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Edited by Johanna Gibson

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Pamela Andanda

The application of exceptions to copyright infringement in online news articles has become contentious with the widespread practice of aggregation. The specific concern is whether reproducing or adapting news articles that are published on competitors’ websites without permission falls within the scope of the exceptions to copyright infringement in respect of news articles or, alternatively, such conduct is protected by fair use.

This paper provides a South African perspective on the above concern by comparing the USA case of Meltwater 1 with the South African case of Moneyweb, 2 which has attempted to provide clarity on copyright in the context of online journalism. The paper first analyses the complexities of the rapid rise of online news, which raise questions such as whether hyperlinking is sufficient attribution and the difference between ‘scraping’ and aggregation, as well as the effects of these practices on competing media. It then considers whether the doctrine of fair use, which should arguably be flexible enough to adapt to the changing obligations in the context of new technologies, 3 is capable of providing clear guidance on reasonable online media practice beyond South Africa. The central argument is that the doctrine of fair use should foster online innovation and the sharing of public information while ensuring respect of copyright.

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  • Elgar Law, Technology and Society series

Michael J. Madison

This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or its natural, factual or ideational properties. Access questions are, accordingly, diverse. That diversity is compounded by the proposition that access is itself a property of a resource, in the sense that resource characteristics are, to a substantial extent, socially and culturally constructed. Social construction means not only that boundaries among properties of a resource may be blurred but also that those properties and boundaries may change over time. By virtue of that diversity, investigating access to knowledge resources creates the risk of producing a conceptually fragmented and unhelpful landscape of theory and application on a resource-by-resource basis. This chapter suggests that the investigation of access to knowledge resources may be unified under the umbrella concept of knowledge commons, the study of governance of shared knowledge resources. It presents a framework for understanding knowledge commons and illustrates its application to several questions of access to the material and immaterial dimensions of specific knowledge resources.
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  • Elgar Law, Technology and Society series

Jessica C. Lai and Antoinette Maget Dominicé

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  • Elgar Law, Technology and Society series

Edited by Jessica C. Lai and Antoinette Maget Dominicé

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  • Elgar Law, Technology and Society series

Edited by Jessica C. Lai and Antoinette Maget Dominicé

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Edited by Johanna Gibson

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Rob J Aerts

Although in the European Union (the Union) the substantive rules for the patenting of biotechnological inventions are governed by Directive 98/44, the actual examination and grant of patents in Europe is provided by the European Patent Office (EPO), which is not part of the Union legal order and acts according to a non-Union legal instrument, the European Patent Convention (EPC). This hybrid situation results in legal uncertainty and can lead to partly inconsistent applications of patentability requirements, since the EPO is not bound to Union law and cannot refer questions to the Court of Justice of the EU (CJEU). Thus, there is no guarantee that the Union and Unified Patent Court (UPC) judiciaries, on the one hand, and the EPO judiciaries, on the other hand, will come to comparable conclusions regarding the patenting of identical biotechnological subject-matter in the Union, irrespective of whether it concerns a classic European patent or a unitary patent. However, the unitary patent is introduced in the framework of fostering the functioning of the internal market and ensuring undistorted competition, and it provides uniform protection. The CJEU has given a very limited interpretation only to this concept of uniformity, leaving room for inconsistent decisions. Hence, it would appear that only intentional, determined harmonization efforts of the diverse judiciaries involved can increase consistency between decisions of the Union and the non-Union legal systems, although the judiciaries are unrelated. This call for coherency becomes even more pressing with the establishment of the unitary patent. Given this complex situation it may be questioned whether in the Union the law-makers of Directive 98/44 can fully achieve their aim in regulating and harmonizing biotechnology patenting.

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Philipp Maume

The interface between intellectual property law and competition law is complicated. The interaction between prohibited abuse of market power under EU competition law and national intellectual property rights has been a perennial issue for courts on both the EU and the member-state level. The issue became even more complicated by the ongoing standardization movement which raised concerns about the anticompetitive nature of standardization agreements and possible implications for compulsory licensing. The practical question was the availability of injunctive relief for infringements of patents that are essential to an established market standard. In July 2015, the Court of Justice of the European Union put an end to the simmering conflict between the European Commission and German patent litigation courts. The new ruling Huawei ./.ZTE is ground breaking and transcends the borders of competition law, partially harmonizing patent litigation practice in Europe.

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Edited by Johanna Gibson