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Table of Contents
  1. III. Transnational Article 39(1) Practice
  2. Ines Dernedde
  3. e-IPconsult - Patent Attorney Dipl.-Ing. Ralf Bucher

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III. Transnational Article 39(1) Practice

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Im Zuge dieser Forschungen hat sich das Institut u. Academic Prizes and Honours. Personal Links. 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.

Rightholders consistently countered this contention by arguing that, in the absence of adequate protection, they would not place their works online, i. 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.

DOI The claim that the internet has changed everything is a commonplace in blogs and presentations. It is definitely untrue, though, for competition law. If one compares the rules and the application of the rules in Europe in and in it is hard to spot a principal difference that is causally linked to the rise of the internet—apart from the facts of some cases: nowadays, mobile phones are more important than landlines, media houses fight for advertising budget in the net, and big brands force their distributors to polish their virtual stores instead of brick-and-mortar-stores.

So, mainstream competition law has it that a website essentially is nothing but a high-street shop. Ein Ausweg ist, entsprechende Verhaltenskodizes als autonome Setzungen mit Rechtsnormcharakter anzusehen, sie also vertragsrechtlich zu analysieren. Die Rechtswissenschaft ist dann gefordert, die unternehmerischen Selbstverpflichtungen dogmatisch zu durchdringen.

Die zentrale Frage bleibt, wie die Zwangslizenz im Verfahren operationabel gemacht wird.

Ines Dernedde

Der vorliegende Text soll die Diskussion erstens um eine weitere Auswertung der inzwischen ergangenen Folge-Urteile bereichern. Yet, the Court has not yet provided a final answer to the relevant legal questions. Instead, the decision has given a new direction for further developments in this matter — mainly in a competition law driven negotiation approach. A working model for making compulsory licensing operable in ongoing patent disputes still needs further developments by lower courts and the parties involved.

The essay consists of a brief overview of the legal basics of compulsory licensing under antitrust laws II , followed by an examination of the decision focused on its importance for a procedural approach III. The central problems that need to be solved in proceedings are identified IV followed by an introduction to some alternative conflict resolution tools and approaches V.

Throughout, the authors show how lower courts in Germany have so far responded to the Huawei judgment. DOI Market definition is highly relevant in European case practice in competition law. Yet the tools and also the concepts are far from being very sophisticated. The critique of market definition by Richard Markovits is far-reaching: not only is market definition arbitrary, but current approaches also have an in-built bias towards a static snapshot understanding of the economy.

Yet it would be wrong to give up this important step in antitrust analysis, since otherwise antitrust loses its function as the fundamental set of governing rules for markets. Instead, it is necessary to develop a more evolutionary concept of markets. Untersucht wird dazu beispielhaft, wie die Marktabgrenzung vorgenommen wird und inwiefern Daten als wettbewerbsrelevante Faktoren angesehen werden.

DOI Competition law strongly influences the media industry.

e-IPconsult - Patent Attorney Dipl.-Ing. Ralf Bucher

This has come into focus with several notable cases, the deliberations of a Federal Commission on media convergence and the 9th amendment of the German Antitrust Act. Competition law provides effective tools for regulating media issues while enriching the analysis with a competition-oriented perspective. If competition law takes a stronger role this is a chance for open markets and dynamics — in particular since general economic law knows hurdles for regulation.

The authors analyse the impact of the directive in particular with regard to the control of collecting societies. The authors start from acknowledging the privileged position of such institutions and the necessary regulation of privileged firms. They identify principal-agent-problems, deficits in competition and a wide array of interests involved in the rights management. From a fundamental regulatory perspective there are different means to set incentives for collecting societies to improve their work, and some of these means are reflected in the directive.