Arbeitspapiere / Fachbereich Rechtswissenschaft, Goethe-Universität = Research paper / Faculty of Law, Goethe University
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2024,1
The Åland Islands archipelago enjoys a special international status sui generis, which essentially encompasses demilitarisation, neutralisation, and autonomy. This status is guaranteed under international law by the agreements of 1921, 1940, and 1947, which are still in force. Furthermore, there are convincing reasons to assume that the Åland Islands regime has grown into European customary law. By virtue of her international (treaty) obligations, Finland cannot unilaterally change this status under the present conditions, irrespective of domestic (constitutional) decisions. While integration into NATO’s collective defence system and the EU’s Common Security and Defence Policy structures is compatible with the special status of the Åland Islands, care must be taken by Finland and her partners to ensure that the obligations arising from these developments are fulfilled in accordance with the demilitarised and neutralised status of the archipelago. This includes that the use by Finnish troops for preventive defence, beyond the exceptions laid down in the 1921 Åland Agreement, is only permitted in the case (of threat) of an immediate and clearly identifiable attack.
The autonomous character of the Åland Islands was established under a League of Nations dispute settlement and implemented, inter alia, in Finnish legislation. Its essence even grew into customary law. The arrangements of 1921, however, do not constitute a bilateral treaty between Finland and Sweden. The UN assumes that the international mechanism to protect Åland’s autonomy did not become obsolete with the demise of the League of Nations, but was only “suspended until such time as an express decision has been taken by the United Nations to put it back into force”. A corresponding proposal could be submitted, in any case, both by Finland and/or Sweden or possibly even by any other UN member state, for discussion in the Sixth Committee. However, the final decision to re-activate this special mechanism would have to be adopted by the UN General Assembly.
EU Law applies to the Åland Islands in principle; however, Finland’s Accession Treaty to the EU to which Protocol No. 2 on the Åland Islands was annexed, established a number of specific rules which are still in force today. This, most notably, results in the limited application of value added tax and excise duties in the Åland Islands. Therefore, the rules on customs procedures apply with respect to the movement of goods to and from the Åland Islands. In addition, other provisions of Union law, in particular those relating to fundamental freedoms and European state aid law, may be relevant in view of the special fiscal status of the Åland Islands. However, assessing individual cases would require further information and in-depth studies. Irrespective of the requirements set out in the said Protocol, the EU is obliged to respect the national identity of Member States pursuant to Article 4 para. 2 TEU; this obligation includes respect for the special status of the Åland Islands under both international and Finnish constitutional law.
2023,2
This article provides an overview of the current state of the regulation of disinformation in the EU. It shows that the concept of disinformation, the purpose of anti-disinformation measures and their content and enforcement can only be understood if a holistic view is taken of private, hybrid-co-regulatory and public-law norms. The delicate field of disinformation is to a large extent dealt with outside of statutory law. The questions raised thereby are largely unresolved.
2023,1
This article provides an overview and critical assessment of WIPO ALERT. It locates this initiative in the broader context of transnational IP enforcement schemes on the Internet. These initiatives are classified into two categories according to their point of attachment and geographical effect. Whereas source-related measures (e.g. website takedowns) tend to have a transnational and possibly even a global effect, recipient-related measures (e.g. website and ad blockings) typically mirror the territorially fragmented IPR landscape. This fragmentation is where WIPO ALERT comes into play. It can be understood as a matching service which interconnects holders of information about copyright infringing websites (“Authorized Contributors”) and actors of the online ad industry who want to avoid these outlets (“Authorized Users”). The critical assessment of WIPO ALERT calls for more transparency and the establishment of uniform substantive and procedural standards that have to be met if a new “site of concern” is added to the global ad blacklist.
2021, 4
This article provides a novel explanation for the global intellectual property (IP) paradox, i.e. the consistent growth of the multilateral IP system in spite of mounting evidence that its effects are at best neutral if not disadvantageous for low-income and most middleincome countries and thus the majority of contracting states. It demonstrates that the multilateral IP system is deliberately structured as a virtual network that exhibits network effects similar to a social media platform, for example. The more members an IP treaty has, the more IP protection acceding states can secure for their nationals. Conversely, every accession enlarges the territory in which nationals of previous members can enjoy protection. Due to these increasing returns to adoption, signing up to and remaining part of the global IP network is attractive, irrespective of the immediate effects of a treaty.
2021, 3
According to the standard account, IPRs allocate objects to owners, just like ownership allocates real property. In this paper, I explain that this simplistic paradigm operates on the basis of three fictions: The first – truly Polanyian – fiction concerns IP subject matter that was originally not produced for sale but created for other purposes, e.g. private pleasure. The second fiction is that IP is treated as a marketable good whereas much IP, in particular works and signs, are embedded in communication. Finally, IP is a fictitious concept in that we speak of works, inventions, and other IP objects as of tangible commodities, where in fact IP objects only exist insofar and because we speak and regulate as if they exist as abstract “goods” of value.
2021, 1
The paper examines the importance of international labour standards for ESG reporting. International labour standards exist today for almost all working conditions. There are many reasons why ESG criteria should be based on these standards. This is already happening to some extent. However, the references to international labor standards should be expanded and the existing references deepened.
2020, 10
This article documents and classifies instances of transnational intellectual property (IP) enforcement and licensing on the Internet with a particular focus on the territorial reach of the respective regimes. Regarding IP enforcement, I show that the bulk of transnational or even global measures is adopted in the context of “voluntary” self-regulation by various intermediaries, namely domain name registrars, access and host providers, search engines, and advertising and payment services. Global IP licensing is, in contrast, less prevalent than one might expect. It is practically limited to freely accessible Open Content, whereas markets for fee-based services remain territorially fragmented. Overall, three layers of IP governance on the Internet can be distinguished. Based on global licenses, Open Content is freely accessible everywhere. Plain IP infringements are equally combatted on a worldwide scale. Territorial fragmentation persists, instead, in the market segment of fee-based services and in hard cases of conflicts of IP laws/rights. All three universal norms (global accessibility, global illegality, global fragmentation) are supported by a quite solid, “rough” global consensus.
2020, 7
On the basis of the economic theory of network effects, this article provides a novel explanation of the so-called patent paradox, i.e. the question why the propensity to patent is so strong when the expected average value of most patents is low. It demonstrates that the patent system of a country resembles a telephone network or a social media platform. Patents are perceived as nodes in a virtual network that, as a whole, exhibits network effects. It is explained why patents are not independent of other patents but that they complement each other in several ways both within and beyond markets and fields of technology, and that patents thus create synchronization value over and above individual interests of patent holders in exclusivity. As a consequence, the more patents there are, the more valuable it is to also seek patents, and vice versa. Since patents thus display increasing returns to adoption, the willingness to pay for the next patent slopes upwards. This explains why, after a phase of early instability and a certain tipping point, many countries’ patent systems expanded quickly and eventually became a rigid standard (“lock-in”). The concluding section raises the question what regulatory measures are suitable to effectively address the ensuing anticommons effects.
2020,6
The long-standing battle between economic nationalism and globalism has again taken center stage in geopolitics. This article applies this dichotomy to the law and policy of international intellectual property (IP). Most commentators see IP as a prime example of globalization. The article challenges this view on several levels. In a nutshell, it claims that economic nationalist concerns about domestic industries and economic development lie at the heart of the global IP system. To support this argument, the article summarizes and categorizes IP policies adopted by selected European countries, the European Union, and the U.S. Section I presents three types of inbound IP policies that aim to foster local economic development and innovation. Section II adds three versions of outbound IP policies that, in contrast, target foreign countries and markets. Concluding section III traces a dialectic virtuous circle of economic nationalist motives leading to global legal structures and identifies the function and legal structure of IP as the reason for the resilience and even dominance of economic nationalist motives in international IP politics. IP concerns exclusive private rights that are territorially limited creatures of (supra-)national statutes. These legal structures make up the economic nationalist DNA of IP.
2018, 3
The article is designed to introduce and analyze authoritarian constitutionalism as an important phenomenon in its own right, not merely a deficient or deviant version of liberal constitutionalism. Therefore it is not adequate to dismiss it as sham or window-dressing. Instead, its crucial features – participation as complicity, power as property and the cult of immediacy – are related to the basic assumption that authoritarian constitutions are texts with a purpose that warrant careful analysis of the domestic and transnational audience.