Generis Rights Research Articles

The rise of data property rights in China: how does it compare with the EU data act and what does it mean for digital trade with China?

Abstract In 2022, China introduced a landmark Data Property Rights System, followed by implementation rules in 2023 and 2024. Concurrently, the EU enacted the groundbreaking Data Act. While both systems oppose granting exclusive data access rights, they differ in their approaches: China establishes new property rights for data processors, while the EU imposes obligations on them. By comparing China’s Data Property Rights System with the EU Data Act, this paper aims to elucidate the background, contents, and challenges of the Data Property Rights System in the context of digital trade. It argues that China will address the dilemmas of security risks versus data commercialization by implementing a national negative list for data outflows, qualified by green channels in selected industries. It urges China to adopt a more consistent national approach in implementing Data Intellectual Property Rights, resolve the classification and non-discrimination treatment issues in international trade, and draw lessons from the EU sui generis right. It also suggests that focusing on sharing non-personal data under the China Data Property Right System and the EU Data Act may reshape our understanding of governing non-personal data flows and non-consumer users of data products in Free Trade Agreements.

Civil law regime of objects generated by artificial intelligence

The article is devoted to the civil law aspects of the problems of artificial intelligence and its place in the structure of civil law relations, as well as questions regarding the legal regime of objects generated by artificial intelligence. The approaches expressed in the domestic legal doctrine regarding the understanding of artificial intelligence as an object and as a subject of civil law relations, as well as a point of view regarding the possibility of simultaneously considering artificial intelligence as an object and as a subject of such legal relations, are analyzed. On the basis of approaches to the definition of the concept of «artificial intelligence», which are beginning to be formed at the level of legal acts of the United Nations and the European Union, as well as enshrined in the legislation of Ukraine, it is concluded that artificial intelligence must be considered as an object of civil law relations. In this regard, a critical position has been expressed regarding attempts made at the theoretical level to interpret artificial intelligence or robots endowed with artificial intelligence as subjects equivalent to natural persons, as quasi-legal entities. The main provisions of the Law of Ukraine «On Copyright and Related Rights» on the sui generis right on a non-original object generated by a computer program, which can be considered corresponding concept of «object generated by artificial intelligence», have been analyzed. The features of a non-original object generated by a computer program are singled out as a special type of an object of sui generis right. A position has been expressed regarding the expediency of clarifying the provisions of the Law of Ukraine «On Copyright and Related Rights» in the part of defining the subject of a sui generis right to a non-original object generated by a computer program. It was concluded that objects generated by artificial intelligence can be classified as objects of intellectual property law, within the framework of which their legal protection should be ensured by a special kind of right – sui generis right. The expediency of enshrining the main provisions regarding the sui generis right to an object generated by artificial intelligence in Book 4 of the Civil Code of Ukraine is emphasized.

Blockchain as a database—proposal for a new test for the criterion of ‘independence’ in the legal definition of a database for the purposes of copyright and the sui generis right

Abstract Technology’s exponential growth often outpaces that of the law. The persistence of outdated legal concepts that were not drafted with new technology in mind leads to legal uncertainty. This article focuses on one example of such a friction between old law and new technology, namely the eligibility of blockchain as a‘database’ for protection under the EU Database Directive, as implemented into UK copyright law. The most problematic requirement for blockchain as a candidate is that the material inside the database be ‘independent’. This can pose a significant hurdle for blockchain to succeed as the immutability of blockchain is ensured by the ‘linked-list’ structure in between the blocks and the combinational hashing of data within the individual block. This article examines this issue and proposes a solution to this quandary: to divide the data recorded on a blockchain into ‘content’ and ‘structure’, and confine the criterion of ‘independence’ to the former. In reaching this solution, the author examines previous literature on the different types of data that can be found in databases, as well as how the concept of ‘independence’ is understood by judges and academics. This article will be of practical significance for developers of non-open source blockchain applications who wish to protect their products as a database.

The Right to Scrape Data on the Internet: From the US Case hiQLabs, Inc. v. LinkedIn Corp. to the ChatGPT Scraping Cases: Differences Between US and EU Law

Data scraping is of the essence for generative artificial intelligence (AI), such as ChatGPT, as the data needed for AI training are in most cases obtained by this means. The first litigations regarding data scraping for training of generative AI systems are starting now. It is therefore relevant reviewing the case Law and regulation regarding data scraping, including the United States (US) Court of Appeals of the Ninth Circuit in the hiQ v. LinkedIn case. This case reveals the important differences between the US Law and the European Union (EU) (and United Kingdom (UK)) Law under several points of view: criminal law, privacy/data protection law, intellectual property (IP) rights (and sui generis rights), and even law of contracts. The idea that there is no ownership to unprotected, non-personal, publicly available data coincides with some recent EU Member States rulings. Data scraping is not illicit as such (the Google search engine is always scraping, and has been doing so since its creation), but it needs to respect some criminal law restrictions, privacy or data protection obligations, copyright and contractual Law. This article reviews this protection in both the US and the EU/UK and analyses the impact of the existing data scraping case law in the ChatGPT issues and very recent litigations. Data Scraping, AI, ChatGPT, hiQ v. LinkedIn, Data Protection, GDPR, Intellectual Property

Intellectual Property Protection for Integrated Circuits

The intellectual property (IP) protection of integrated circuits (ICs) is of key importance as the semiconductor industry has become a vital part of the advancement of technology and the development of the global economy. This is made clear by the creation of a special IP sui generis right that is meant to protect the layout design of ICs and make them harder to copy. The present article will present an overview of protection of layout designs of ICs and the experience of leading countries in the production of semiconductors. The countries are chosen based on their patenting activity in field which is an indicator of scientific and financial effort of those nations to develop their IC production capabilities.

What Can Big Data Protection Learn from Trade Secret Protection?

The nature of big data protection remains an enigma. By ‘big data’, we refer to data that are non-copyrightable, non-secret and do not fall into the scope of existing intellectual property laws. Assuming such data do require some sort of protection in order to incentivize investment, what form shall the protection take? Contract law, tort law, unfair competition law or a sui generis intellectual property law? There is no consensus among different jurisdictions. Some jurisdictions follow a property law approach. For example, the EU has been offering sui generis IP protection to databases with Directive 96/9/EC on the Legal Protection of Databases. In contrast, many other jurisdictions choose to follow a non-property law approach. Take the United States for example. A century after International News Service v Associated Press, in which the misappropriation doctrine was used to offer ad hoc protection to hot news, the US still has not introduced a sui generis right. Even though non-copyrightable, non-secret and valuable data do receive some legal protection, the ideal form of protection is yet to be clarified.

The New A(I)rt Movement and Its Copyright Protection: Immoral or E-Moral?

Abstract Artificial intelligence (‘AI’) has left few well-established laws and norms unchallenged, and copyright is not an exception. Nowadays art can be created by algorithms and continental Europe’s copyright law ‒ which inter alia includes Greece ‒ no longer seems fit for purpose, persisting as it does in searching for a human behind each creative outcome. This paper aims to analyse the issues algorithmic generated art brings in terms of copyright protection, and to explain why the current legislation and proposed solutions are inadequate to resolve them. Inspired by a theory already applicable in Germany in certain civil law cases, this paper will then propose a new twofold sui generis right that includes a new, partial e-moral right and a sui generis economic right. The paper will then explain how this proposed sui generis right manages to avoid potential pitfalls from granting legal personhood to AI, while letting humans reap the financial benefits.

Plant selective breeding achievements: legal protection and intellectual property rights

Selective breeding achievement is a result of intellectual activity and at the same time a powerful means of production. Plant breeding and high culture of farming became the economic ground for emergence, development and existence of ancient and today’s civilizations for many centuries. Contribution of plant breeders to tackle the problems of food production and other challenges is always both of economic and political relevance, hence, selective breeding achievements are considered strategic objects. As the population of the planet increases and the need for the environment preservation grows, the role of the breeding activity will play a central role. There is much concern for every country about the balance between the necessity to provide the population with food and sustain biological variety in today’s global world. One of the ways to address the food issues and others is a genetic modification of living organisms including plant variety. Goals of the modern market of crop cultivation are to create adaptive breeds, which are resistant to biotic and abiotic stresses, can secure high and consistent harvest and are suitable for cultivation using resource saving technology, as well as food-supplying, technical and feeding orientation of the developed cultivars. At present, plant variety rights in most developed countries are completely excluded from the scope of patent law and are attributed to sui generis right. The authors’ research on plant variety rights from civil perspective allows for in-depth study of the character of the object.

Protecting Video Game Gameplay Creators: A Two-Pronged Copyright Approach

The video game industry continues to grow into a behemoth, yet the players fueling its rise lack sufficient copyright protection. While the Copyright Act protects video games’ copyrightability as audiovisual works, it lacks clear protection for the gameplay created by gameplay content creators. These secondary creators increasingly build careers out of their gameplay yet lack clear copyright protection over the videos they create because the video game developer typically owns the video game’s exclusive rights over public performance and derivative works. The status quo relies on a “gentleman’s agreement” where video game copyright holders ignore their rights in the copyright and allow gameplay creators to build careers while the copyright holders reap the benefits from the publicity. However, the copyright holders maintain the power to end a gameplay creator’s career by simply enforcing their rights. Several proposals provide workable solutions but fall short of meaningful protection. Most proposals argue stretching the Copyright Act’s existing language to meet the video game industry’s needs while recognizing the Act lacks sufficient language for the industry’s distinctive nature. To overcome the ambiguity in interpreting dated law to a nascent industry, this Note proposes an amendment to the Copyright Act that provides a tailored approach to copyright protection for gameplay creators. This Note first proposes a declaration of non-infringement for a gameplay creator’s videos of their own gameplay from nonlinear video games. This Note secondly proposes the use of a sui generis right that recognizes the significant effort by gameplay creators in creating their gameplay videos and rewards the effort with narrow but sufficient copyright protection over their individual audiovisual creative works. Collectively, this approach alleviates the fear of copyright strikes against the gameplay creators while also allowing them to protect their works against potential infringers.

데이터베이스권에 대한 재검토 - EU 사례(CV-Online vs. Melons) 및 지침의 개정 동향을 중심으로 -

Even in Europe, where database rights(Sui Generis Database Rights) were first created, questions about the utility of these rights have been raised and discussions for revision is going on. We, who benchmarked these European cases at the time, also need to pay attention to the changes in EU. Therefore, in this study, the problems of the database rights were analyzed and future improvement tasks were derived. The results of the s tudy a re a s follows. First, the EU is changing the criteria for judging database rights infringement through the CJEU decision. In order to accommodate the innovation of data, the creation of added value through reuse of users and competitors and the possibility of innovation are accepted as the criteria for judging infringement. We also need to take this into account in our “significant investment” and “determination of infringement”. Second, it is necessary to think about the extension of the exception range of the database right. In Europe, through a separate legislative measure called the Data Act, a wide range of exceptions are being allowed by excluding the database right for databases acquired or created by the use of products or services. This is premised on the premise that the establishment and utilization of databases in various artificial intelligence services, including IoT, is essential anyway, so there is no need to induce investment by guaranteeing sui generis rights. As such, in certain cases, it is necessary to review the introduction of regulations that restrict database rights. Third, like public works, free use of public databases needs to be introduced. Public databases are already trying to create added value through private use through other individual laws. In addition, it is questionable whether the criteria for judging infringement, such as ‘significant investment’ and ‘risk of recovery of investment’, can be applied to the act of creating a database funded by the state finances. Therefore, it is necessary to review the introduction of database rights restrictions on public works.

To Be, or Not to Be … Original Under Copyright Law, That Is (One of) the Main Questions Concerning AI-Produced Works

Abstract This paper will examine whether different types of AI-produced works, namely AI-assisted, AI-generated, and AI-genassisted works, are able to satisfy the originality requirement, as established within the EU copyright acquis. It will argue that even assuming that the choices of AIs can be deemed free, they could not be considered creative due to the anthropological footprint of copyright law which traditionally covers only human creativity. This implies that copyright protection can be granted only to outputs that display a sufficient level of original human intervention, which is most likely present in AI-assisted works and, depending on the case, in AI-genassisted works, too. The desirability of stretching copyright further to accommodate artificial creativity is also lessened by the risk that it could saturate the creative market due to an overexpansion of monopoly rights. Thus, the copyright solution will be evaluated together with some existing alternative legal tools, such as neighbouring rights, sui generis rights, patents, or even the absence of protection over AI-generated works to preserve a robust public domain.

Data mining, sui generis right and aggregators. Some reflections after the judgment of the court of justice of the european union in case CV-Online Latvia v Melons

European Intellectual Property Law provides a special intellectual property (IP) right –the sui generis right– for those database makers that made a substantial investment when creating the database. This IP right is infringed in those cases where the defendant creates a risk that the database maker will lose incomes, thereby depriving that database maker of revenue which should have enabled him to redeem the cost of the investment in setting up and operating the database. However, in recent Melons case, the Court of Justice of the European Union redefines the sui generis right in relation to online aggregators. It highlights the fact that access to information and competition concerns have to enter the sui generis right’s infringement test. It is the first time that this Court balances the interest of the database maker and those of the other parties, as part of the infringement test. We have to keep in mind European caselaw on aggregators and scraping since scraping tools are playing and will play a key role in the development of artificial intelligence

Ownership Of Databases: Personal Data Protection And Intellectual Property Rights On Databases

When we think on initiatives on access to and reuse of data, we must consider both the European Intellectual Property Law and the General Data Protection Regulation (GDPR). The first one provides a special intellectual property (IP) right – the sui generis right – for those makers that made a substantial investment when creating the database, whether it contains personal or non-personal data. That substantial investment can be made by just one person, but, in many cases, it is the result of the activities of many people and/or some undertakings processing and aggregating data. In the modern digital economy, data are being dubbed the ‘new oil’ and the sui generis right might be considered a right to control any access to the database, thus having an undeniable relevance. Besides, there are still important inconsistences between IP Law and the GDPR, which must be removed by the European legislator. The genuine and free consent of the data subject for the use of his/her data must remain the first step of the legal analysis.

ОХОРОНА ПРАВ НА БАЗИ ДАНИХ

The state of legal regulation of databases according to the national legislation and EU laws is discovered. Pursuant to the national legislation, a database is a separate object of copyright – a complex of compositions, data or any other independent information in a freeform, including electronic, the components selection and disposition of which are available individually and can be found with the use of special searching system on electronic devices (computer) or other means. Since database is a complex of compositions, its application shall be carried out with the abidance of copyright on these compositions as the components of a database. If compositions are used with the copyright infringement, legal protection to a database cannot be provided. The author of a database is its creator – a natural person. In the absence of proof to the contrary, the author of a composition (including databases) is a person, indicated as an author on the origin or copy of the composition (presumption of authorship). Database can be created during performance of the work duties or by the errand of the employer. The proprietary rights on the object of copyright and (or) related rights, which was created in connection with performance of the labour contract, belong mutually to the employee, who created such an object and to a legal or natural person, where or who he is working for, if the opposite is not established by a contract (either a labour contract or a separate civil contract). The procedure of performing the proprietary rights on such a database can be regulated by the corresponding contracts. The provisions of the TRIPS, EU Directive on legal protection of databases are analyzed. It is established that original databases are protected as the objects of copyright with the recognition of the corresponding non-property and proprietary rights of its author. Non-original databases are protected by exclusive rights – sui generis. Exclusive rights are guaranteed to the creator of a database irrespective of the eligibility of that database for the protection by copyright or by other rights. Thereby, the Directive permits the protection of a database not only by copyright, but by the sui generis right as well. Consequently, the sui generis right can be spread on the original database, which is an object of copyright. The legislation of Ukraine does not provide the sui generis right to non-original databases for the present. Corresponding provisions are proposed in the draft «On the Copyright and Related Rights». It is proposed to establish personal non-property rights, to define the contents of a proprietary right of the non-original database creator more accurately, determine possible cases of such databases free usage in educational, studying purposes without the aim of commercial usage.

The Many Metamorphoses of Related Rights in EU Copyright Law: Unintended Consequences or Inevitable Developments?

Abstract Neighboring rights have always been neglected by copyright scholars, despite a steady increase of their economic relevance and market role across the decades. The situation has changed in the past two decades when, in response to the epochal shifts to which such rights have been subject, commentators have transferred their focus to the legislative and judicial evolution of neighboring rights. These changes, in fact, have had a substantial impact on the texture of EU copyright law and of the common core of EU Member States’ laws, which may – or may not – represent the beginning of a new era for the relationship between copyright and related rights. To understand the drivers and purpose of the various legislative reforms and the CJEU’s responses in the field, and the challenges they have posed to the consistency and internal balance of the EU copyright system, it is essential to analyze their roots and key features. To this end, this article will offer a brief overview of the legislative path that led from the Rome Convention to the debate preceding the Directive on Copyright in the Digital Single Market (CDSMD), with a focus on the introduction of sui generis rights and ancillary copyright (Section II). It will then comment on the nature and features of the new press publishers’ right under Art. 15 CDSMD, focusing on its strengths and pitfalls (Section III). The statutory analysis will be coupled with a comment on the four ‘waves’ of the CJEU’s judicial practice (Section IV), leading to a brief assessment and conclusions on the way forward (Section V).

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms under the Copyright in the Digital Single Market Directive

Abstract Article 17 of the Copyright in the Digital Single Market Directive is a major internet policy experiment of our decade. The provision fundamentally changes copyright regulation of certain digital platforms. However, the precise nature of Art. 17 is far from clear. How does it fit the existing structure of EU copyright law and doctrine? How can the Member States implement it? These are the questions at the heart of this article. To answer them, we start by examining the nature and structure of the right prescribed in Art. 17. The exact qualification brings important legal consequences. Among others, it determines the conditions imposed by EU and international law on national implementations. After reviewing different interpretation options, we conclude that Art. 17 introduces either a ‘special’ or a ‘new’ sui generis right, both of which allow significant margin of discretion for Member States, especially as regards licensing mechanisms and exceptions.

AI Caravan Moves On. Does It Need Copyright Incentives?

The Article aims to ascertain whether there is a genuine demand for granting copyright incentives with respect to AI-results.At first, the Article analyses whether AI-assisted and AI-generated objects are subject to copyright protection and, drawing onthe anthropocentric nature of copyright, answers in the negative. This conclusion does not apply when AI remains merely a tool in thehands of a human author.Then the Article evaluates arguments for and against the change of copyright law to provide AI with copyright incentives. Giventhe current level of AI, the Article finds granting copyright incentives and, consequently, protection to AI-assisted and AI-generatedobjects as premature and unjustified, at least now.The Article shifts the discussion on incentives from copyright to sui generis right. Such regime is expected to encourage deve -lopment of the AI industry as well as disincentivize unfair practices.

How to License Article 17? Exploring the Implementation Options for the New EU Rules on Content-Sharing Platforms

How can the EU Member States license Article 17 of the new Directive on copyright and related rights in the Digital Single Market? This is the central question that this paper addresses. To answer it, we first analyse the nature of the right included in Article 17. We argue that the nature of the right has a number of serious consequences for its licensing. First, it determines whether the right is mandated by public international law, and hence what licensing modalities are allowed under the 1994 WTO TRIPS Agreement and 1996 WIPO treaties. Second, it clarifies what other conditions European Union law itself imposes on the newly established right and its implementation into national law. These restraints shape the margin of discretion of EU Member States. Third, it may imply changes to existing licensing practices, including the need for collective rights management organisations to obtain new mandates. Fourth, it influences how Member States can incorporate users’ rights into the legal framework. We argue that Article 17 is a special or sui generis right. We identify how this right fits the existing international and EU law, and explain why the Member States have a broad margin of discretion when implementing the corresponding licensing regimes. Perhaps most importantly, and counter-intuitively, we show that the legal arguments against Article 17 licensing via modalities of statutory licensing and mandatory collective management schemes are weaker than one might initially think.

An overview of intellectual property within agricultural biotechnology in Brazil

Brazilian agricultural biotechnology has seen great advances in recent decades, especially in the development of GM crops, including soybean, cotton, and maize, which has placed Brazil in second place since 2013 in the ranking of countries with the greatest GM-cultivated area. However, patenting these technologies is somewhat more restrictive in Brazil than in other countries, such as the USA and Japan, especially concerning isolated biological material from nature. Hence, the intellectual protection of crops in Brazil is encompassed by sui generis rights and/or the patenting of only the development process. Given the current scenario and the importance of biotechnology for the Brazilian agriculture sector, it is necessary to deeply study the patent system for recently developed technologies to identify opportunities for enterprises and national institutes to act in this area. The application of novel biotechnological strategies to agriculture will contribute to the expanding agriculture sector and become part of the solution to global challenges. Through this study, we can identify the major companies developing and protecting their agrobiotechnologies. Additionally, a more detailed analysis verifies that although there are some restrictions in Brazilian laws, GM patent applicants find ways to obtain intellectual protection for the tools they use in the development of GM crops, which include regulatory sequences, gene constructs and production methodologies. Mechanisms to stimulate investment in Brazilian research companies and public policies must be consolidated, allowing investment and public–private partnerships in this sector, with the aim of applying biotechnological knowledge and turn it into products demanded by society.

Big Data and the EU Database Directive 96/9/EC: Current Law and Potential for Reform

The recent discussion of the function and relevance of the European Database Directive’s sui generis right for database makers for the European data economy has been characterized by the assumption that in most big data situations the crucial condition of a ‘substantial investment’ will not be fulfilled. While it has to be admitted that the details of drawing the thin red line between investments into obtaining data and investments into the creation of data have remained contentious, by contrast, the sweeping conclusion that all sensor or other machine-generated data will typically not be covered by the sui generis right is not warranted. In a first step, this paper reveals that the sui generis right will provide relevant exclusive protection to the database maker in many big data use situations. Secondly, this paper analyzes what modifications are required for adapting the protection of databases to the digital age.