conventionally be thought to fall within the copyright owner’s control. The aim of this paper is to suggest some principles on the basis of which the scope of this extremely broad right might be limited. It draws inspiration from pre-modern judicial approaches to the concept of ‘copying’ which, as it demonstrates, was interpreted in ways that recognised certain implicit limitations – albeit not always well-articulated – on the scope of the copyright owner’s exclusive right to copy the work. These, it suggests, might serve as useful starting points for the development of a normative basis on which a more restricted interpretation of the right to copy might be justified. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Graeme B. Dinwoodie, Global Professor of Intellectual Property Law, IIT Chicago-Kent College of Law, spoke on the topic of "Non-Traditional Marks In Europe: Conceptual Lessons From Their Potential Demise" at a seminar on 10 May 2018. Graeme B. Dinwoodie is Global Professor of Intellectual Property Law at Chicago-Kent College of Law, and co-Director of the Centre for Design, Law and Technology. He returned full-time to Chicago in 2018 after nine years as the Professor of Intellectual Property and Information Technology Law at the University of Oxford, where he was also Director of the Oxford Intellectual Property Research Centre, and a Professorial Fellow of St. Peter’s College. Immediately prior to taking up the IP Chair at Oxford, Professor Dinwoodie was for several years a Professor of Law at Chicago-Kent College of Law and, from 2005-2009, also held a Chair in Intellectual Property Law at Queen Mary College, University of London. Professor Dinwoodie has held a number of visiting or honorary positions, including as the Yong Shook Lin Visiting Professor of Intellectual Property Law at the National University of Singapore, a Global Professor of Law at New York University School of Law, an Honorary Professor of Law at the University of Strasbourg, the George P. Smith II Distinguished Visiting Chair at Indiana University Maurer School of Law, and a visiting professor of law at the University of Pennsylvania School of Law. Professor Dinwoodie holds an LLB (Hons) degree from the University of Glasgow, an LL.M. degree from Harvard Law School (where he was a John F. Kennedy Scholar), and a J.S.D. degree from Columbia Law School (where he was a Burton Fellow). He was elected as a member of the American Law Institute in 2003, and served as President of ATRIP from 2011-2013. In 2008, the International Trademark Association awarded Professor Dinwoodie the Pattishall Medal for Teaching Excellence in Trademark Law. In addition to his book A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime (Oxford Univ. Press 2012), co-authored with Rochelle Dreyfuss, he is the author of five casebooks including Trademarks and Unfair Competition: Law and Policy (4th ed 2014) (with Janis), and International Intellectual Property Law and Policy (2d ed. 2008) (with Hennessey, Perlmutter and Austin). His scholarship has appeared in several leading law journals and is widely cited by scholars in Europe, the United States and elsewhere. He received the 2008 Ladas Memorial Award from the International Trademark Association for his article Confusion Over Use: Contextualism in Trademark Law (with Janis). Professor Dinwoodie has served as a consultant to the World Intellectual Property Organization on matters of private international law, as an Adviser to the American Law Institute Project on Principles on Jurisdiction and Recognition of Judgments in Intellectual Property Matters, and as a consultant to the United Nations Conference on Trade and Development on the Protection of Traditional Knowledge. He currently serves as an Adviser on the ALI’s project on the Restatement of Copyright Law and is a door tenant at 3 New Square. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Professor Robert Burrell (University of Sheffield) and Dr Aaron Graham (UCL) spoke on the topic of "The History of Patents,1600-1850" at a seminar on 3 May 2018. Robert Burrell holds joint appointments as Professor of Law at the University of Sheffield and Melbourne Law School. His previous academic positions include posts at the Australian National University and King’s College London. He has also been a Herbert Smith visiting fellow at the University of Cambridge and a visiting professor at the Benjamin N. Cardozo School of Law in New York. His principal areas of interest are intellectual property and legal history. He is the author (with A. Coleman) of Copyright Exceptions: The Digital Impact (CUP, 2005) and (with M. Handler) of Australian Trade Mark Law (OUP, 2010; 2 nd ed. 2016). His work has been cited by the High Court of Australia, the Federal Court of Australia, the Supreme Court of New Zealand, the Court of Appeal of England and Wales and in an Opinion of an Advocate General to the European Court of Justice. Outside of the academy Robert spent several years working as a registered trade marks attorney in Australia, eventually helping to establish a new boutique firm that specialises in intellectual property matters. Dr Aaron Graham is a Leverhulme Early Career Fellow at the Department of History at UCL, and was previously a British Academy Postdoctoral Fellow at the University of Oxford. His work looks at politics, governance and finance in Britain and the British Empire between 1660 and 1850. He is currently working on the politics, economics and laws of banking regulation in the British Empire between 1800 and 1850, and is writing a book for OUP on society, slavery and the state in Jamaica between 1770 and 1840. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Professor Niva Elkin-Koren, of Haifa Center for Law and Technology delivered the twelth Annual International Intellectual Property Lecture (funded from the Herchel Smith Bequest) at Emmanuel College entitled 'Fair Use by Design' on 14 March 2016 as a guest of CIPIL (the Centre for Intellectual Property and Information Law). Professor Niva Elkin-Koren is the founding director of the Haifa Center for Law & Technology (HCLT) and the former dean of the University of Haifa, Faculty of Law. She is also a Faculty Associate at the Berkman Center for Internet & Society at Harvard University. Her research focuses on the legal institutions that facilitate private and public control over the production and dissemination of information. She has written and spoken extensively about the privatization of information policy, private ordering, economic analysis of intellectual property, technology transfer and legal strategies for enhancing the public domain. From 2002 to 2006 she was a Member of the Israeli Cinema Commission. She is currently a member of the Patent Authority Audit Commission in Israel, a member of the Academic Directors and Steering Committee of the Jerusalem Center for Ethics, Mishkenot Shaananim, and a co-founder of the Alliance of Israeli Institutions of Higher Education for Promoting Access to Scientific Materials. She is the Chair of the Scientific Advisory Council, of the Alexander von Humboldt Institute for Internet and Society in Berlin, a member of the Executive Committee of Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), and an Advisory Board Member of the Information Program of the Open Society Foundation. Prof. Elkin-Koren received her LL.B from Tel-Aviv University Faculty of Law in 1989, her LL.M from Harvard Law School in 1991, and her S.J.D from Stanford Law School in 1995. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Dr Sabine Jacques, UEA Lecturer in IP/IT/Media Law, spoke on the topic of "The Parody Exception in Copyright Law" at a seminar on 26 April 2018. Sabine Jacques joined UEA in 2016 as Lecturer in IP/IT/Media Law. Previously, Sabine achieved a PhD in copyright law at the University of Nottingham where she studied: ‘The Right to Parody? A comparative analysis’. In this research, she has a specific focus on the music industry as she was partially funded by MPA (Music Publishers Association), BASCA (British Academy of Songwriters, Composers and Authors) and PRS for Music (Performing Right Society). She has now turned her thesis into a monograph for OUP which will be available shortly. Before moving to the UK, Sabine obtained her bachelor and master degrees in law at the University of Liège, Belgium. She later graduated cum laude from an LLM in Intellectual Property law and Knowledge Management at Maastricht University, the Netherlands. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

Professor Litman, John F. Nickoll Professor of Law at the University of Michigan, delivered the thirteenth Annual International Intellectual Property Lecture (funded from the Herchel Smith Bequest) at Emmanuel College entitled 'Copyright and Property-Think' on 13 March 2018 as a guest of CIPIL (the Centre for Intellectual Property and Information Law). Professor Jessica Litman is the John F. Nickoll Professor of Law at the University of Michigan, where she teaches copyright law, trademark law, and advanced IP courses. Litman is the author of Digital Copyright and the co-author, with Jane Ginsburg and Mary Lou Kevlin, of the casebook Trademarks and Unfair Competition Law: Cases and Materials. She is an adviser for the American Law Institute's Restatement of Copyright, and has served as a trustee of the Copyright Society of the USA, and chair of the Association of American Law Schools Section on Intellectual Property. In this year’s lecture, she will argue that when we think about the copyright system, our assumptions about legal property rights shape what we see and what we don’t. We assume that broadening or narrowing the scope of copyright will redound to the benefit or detriment of creators. Three hundred years of evidence, though, belie that supposition. We need to think more concretely about copyright law's actual effect on creators, and their ability to communicate and profit from their works. For more information see the CIPIL website at http://www.cipil.law.cam.ac.uk

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'. This recording features Przemysław Polanski (Kozminski University). The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space. In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017). This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit. For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'. This recording features Nicolo Zingales (University of Sussex). The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space. In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017). This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit. For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'. This recording features Matthias Leistner (LMU Munich). The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space. In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017). This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit. For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'. This recording features Christina Angelopoulos (CIPIL, University of Cambridge). The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space. In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017). This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit. For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference

The Centre for Intellectual Property and Information Law (CIPIL) Annual Spring Conference 2018 was held on 10 May 2018, on the subject of 'Intermediary Liability and Responsibility'. This recording features Daithi Mac Sithigh (Queen’s University Belfast). The creation of open and responsible digital markets is a major policy priority across the globe, linking critically to both economic dynamism and to protecting core societal values in a challenging socio-technological environment. Amongst the most vexed and controversial aspects of this is the multi-faceted issue of ‘intermediary’ liability and responsibility. How active can an information society service be whilst still falling within an intermediary shield (safe harbour)? What potential liability and ongoing responsibilities (or duties of care) should such shielded intermediaries have for potential illegalities on their service? To what extent should the answer to this question depend on the type of intermediary (e.g. host vs conduit) and/or on the type of potential illegality? These are among the questions that are confronting us within this space. In 2016 the European Commission announced that it would seek to complement the approach taken by the e-Commerce Directive (2000/31/EC), developed in the early days of the web, with a new “sectorial, problem-drive approach to regulation” (page 9). This led to the adoption, as a central part of the EU’s Digital Single Market (DSM) strategy, of proposals to regulate certain online platforms in two key areas: those of copyright and child protection and hate speech. The copyright proposal advocates the application of filtering/blocking mechanisms as routine and mandatory measures. The child protection and hate speech proposal places emphasis on platforms proactively adopting a range of measures to manage content, including through their terms and conditions, age verification and reporting/flagging systems. The legislative progress of both proposals is now well advanced. Meanwhile, the soon to be in force General Data Protection Regulation (2016/679) addresses the relationship between the intermediary shields and the responsibilities of both controllers and processors of personal data to safeguard personal information – an aspect of law that has received greater attention following the ground-breaking C-131/12 Google Spain judgment of the Court of Justice on the ‘right to be forgotten’. Finally, thinking in this area has been affected by the case law of the European Court of Human Rights, notably the Grand Chamber judgment of Delfi (2015), which specifically explored the responsibilities of online news platforms for defamatory and hate speech material that interfered with an individual’s right to a private life, as well as the follow-up judgments of MTE v Hungary (2016) and Pihl v Sweden (2017). This year’s one-day conference will provide a unique opportunity to explore where we are in this broad and important area, as well as where we might be going in the future. The morning session will take stock of current law and debate on intermediary liability and responsibility in each of the substantive areas falling under the DSM, whilst also raising critical overarching questions. The afternoon sessions will then focus on specific cross-cutting themes: (i) what should be the reach of notice-based remedies in this area and, in particular, when (if at all) should these extend to filtering/blocking; (ii) should some intermediaries have proactive obligations to respond to illegality; and (iii) what new thinking might be fruitful here, especially for the UK, given the likelihood of an imminent Brexit. For more information, see the CIPIL website: https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-spring-conference