data it law November 2016: out-of-print books and responsibility for user-generated content

The overview of interesting Data & IT Law articles and news in November 2016!

Out-of-print books in EU – the ECJ decision

The Court of Justice of the European Union had issued a decision in Soulier and Doke case C-301/15. The IP Kitten covered the implications of the case for out-of-print books in the EU.

French legislation “vested approved collecting societies with the right to authorise the reproduction and the representation in digital form of out-of-print books, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice subject to certain conditions.“ The Court analyzed whether French legislation violated EU law.

The Court held that “legislation does not appear to offer a mechanism ensuring that authors are actually and individually informed. Therefore, it is not inconceivable that some of the authors concerned are not, in reality, even aware of the envisaged use of their works and, therefore, that they are not able to adopt a position, one way or the other, on it. In those circumstances, a mere lack of opposition on their part cannot be regarded as the expression of their implicit consent to that use.”

In the end, the author argues that “CJEU decision does not necessarily mean the end for all these sorts of initiatives – whether at the national or EU levels. However, what is (now?) required is a more careful approach by relevant legislators to ensure that the principles established at the level of the InfoSoc Directive and elaborated further in yesterday’s CJEU decision are fully respected.”

The responsibility of a website operator for user-generated content – another US case

The authors at Sociallyawareblog.com had addressed the issue of the responsibility of a website provider for a user-generated content. They analyzed a recent case Kimzey v Yelp.

The user Sarah K posted several negative comments about Kimzey and rated Kimzey one out of five stars in Yelp’s star rating system. Kimzey sued Yelp for publishing such libelous statements on its website.

The court held that “because Yelp’s star rating system is based entirely on user input and merely “reduces this information into a single, aggregate metric,” the star ratings cannot be “anything other than user-generated data” within the scope of the Section 230 immunity (…) (T)he mere fact that an interactive computer service classifies user characteristics and collects responses to questions does not transform it into a developer of the underlying misinformation.”

The article also refers to several other similar cases for further analysis.

A story about a soft opt-in strategy how to get an email address for email marketing

At informationrightsandwrongs.com, the author published an interesting article about an experience with electronic receipts.

The story started when author paid for a replacement headlamp bulb and then was asked: “Can I just have your email address to send the receipt?” The author declined. The reason was that UK privacy regulation outlaws “the sending of unsolicited email marketing to individuals, unless the recipient has previously consented to receive the marketing (…) However, email marketing can be sent if the sender has obtained the recipient’s email address “in the course of the sale or negotiations for the sale of a product or service to that recipient”.”

Therefore, the author argued that the real reason for getting the email address might have been getting the email for email marketing purposes. Accordingly, the author argues that anyone should be aware of this practice.

Finally, there are more qualifications to be met: “(T)he marketing must be in respect of “similar products and services only”, and, crucially, at the point when the contact details are collected, the intended recipient must be given the chance to say “no” to the marketing.”

Mergers & Acquisitions and Intellectual Property Law – the check list of issues

JD Supra published an article that gives a general overview of intellectual property law issues that must be addressed in the merger & acquisition transaction. The article is based on US law, but its principles can be applied in other countries too.

The issues include:

• “identify the intellectual property
• ownership of IP
• employee and contractor rights
• liens and encumbrances
• licensed IP
• license assignability
• infringement
• IP validity
• Open source software
• Transfer documents/filings and trademark assignments”