[Event Report] IFIM Holiday Seminar - Tales of the New Doctors of Law

December brought another fascinating conference, this time organised by the Institute of Intellectual Property and Market Law (Institutet för immaterialrätt och marknadsrätt) of Stockholm University, which has a tradition of inviting junior academics and lawyers to speak in its annual Holiday seminar. The 2020 seminar featured researchers who successfully defended their PhD theses in 2020: David Johansson (Uppsala Universitet), Tito Rendas (Universidade Católica Portuguesa) and Giulia Priora (Sant'Anna School of Advanced Studies Pisa), with commentary provided by Jan Rosén and fellow Kats Frantzeska Papadopoulou and Eleonora Rosati.

If your interest has been piqued, you can watch the full IFIM seminar on YouTube here with the commentary (not covered in this event report).

David Johansson - ‘Damage and Compensation in an IP context’

Looking at the relationship between the the economic damage caused in an IP context and the compensation received (which often is never the same thing), David began by setting out a number of different illustrations of the relationship between the two. Turning to Article 13 of Directive 2004/48 (the Enforcement Directive), David similarly emphasised its minimal level of harmonisation, due to the broad definition afforded to terms and how the provision went beyond the strict definition of damage in its reference to lump sums, and how the options for compensation offered under Article 13(1)(a) and (b) were not as different as one would anticipate. To this end, David examined the CJEU’s ruling in C-367/15 OTK, which found that a lump sum could be requested of the person who infringed the right without them having to prove the actual loss). He also noted the Court’s discussion of punitive damages - or rather non-discussion - and how payment of compensation was to be considered with regards to whether it would constitute an abuse of rights.

Using the example of the Swedish Trademark Act (Chapter 8, Article 4) as well as Article 13, David noted that the law in practice does not just look at the strict definition of damage. To this end, he concluded that, when looking at what factors should be taken into account, one should look at both traditional and contextual aspects, and go beyond the strict notion of actual economic damage to consider the overall picture of what compensation is and what it should be.

David's thesis monograph is currently sold out, but you can find further information here.

Tito Rendas - ‘Exceptions in EU Copyright Law: In search of a balance between flexibility and legal certainty’

Looking at the exceptions and limitations under Article 5 of the InfoSoc Directive, Tito began by noting that, whilst there have been disagreements on whether this Article should be reformed, it was clear that  EU copyright law and the exceptions should maintain a balance between flexibility and legal certainty. To this end, he noted that each of the concepts encapsulated two distinct legal policy objectives that InfoSoc should strive to achieve - namely: adaptability to tech change and adaptability to national cultures; and guidance on legal status of uses and harmonisation of national laws respectively.

Analysing each of these in turn, it was noted that adaptability to technological change has been hampered by limited Member State freedom to legislate and a dependency on the EU legislator. Guidance on legal status (whilst being relatively precise) had been blurred by the need to apply the three-step test as a second tier of scrutiny, as well as the construal of the exceptions by courts at EU and national level in a creative way, or through use of emergency doctrinal valves. Further, whilst it was noted that InfoSoc achieved the adaptability to national cultures objective generally well (due to the optional nature of the exceptions, the range provided for, and the grandfather clause), harmonisation had by consequence been overlooked, causing problems for agents operating over borders.

To this end, Tito set out that, in order to achieve a compromise between these goals, Article 5 of the InfoSoc Directive should be restructured as a multi-tiered framework: Tier 1 being a closed catalogue of precise and mandatory exceptions for recurring uses with internal market impact (which occur regardless of technological changes and can be identified in advance, such as private copying); Tier 2 being a quasi-closed catalogue of optional exceptions reflecting the traditions of Member States (lacking cross-border relevance, and so not mandatory, but still upholding the benefits of the existing framework); and Tier 3 being a residual balancing test, empowering courts to accommodate unenumerated uses (to act as a safety net for unforeseen uses, and existing as a CJEU-made balancing test, using criteria with pedigree in the case law of the CJEU, and not relying on the “hopelessly inconsistent” three-step test). 

Tito concluded by noting that the DSM Directive (Directive 2019/790) was a missed chance to achieve this, and whilst his Article 5 reform was politically infeasible at present, he hoped it would influence future thinking on the topic.

You can pre-order Tito's thesis title here.

Giulia Priora - ‘EU Copyright Law and Distributive Justice: A Forgotten Legacy?’

Giulia began by noting how distributive justice could be an entry point to see how copyright law is evolving and how the future of copyright law can be shaped. However, whilst this was not a new topic of consideration, it was worth questioning whether this was of timely relevance for EU copyright law.

To this end, Giulia pointed out that distributive justice was possible to trace following the ‘digital shift’ in EU Copyright policymaking “towards a European, modern, and fair digital copyright environment” in 2009, and how distributive fairness could be traced in relation to 3 points: fair distribution of copyright revenues amongst right holders; fair distribution of copyright revenues between right holders and intermediaries; and fair distribution of copyright materials (cultural and informational goods) between right holders and users, which Giulia identified in relation to the DSM Directive (Directive 2019/790) [note: her thesis looked at this in the full extent of EU copyright law.]

Giulia then turned to the question of whether EU copyright law could reach a fairer distribution of resources in society and whether the future EU copyright law should aim to do so. In this regard, she acknowledged that there were limitations - the ‘concealed’ nature of distributive justice meant that it as a concept is generally unspoken, and would be unlikely to replace traditional copyright justifications. Similarly, it was intrinsically limited (whilst the concept talks of how content is and should be distributed, it did not address how the content existed in the first place), with it further hindered by practical issues of heterogeneous resources, and that they would not always be interchangeable.

However, turning to the opportunities, Giulia identified that there would be possibilities for ensuring fair distribution of copyright revenues within co-authorship scenarios; a more consistent definition of what is parasitism and what is free-riding; and even so far as to apply distributive justice in the context of critical non-commercial uses.

Giulia concluded by noting that we are heading towards a EU fairer distribution of copyright resources, but it is something to continue to explore in way of innovation and modernisation of copyright law.

Giulia's thesis has yet to be published, but keep an eye out for it in the future!

Comment

A big thank you to the speakers for their intriguing insights into their thesis topics! And look out for future IFIM events going forward!