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2013. No. Annual review
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3–9
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Lloyd Ian - Senior research fellow in the Institute for Law and the Web (iLaws) within the University of South- ampton. Address: University of Southampton, United Kingdom. E-mail: I.Lloyd@soton.ac.uk. The telecommunications sector has undergone massive changes in the past 30 years. We have moved from an era where access to at least private telecommunications was the preserve of the minority to the situation today where the mobile phone is an almost omnipresent utility. As an ITU Working Paper states, 'The Future is Mobile'. The shift from landline to mobile technology raises many issues but more recent developments pose even more significant challenges to established forms of regulation. The twenty first century has seen the emergence of, so called, 'over the top (OTT) services such as SKYPE in the field of voice communications and What not' in the area of text messaging. These services are attaining larger and larger market shares and yet their status in terms of traditional forms of communications regulation is uncertain. It is unclear how such services can or should be regulated by national agencies. Linked in some respects is the notion of net neutrality. This has been seen as one of the corner stones of the Internet. It requires that all forms of traffic, whether voice, data or video be treated equally by network providers. But some forms of communication require more bandwidth than others. The question whether new business models might legitimately emerge to focus on and offer preferential treatment to certain forms of communications does need to be addressed as a matter of urgency. The electronic communications sector is living in interesting times. Old models are broken but what can replace them?
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10–21
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Lattová Silvia - Postgraduate (doctoral) student at the Faculty of Law at Masaryk University, Veveří 70, 611 80 Brno, Czech Republic .Address: Tomášikova 50/E, 831 03 Bratislava, Slovak Republic. E-mail: sisa.lattova@gmail.com
In this paper I would like to briefly address the legal regulation of computer programs in Slovak legal acts, the current problems relating to computer program regulation and their possible future resolutions. Computer programs as subjects of intellectual property rights are a quickly developing area which needs to be protected by relevant legal acts. The balance between computer program authors' and users' rights is an issue facing our society today. Therefore, we must consider proper protection of authors' rights, while taking into account authorised users' access to computer programs. The latest copyright law amendment, which came into force at the beginning of November 2013,brings positive and important changes to Slovakia's intellectual property law. This amendment demands change from the current Slovak legislation related to intellectual property rights because it reflects developments in the field of cyber law over the last few years. This amendment aims to bring balance to protecting authors' and users' rights. It is beyond the scope of this paper to offer sufficient solutions for many questions arising in the field of intellectual property rights in connection with computer programs. Instead, I focus on illustrating, generally and theoretically, the protection of computer programs as subjects of intellectual property rights. |
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22–35
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Kalyatin Vitaly - Senior research fellow at the Higher School of Economics’ Educational and Research Laboratory for Information Law; Professor at the Russian School of Private Law, Candidate of Legal Sciences. Address: 20 Myasnitskaya str., Moscow, 101000, Russian Federation. E-mail: kalvit@yandex.ru. This article is devoted to digital rights management, a recent addition to the field of copyright. The introduction of legal measures which protect digital rights management has provided right holders with a powerful tool, with which to control the use of their creative output. At the same time, the use of such measures threatens freedom of information, because, in certain instances, it allows right holders to limit access to works accessible in the public domain. Right holders' use of contracts as instruments which can help circumvent the legally prescribed free use of intellectual property outputs presents a significant problem. This affects both commercial users of intellectual property and generators of corresponding software and hardware. While the 1996 World Intellectual Property Organisation (WIPO) copyright treaty focused on the circumvention of digital rights management, the European Union directive focuses on the circumvention processes at the preparation stages of digital rights management. This focus not only threatens businesses creating products, the use of which may lead to access of a corresponding work, but also limits users' activity, which is not directly related to the violation of copyright. Consequently, the effectiveness of this arrangement and its future prospects depend on, among other things, the degree of consideration assigned to public interests, foreseen limitations, the nature of coordinating the specifications of digital rights management and the provision of information protection for users, as well as a number of other conditions. This article analyses the ways in which different countries approach digital rights management and considers the development of corresponding Russian legislation. The author concludes that we are in the midst of witnessing the creation of a new and unique regulatory regime, which will be founded using new approaches, including the stipulation of conditions for access to copyrighted works, access to information relating to copyrighted works, the allocation of responsibility, etc. |
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36–45
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Nurullaev Ruslan - Legal counsel,Yandex LLC. Address:16, Leo Tolstoy St., Moscow 119021, Russian Federation. E-mail: rusnur@gmail.com. On 2 July 2013, the Russian legislature adopted the first Russian law which specifically addresses the issue of online copyright enforcement (Anti-piracy Law). The new Anti-piracy Law introduced three groups of legal mechanisms aimed at preventing online copyright infringements: (1) a website blocking regime, (2) liability of information intermediaries, and (3) safe harbors for information intermediaries. (1) Under the new website blocking regime, a person who owns the rights to a film can apply to the Moscow City Court for an interim injunction in order to force Internet service providers to remove infringing content or block access to a website, which is allegedly involved in copyright infringing activity. (2) The Anti-piracy Law introduces the legal term "information intermediary" without providing a clear definition. Instead, the law identifies several types of activity which could make a person an "information intermediary": transmission of content over the Internet; content hosting; offering access to content made available online; and hosting of information which is necessary to access content online. (3) Some of these information intermediaries are able to claim safe harbors if they comply with certain requirements. These mechanisms are similar to copyright enforcement frameworks contained in the Digital Millennium Copyright Act and E-Commerce Directive. However, the Anti-piracy Law represents one of the first steps toward Internet copyright enforcement in the Russian Federation. |
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46–52
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Moore Roksana - Lecturer in Information technology and Intellectual property law at University of Southampton. Address: the University of Southampton, Great Britain. E-mail: roksana.moore@gmail.com. Recognition of the need for software liability and suitable legislation is not new, with the Computer (Compensation for Damage) Bill 1990 demonstrating an early attempt to legislate. Almost 25 years later and the UK has taken its most decisive step forwards to date in the form of the Consumer Rights Bill (CRB) 2013. The draft CRB forms part of a wider initiative intended to clarify consumer rights within the digital age. This includes the Consumer Rights Directive, and clear ambitions to enhance cross-border trade by establishing a Common European Sales law. Whilst the aim of the initiative is to provide greater harmonisation and certainty for consumers in alignment with a digital single market, this paper will evaluate whether the draft CRB is suitable to deal with the intended challenges or whether further legislation will be required. |
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53–63
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Graef Inge - PhD fellow Research Foundation — Flanders (FWO), Interdisciplinary Centre for Law and ICT (ICRI) — iMinds — KU Leuven, Belgium.
Verschakelen Jeroen - Legal Researcher, Interdisciplinary Centre for Law and ICT (ICRI) — iMinds — KU Leuven, Belgium.
Valcke Peggy - Research professor’s Interdisciplinary Centre for Law and ICT (ICRI) — iMinds — KU Leuven, Belgium; Visiting Professor University of Tilburg; lecturer media and communications law University of Brussels (HU Brussel’s) and Florence School of Regulation (European University Institute). This article explores the scope of application and possible implementation of the right to data portability as introduced in the proposal for a General Data Protection Regulation. In October 2013, the European Parliament adopted amendments to the proposal that originally had been submitted by the European Commission in January 2012. Although some of these amendments also targeted the right to data portability, the principles underlying this right as proposed by the Commission are still intact. The right to data portability consists of two aspects: the right to obtain a copy of personal data that has been provided by the data subject and the right to transfer this data directly from controller to controller. Attention is particularly paid to the second aspect that entitles data subjects to ask their controller to transmit their data directly to another controller without any additional action on their part. Furthermore, the potential effect of the right to data portability is analyzed from a competition law perspective. In this regard, attention is paid to the question whether the proposed right could remedy user lock-in in online services, such as social networks.A comparison will be made between competition enforcement and the imposition of regulation for facilitating data portability. Regulation applies generally, while competition enforcement is more flexible and may only take place in specific situations. Depending on the factual circumstances, restrictions on data portability may qualify as abuse of a dominant position under Article 102 of the Treaty on the Functioning of the European Union. |
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64–80
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Reeta Sony A.L - National Law University, New Delhi, India. E-mail:reeta.sony@nludelhi.ac.in.
Sri Krishna Deva Rao - Professor, National Law University, New Delhi, India. E-mail: psrikrishnadevarao@gmail.com.
Bhukya Devi Prasad - Council of Scientific and Industrial Research, New Delhi, India. E-mail: bdeviprasad@csir.res.in. Cloud computing refers to anything that involves delivering hosted services over the Internet. It is fast, cheap, flexible and elastic in nature. In spite of its benefits, cloud computing raises risks for data protection and privacy. One key issue presented by cloud computing is the fact that it changes our thinking of what we consider to be "our data" Data is no longer physically stored on a specific set of computers or servers, but is rather geographically distributed. The globalised nature of cloud computing poses a challenge for personal data protection, which requires a clear location for personal data, an identification of the processor and a responsible individual for data processing. Cloud data can be misused and/or shared with third parties without prior knowledge or consent of the data owner. The direct participation of an individual in transborder data transfer, third party participation in data storage, the processing and transmission of dataand, finally, negligence of data protection due diligence from cloud service providers, makes data protection and privacy laws more relevant. The recent PRISM surveillance programme scandal at the US National Security Agency (NSA) demonstrated the privacy risks that citizens around the world take on when their personal information is stored and processed in the cloud. This situation requires awell-established techno-legal solution along international standards. India, unlike the European Union, has no dedicated regulatory framework to deal with privacy and personal data protection. Although cloud computing is still in its initial stages in India, existing laws for people who are currently using facilities offeredby cloud service providers are extremely inadequate. However, cloud computing requires legal protection in India under the country's data protection laws, privacy laws and data breach laws, which must meet "international standards'! It is the right time for the Indian government to enact appropriate regulatory frameworks to protect personal data and privacy in the cloud era. The overall objective of this paper is to understand the impact of cloud computing on privacy and personal data protection and to analyse present legal frameworks governing privacy and personal data protection in India and Europe. |
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81–91
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Reeta Sony A.L - National Law University, New Delhi, India. E-mail:reeta.sony@nludelhi.ac.in.
Sri Krishna Deva Rao - Professor, National Law University, New Delhi, India. E-mail: psrikrishnadevarao@gmail.com.
Bhukya Devi Prasad - Council of Scientific and Industrial Research, New Delhi, India. E-mail: bdeviprasad@csir.res.in.
The world has become more Information Technology (IT) dependent. It is converting all aspects of our lives into invisible data. The tremendous worldwide growth of this electronic format data has caused a demand for data storage and processing power, with cloud computing emerging as an important option. Cloud computing is not a new technology, just the most recent technological development. Cloud computing is Internet-based computing, where data storage and processing take place over the internet. The very basic nature of the Internet and new features of cloud computing, such as the geographical distribution of data (multiple jurisdictions, multiple copies of data), the lack of physical access to the server (remote server),and the absence of transparency in data processing (lack of control), raise new legal challenges in understanding how to apply the law in relation to data protection in this multi-jurisdictional environment. The Google Navy and Pirate Bay's flying drones are redefining the concept of cloud computing by planning to host their data centers in the sea and in the air. They are utilizing the sea and air as their territory because they are beyond nation-state control and no jurisdiction applies to these territories' free data centers. This development necessitates the provision of international law and international technology, which will provide a neutral interconnected system for data protection. This research paper assesses the impact of cloud computing on data protection and tries to highlight the jurisdictional issues from a legal point of view. |
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92–97
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Tereshchenko Ludmila - Leading research fellow at the Higher School of Economics’ Educational and Research Laboratory for Information Law; Professor of Legal Sciences, Doctor of Law. Address: 20 Myasnitskaya str., Moscow, 101000, Russian Federation. E-mail: tereshchenko@post.ru This article analyses issues relevant to the provision of governmental services using information and communication technologies at both national and intergovernmental levels. It considers the coordination problems facing state agencies that offer governmental and municipal services, including the need for universal technological solutions and coordination of information systems. This article also examines the experiences of trans-border electronic public service provision across European Union countries and considers solutions to the problem of coordinating public services provision. |
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98–104
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He Jian - LL.M graduate of Katholieke Universiteit Leuven, currently a PhD candidate at the School of Law, Fudan University, Shanghai, China. Address: No. 2005, Songhu Road, Yangpu District, Shanghai, People Republic of China. E-mail: hejian109@hotmail.com.
In order to lower the market entry threshold and to encourage the set-up of SMEs China's legislature body passed an amendment to the Company Law of the People's Republic of China (PRC) on 28th, Dec, 2013. This is the fourth time the Company has been revised since its introduction in China in 1994. The most recently revised provisions are primarily concerned with the reform of the registered capital system, and include the cancellation of the minimum capital requirement and the shift from actual capital contribution to authorized capital contribution. There is no distinctions of capital contribution made between the two types of companies in this revision of the Company Law. There are twelve clauses revised in the new Company Law, and which will be put into force from 1st, March, 2014. This article aims to assess the pros and cons that the new law may bring forth for those considering the investment opportunities in China. The study, descriptive, and causal in nature, has been conducted in the context of the reform of registered capital system. This article employs an explanatory way of detailing out the articles before and after revision in the Chinese Company Law in order to give panoramic view of the revisions. The article reports the latest revisions of the Company Law in China, making some comparative study of the capital contribution with the United States' and EU's. Findings from this article are practical for those who are interested in learning the knowledge on the company law in China. |
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