A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Paul Torremans
Chapter 17: Alternative dispute resolution - a remedy for soothing tensions between technological measures and exceptions?
17 Alternative dispute resolution – a remedy for soothing tensions between technological measures and exceptions? Brigitte Lindner1 Introduction The interface of technological measures and exceptions has been the centre of attraction for legislators, scholars and commentators alike. Different solutions have been adopted in Europe and elsewhere for reconciling the sensitive relationship between technological measures and exceptions. This contribution examines more closely one of the ways chosen by legislators for achieving that goal, namely the recourse to alternative dispute resolution mechanisms for mitigating disputes between right holders and beneficiaries of exceptions.2 As a first step we will define the notion of alternative dispute resolution (hereinafter referred to as ‘ADR’) for the purposes of the present discussion. In the following, we will assess whether ADR could indeed be a suitable tool for solving disputes in the field of technological measures and exceptions. Finally, we will look more closely at the specific ways in which national legislators have accommodated alternative dispute resolution mechanisms for dealing with cases in this particular field. Where legislators have gone other ways, e.g. by referring such disputes to the courts or calling for government intervention, we shall assess whether the possibility of taking recourse to alternative dispute resolution mechanisms remains open. However, before tackling all these questions, it is certainly legitimate to ask why the problem has arisen at all. 1. Background 1.1. The technological scenario The latest electronic copying and transmission techniques present a great challenge to the exploitation of literary and artistic works. Works cannot only be...
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