The Future of Copyright. In memory of Luigi Carlo Ubertazzi (Report 2/2)

And here is the second part of the report about the intense day of study dedicated to the memory of Prof. Luigi Carlo Ubertazzi (first part here), again in a highly simplified version given the very high level of the various speeches/talks.

 

Prof. Marco Ricolfi (who, besides, was also this GuestKat's esteemed professor) gave a learned lecture with many references also from the philosophy of law entitled “IP in the algorithmic society: between metamorphosis and continuity”.

Ricolfi recalled how digital platforms and information giants have objectively created situations of dominance, particularly since 2007 with the advent of the IoT. They produce huge amounts of data, so much so that communications between individuals are only the tip of the iceberg. In any case, what’s even more important for us lawyers and IP practitioners is Big data, machine learning, artificial intelligence (or rather automated decisions), all moving and changing at an extreme speed.

In this context, he recalled that according to classical theory intellectual property has (i) a structural aspect: an incentive for creative innovation as it is potentially public goods and (ii) a functional aspect: it provides innovators with the tools to counteract possible illegal exploitation by third parties. But when the information resource takes the form of data or algorithm or machine learning or AI, balancing is more difficult if not impossible. Data are kept under lock in the cloud and/or otherwise protected by secrecy. The holder no longer needs the balancing the various national legal systems offered to him. Holders are pluripotent. In the given context, Prof. Ricolfi sees the need to revise the classical paradigm of intellectual property not only by calling for the intervention of the legislator, but rather by rediscovering the classical elements of civil and private law:

·       role of the contract;

·       civil tort;

·       collective actions, recalling the importance of Directive 2020/1828.

So what are the evolutionary contours of IP? Perhaps, says Ricolfi, one might think Joseph Schumpeter was right: large oligopolies do not need IP.

 

(A rare picture of Joseph A. Schumpeter explaining why Google and Amazon wouldn’t need IP; 1943/Harvard University Archives)

  

Professor Gustavo Ghidini joined the commemoration and also discussed a work of his, of recent publication "Moral Rights of Authors in the Berne Convention: A Substantive Perspective", in which he suggests the introduction in future versions of copyright legislative acts of a general clause conceived in terms of ‘‘burden of valorization’’ of the work on the part of the publisher at the request of the author (full Italian and English abstract here).

 

Prof. Marco Spolidoro gave a lecture on the very topical subject of NFTs (which this blog recently covered here).

The title of his talk was rather self-explanatory of the speaker's position on the dignity of the institution as it is 'NFT: from the metaverse to catching dummies'.

In a nutshell, the professor's thought is that the use of platforms and blockchain has the main purpose of making rare something that is not rare. It is a service and it is also expensive (in financial and perhaps environmental terms). The professor posed a series of provocative questions with reference to NFTs: Are they a private good? Are they a licence? Is it something akin to feudal law (not only you have to pay a tax if you cross the lord's bridge, but if by chance you die, the prince reabsorbs all rights granted!)? Does it fall under inheritance? What about passwords?

The provocative thought of the professor was that there may currently be many rich bored young people in the metaverse who do not know the history of the evolution of private law and property issues, as a philosophical ethical and legal concept. For now, the situation is OK. If it becomes a social and public order problem the only solutions will be: regulation and the exit of platforms from their self-made safe harbours.

 

Prof. Rosaria Romano underlined how ‘copyright’ has become over the years a tool for providing a legal framework to works that are all but homogeneous but that still present common characteristics. The broadening of the copyright has started with software, proceeded on with databases, and perhaps (she said in relation to the recent case law of the CJEU mentioned in the previous post) industrial design. Uniformity refers to the intrinsic elements of the expressive mode. Alongside these, classes of works have recently emerged that are subject to singular rules dictated by the fact that these works find themselves in certain particular conditions and she mentioned the case of orphan works, out-of-commerce works and journalistic publications.

 

Prof. Alessandro Cogo, having agreed with Mr. Lanteri that at an international level not much is being done to harmonize the law on copyright and to ‘keep pace' with the innovation (albeit he cited the recent introduction of a “data mining exception” in copyright law in Singapore that should be regarded closely) ,stated that Europe is trying to move things forward and that Directive (EU) 2019/790 presents elements of innovation.

In particular stated that new Art. 17 on sharing platforms offered a somewhat unorthodox view, because it seems to break a taboo considering that the issue of providers, at international level, was so far discussed through a mere note to Art. 8 of WIPO Copyright Treaty, stating that providing 'physical facilities' did not amount to communication to the public. The Directive seems to concede that platforms are subjects that share content even if sui generis.

So prof. Cogo underlined that platforms therefore seem now under the focus of:

(a) rights holders who (i) do not want to make content available or (ii) at least want to monetize from them.

(b) users, in particular given that Art. 17.7 seems to put the platforms in the position of earlier “cultural intermediaries”.

 

(Chinese cardinal and “intermediaries” colors, which may always serve as Kat guidance?)

Prof. Andrea Ottolia, in turn, pointed out that the large platforms are true ecosystem-companies that use de facto enforcement measures more effectively than what the national laws would allow them to, becoming new Leviathans that have different systems of protection and make those peculiarities an element of jurisdictional competition. Says Ottolia: an Apple filter did more harm to FB than the GDPR.

Also worth mentioning in this context, Ottolia continued, are the institutes of corporate social responsibility, which in his view are closely related to intellectual property, because the latter was the first ambit of the law in which there was the need to handle the relationship between individual and altruistic interests in the field of innovation. Particularly, strict social responsibility could serve to create a reputational value that incentivises opt-out commons (an example being in this sense the individual choice to allow data mining by the most 'responsible' platforms).

 

That conference was closed by a speech of Prof. Luigi Ubertazzi's daughter, Benedetta Ubertazzi, professor of European Union law, who reminded the audience that actions for cross-border declarations of non-infringement in Italy are often not heard by the lower Courts, despite the decision C-133/12 (Folien Fischer) of the CJEU. She shared the view that when possible the litigation should be concentrated in a single venue and that current rules seem fit for copyright, that contrary to patents and trademarks aren’t registered rights (and for…Italian torpedoes, this Kat would add).