Table of Contents

The Commodification of Internet Intermediary Safe Harbors: Avoiding Premature Harmonization Around a Suboptimal Standard

Seth Ericsson, Max Planck Institute for Innovation and Competition, MIPLC

Control Mechanisms for CRM Systems and Competition Law

Reto Hilty, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich
Tao Li, Max Planck Institute for Innovation and Competition

Data Mobility at the Intersection of Data, Trade Secret Protection and the Mobility of Employees in the Digital Economy

Gintare Surblyte, Max Planck Institute for Innovation and Competition

Patentability of Pharmaceutical Inventions Under TRIPS: Domestic Court Practice As a Test for International Policy Space

Henning Grosse Ruse-Khan, University of Cambridge - Faculty of Law, Max Planck Institute for Innovation and Competition
Roberto Romandini, Max Planck Institute for Innovation and Competition

Brand Symbols, the Consumer, and the Internet

Annette Kur, Max Planck Institute for Innovation and Competition


MAX PLANCK INSTITUTE FOR INNOVATION & COMPETITION
RESEARCH PAPER SERIES

"The Commodification of Internet Intermediary Safe Harbors: Avoiding Premature Harmonization Around a Suboptimal Standard" Free Download
In: TRIPS plus 20 : from trade rules to market principles, Hanns Ullrich, Reto M. Hilty, Matthias Lamping, Josef Drexl, editors, Springer, 2016, pp. 245-277
Max Planck Institute for Innovation & Competition Research Paper No. 16-05

SETH ERICSSON, Max Planck Institute for Innovation and Competition, MIPLC
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20 years after the initial wave of national and international activity outlining the role of copyright within the world’s first digital communications policy, the contours of a few fundamental policy principles at the intersection of copyright law and Internet regulation have begun to take shape. This paper focusses its attention on the continuing development of one such principle: The premise that legislatively mandated limitations on internet intermediary liability with regard to third party acts of copyright infringement (so-called safe harbors) are required to promote investment and innovation in Internet-related infrastructure and technology in order to achieve the goal of a robust public information environment.

In the early days of the Internet, internet intermediaries argued that without certain limitations on their liability, little-to-no investment in the nascent information infrastructure would occur, i.e. there would be no market creation. Rightholders consistently countered this contention by arguing that, in the absence of adequate protection, they would not place their works online, i.e. there would be no goods on the market. Safe harbors were seen as a mechanism for ensuring right holder safety in the online environment without discouraging rapid market creation or hindering the democratic potential of the Internet. For the initial phase of the digital era, this compromise worked rather well.

This paper demonstrates that, while consensus may be found regarding the basic premise of this precept and perhaps even with regard to specific aspects of its implementation, there is certainly nothing approaching universal understanding on how to best effectuate the policy goal. The reasons for this disagreement are manifold and rather comprehensible. The rapidly evolving technological landscape, the differing national and regional approaches to the regulation of the Internet, and the diverse legal and cultural environments all combine to make arrival at a globally appropriate safe harbor regime very challenging.

Recognizing the obstacles to harmonization in this field is particularly relevant considering the ongoing attempts of the US to convince its trade partners to adopt a safe harbor framework largely equivalent to, and in certain respects likely narrower than, that which is laid out in the Digital Millennium Copyright Act (DMCA-plus). This paper argues that while harmonization may seem attractive given the international nature and overall importance of the Internet, standardization based upon an intricate and outdated internet safe harbor regime originally tailored to fit the needs of US industry is suboptimally configured for the digital communications policy requirements of the entire world.

"Control Mechanisms for CRM Systems and Competition Law" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 16-04

RETO HILTY, Max Planck Institute for Innovation and Competition, University of Zurich, Ludwig Maximilian University of Munich
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TAO LI, Max Planck Institute for Innovation and Competition
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There are basically two different mechanisms to control collective management organizations (CMOs), namely the general competition-law approach and the sector-specific regulation approach. This chapter explains the features of copyright management (CRM) systems in general and discusses up- and downsides of both approaches. In conclusion it suggests a primary focus on sector-specific regulation. This approach not only takes into account the particularities of two-sided markets in which CMOs act as intermediaries, but also allows the balancing of non-economic values and interests which are among the objectives of CMOs. Sector-specific regulation is further capable of addressing governance issues of CMOs; above all, it promotes transparency for both right holders and users by providing ex ante guidance. General competition law, in contrast, applies ex post and is particularly likely to become a last resort to control CMOs.

"Data Mobility at the Intersection of Data, Trade Secret Protection and the Mobility of Employees in the Digital Economy" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 16-03

GINTARE SURBLYTE, Max Planck Institute for Innovation and Competition
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The technological tools that are available in the digital economy have expanded the possibilities of private companies to collect online data. In fact, many business models online depend on the processing of data. Yet, the myriads of data flowing on the Internet first of all raise the need to categorize different types of data (e.g. personal v. non-personal). The latter is important not only in terms of the scope of their legal protection, but also for the intersection of data and trade secrets. Clarifying the relationship between data and trade secret protection may be, in particular, relevant in the digital multi-sided platforms, the functioning of which is based on the flow of data. If access to data is hindered by claiming that particular information is covered by a trade secret, platform competition could be affected. Indeed, the dispute whether the employer can claim the credentials of a social media account as a trade secret in case of a departing employee arose in PhoneDog v. Kravitz. Although the case was decided in the U.S., the problem of access to digital data is not limited to a particular jurisdiction. The question, which needs to be analyzed deeper, is what effects trade secrets may have on access to data in the digital economy and what solutions could be provided for preserving both data flow on the Internet and employee mobility.

"Patentability of Pharmaceutical Inventions Under TRIPS: Domestic Court Practice As a Test for International Policy Space" Free Download
Max Planck Institute for Innovation & Competition Research Paper No. 16-02
Mercurio Bryan (Ed.), Contemporary Issues in Pharmaceutical Patent Law (Routledge Research in Intellectual Property) 2016, Forthcoming

HENNING GROSSE RUSE-KHAN, University of Cambridge - Faculty of Law, Max Planck Institute for Innovation and Competition
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ROBERTO ROMANDINI, Max Planck Institute for Innovation and Competition
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This article examines the leeway the TRIPS Agreement grants to WTO Members to define their own standard of patentability in the field of pharmaceutical inventions. To this end, the contribution adopts an anecdotal approach: instead of abstractly analyzing the boundaries set by Article 27 TRIPS, it takes up specific questions related to patentability raised before national judges where the TRIPS consistency of a domestic practice or interpretation has been an issue. In this context, this article answers the questions whether or not Article 27 TRIPS allows for (i) denying composition claims for naturally occurring substances; (ii) ruling out absolute product protection in all or specific technical fields, and excluding from patent protection (iii) new forms of known substances when they do not show an improvement in known efficacy and (iv) new uses of known substances. The conclusions drawn on the above-mentioned issues are relevant for several reasons. De lege lata, they will outline the interpretative leeway national judges enjoy when applying their domestic patent laws. De lege ferenda, they will serve as examples for the flexibility WTO members have in reforming internal legislation to pursue specific national policy in the field of public health and pharmaceutical innovation. One might add that just because the TRIPS Agreement grants a specific flexibility to WTO members does not mean that in all instances it is sound policy to make use of it, or use it in a particular way. Whether and when this is the case depends on the aims and the context of a possible reform of the domestic legislation. A last section hence explores possible purposes and effects of some of the measures addressed.

"Brand Symbols, the Consumer, and the Internet" Free Download
Conference volume "NZCIEL workshop at Wellington, New Zealand, 19-20 February 2015", Forthcoming
Max Planck Institute for Innovation & Competition Research Paper No. 16-01

ANNETTE KUR, Max Planck Institute for Innovation and Competition
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The article gives an overview on the way in which trade marks – or rather: brand symbols – operate in the internet environment. Referring to interdisciplinary research in psychology and neuroscience it is shown how the soft coercive power of brands and the spell they tend to cast over the mind and actions of consumers is reinforced in the digital age where the exposure of consumers to commercial messages is massively enhanced due to the pervasiveness of the internet. Before that background, the article summarizes the legal issues that so far have been in the foreground of practice and scholarly discussions regarding trademarks and the internet. It is posited that those issues as well should be resolved in the light of the larger picture involving the psychological, sociological and cultural dimensions of the use of brands in the digital age.

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