Erfahrungsbericht

Experience of Peter Lee, University of Kyushu, Fukuoka

 

The IN SITU (International Summer School in IT Law at Leibniz Universität Hannover) 2015 for last 24 days came to an end - with hot topics related to IT and IP Law, with heated discussion, with lecturers' passion and staff's warm kindness, and with warmhearted amazing friends from about 17 countries from Denmark, Italy, France, Slovakia, Ukraine, Croatia and Russia, Turkey, Greece, Iran, Kyrgyzstan to Japan, Korea, and Ecuador. It was one of the most exciting and memorable summer one could possibly imagine, needless to say that it was informative and thought provoking experience.

The four-week program consists of mostly lectures and several cultural activities.

The lectures were given for three periods a day, covering more or less 10 different topics related to IT and IP Law - from Data Protection, E-Commerce, IT Contracts to IP Protection and Private International Law. Most of them are mainly focusing on EU Laws as well as some International Laws with which the EU is bound to comply. One of the important aims of the program is to understand developments of the EU Laws in reaction to dynamic developments of technologies and arising legal issues therein.

It started with a good warming up - introductory lectures on EU Law and German Law. Understanding basics from legal systems and frameworks of the EU to direct effect of EU Law on horizontal/vertical level has been useful during the entire courses when studying related laws and applying to cases. This is a good chance for non-EU students to catch up with understanding of the EU Law by other EU class mates.

Data protection is one of the primary themes of the program. The first few hours were spent for understanding the background and context of data protection in the EU – EU’s digital competitiveness, basic legal frameworks, problems and solutions, privacy, data protection, etc. The data protection was then discussed as one of the fundamental rights in Europe in parallel with Article 8 of the European Convention on Human Rights (as a right to respect for private and family life) and Council of Europe Convention 108 for the protection of individuals with regard to automatic processing of personal data. It was refreshing input that there is relevant correlation between technological convenience/threats to human rights and dignity as shown from EU's approach to data retention, other related cases, and even our (future) daily life.

The discussion on data protection further centered over Data Protection Directive (95/46/EC), ePrivacy Directive (2002/58/EC), and Data Retention Directive (2006/24/EC). EU's ongoing discussion on updating the EU Data Protection Directive to regulation level and such timeliness spurred the class into more dynamic and heated discussion. Recent cases based on technological developments and newly arising issues justify the amendment proposals, while implementation of a future regulation raises some challenges. Discussion on ePrivacy Directive informed the students of data protection applicable to location data, traffic data, cookies, etc., all of which are interesting subject matters to the internet generation. With regards to retention of such data, the Data Retention Directive allowed it for the purpose of investigation, detection, and prosecution of serious crimes for certain periods (6 months - 2 years), but CJEU (joined cases C-293/12 and C-594/12) invalidated the Directive due to its excessiveness of the wide ranging and serious interference with the fundamental rights.

E-Commerce is another important subject considering how much we are exposed to internet contracts. The lectures were basically aimed at examining elements to be considered in internet contracts, which thus extended to consumer rights, jurisdiction and applicable law, some privacy issues, and liability of a service provider. Students had a chance to examine provisions of Directive on E-Commerce (2000/31/EC), Directive on Electronic Signatures (1999/93/EC), Directive on Consumer Rights (2011/83/EC), and other terms and conditions of actual online contracts. In terms of service provider’s liability, the class paid attention to the case Delfi v. Estonia as a case related to liability of an intermediary, though the court did not make a particular reference to classification of liabilities under the Directive on E-Commerce.

The course moved on to Private International Law, as choice of jurisdiction, choice of law, and recognition and enforcement of foreign judgments are highly relevant particularly in e-commerce and online IP infringement cases. While the lecture first introduced the history, importance, and legal framework, etc., it was very helpful in understanding basics of Private International Law such as principles, case laws, and changing tendencies for choice of jurisdiction (and law) in different legal systems. A comparison with characteristics of internet showed that difficulty of Private International Law in internet cases mainly comes from the lawyers’ or legislators’ attempts to define a geographical place for transactions or infringement occurred in the cyber space. The Recast (1215/2012) of Brussels I Regulation and the Rome I (593/2008) and the Rome II (864/2007) Regulation were used as the main legal texts to apply to different cases. When it comes to applying the regulations, an elimination-in-order approach was useful – for example, it may be easier to check first whether jurisdiction was agreed between the parties, whether the dispute belongs to the list of exclusive jurisdictions, whether the dispute involves consumer contract, otherwise whether the matter is related to contract or not (tort), etc. Many cases were related to infringement of IP rights by the content posted or used online, where the court mostly decided that a plaintiff may bring his action before the court where the IP right is registered, where the publisher is established, where the center of the victim’s interests is based, or where the infringing content has been accessible. Other cases, involving an action where a consumer brings a proceeding based on internet transactions, accepted as a consumer contract if there are evidences as to whether the trader’s activity is directed to the Member State of the consumer’s domicile, other than mere operation of internet website, such as languages, international telephone numbers, etc.

The program also placed considerable portion of time in studying IP rights and protection in the EU as another major theme. The first IP lectures, while covering extensive range of IP Laws of the EU from definitions to principles, related cases, and legal frameworks of IP, focused on protected works and exclusive rights of the EU Copyright Laws – in particular, core issues related to reproduction, distribution, and communication to the public. The set of lectures was strategically designed to facilitate students’ understanding by bringing a pool of abundant cases commonly applicable to understanding different concepts and requirements of the IP Laws. Another lecture about IP overlaps took a step further and asked students to apply laws of different IPs to a number of case studies. It provided an opportunity for students to review the different IP Laws – Patent, Copyright, Design, Trademark, and Unfair Competition Law – and come up with arguments to apply different IPs based on given legal texts.

Other lectures rather focused on specialized areas of IT or IP such as data protection in the field of medical research, IT contracts, legal issues of cloud computing and 3D printing, biotechnology, legal protection of plant varieties, etc. (in order)

The first one introduced the framework of p-medicine (an ongoing project for personalized medicine) data protection and issues related to processing of personal data, which were later applied to group work where students had a challenging but interesting discussion on legitimacy in the use of patients’ medical data for the purpose of research.

The IT contract, distinguished from e-commerce, mainly focused on contractual elements to be examined as a lawyer when dealing with IT (software) contracts – parties, product, price, etc. It further encouraged students to discuss infringement and limitations of copyright use of computer programs. Among others, the first sale doctrine applied to a sale of digital goods like software was a fascinating subject to most students. What makes more interesting was that the subject may be relevant more and more in our daily life, as we enter into more contracts for use of computer programs or applications over all kinds of media like e-books, music, games, etc.

Lectures on the cloud computing and the 3D printing aimed at understanding features of each subject matter and merits of paying legal attention. The nature and complexity of cloud computing such as a risk of using and storing cloud data, regardless-of-location access to data, position of cloud intermediaries, etc. are vulnerable to inconsistency with existing data protection legal principles and to other potential (legal) issues. The fast growing 3D printing industry, together with its technical background, also provided an opportunity to think over a number of legal issues: where does liability for copying and infringing IP rights lie, the copying and distributing person, designer of the structure, 3D printing device (manufacturer), etc.?; to whom does the ownership of a modified design of the 3D printed object belong?; etc.

The lecture on biotechnology took back from the meaning of regulating or protecting patents in justification, subject matters, requirements, claims, disclosure, etc. It then led to discussion on patentability of biotechnology in relation to ethical issues, the nature of the technology, industrial applicability. The EU’s Biotechnology Directive is important, as it harmonizes different national laws and gives the jurisdiction to CJEU, but unclear in certain aspects. Considering such issues on the patentability of biotechnology, the lecture throws back a meaningful question: should patent law regulate technology?

A special lecture held at the Bundessortenamt (Federal Plant Variety Office in Germany, headquartered in Hannover), which is responsible for granting plant breeders’ rights as well as registration of varieties in the national list, gave an overview about requirements, procedures, and breeders’ rights in the protection of plant varieties under the EU and German Laws. For instance, application goes through testing for distinctness, uniformity, and stability for about 2-3 years, based on which a decision may be made by any of 10 testing stations as to whether or not it is admitted, and the variety will be notified and added in EU common catalogue, and marketable in the whole EU. The protection is for 10 years and renewable.

Distinguished from the other lectures, the lecture on cyber regulation took theoretical approaches to the regulation by first raising following questions: can and should cyber space be regulated?; what aspects should be regulated?; and if so, who should be responsible for the regulatory functions? The discussion extended, as some scholars claim, to a broader scope of elements regulating or controlling individual behaviors such as norms, market, design/architecture, etc. Further discussion pointed out that such regulatory elements are proposed based on presumption that actors are rational, but a regulatory model should consider the influence of irrationality over individual behaviors in the online environment.

In general, most lectures continued with students’ active participation in discussion and exchanges of questions/answers. While some lectures mainly took a lecture-based approach using legal texts and cases, diverse backgrounds of lecturers from entrepreneurs to practicing lawyers played positive functions by helping the students take different approaches to certain issues and learn with different methods from free discussion and group competition to outdoor lectures and, lastly, written exams. The level of studies extends from basic to intermediary or higher level, but the whole course is strategically organized from the level of 0 to 10 in sequence.

The program did not only place an emphasis on the academic aspect. Cultural activities enriched the four-week life of the summer school, providing a good chance of understanding history and culture about the place where we study and stay. Group tours were organized almost every weekend not only in Hanover but also in other parts of Germany – a city tour of Hanover in the first week, a city tour of Hamburg in the second, a trip to Berlin in the third, and a trip to castle near Hannover in the last week. Amongst others, it was interesting to learn that some rulers of Hanover – the house of Hanover – ascended monarchs of Great Britain, including the well-known Queen Victoria. Hamburg boasted of vestiges as one of the largest ports in the world together with the Speicherstadt, the Hamburg’s historic port warehouses which recently obtained the world heritage status. Berlin, the capital of Germany, which went through most dynamic changes and developments in the world in the 20th century, showed efforts of preserving and reconstructing values of the pre-war history, while at the same time sharing the past of shame and pain in every corner of the city. The Berlin trip which continued for 3 days allowed the students to taste diverse aspects of the city during the tours of the city and the German parliament as well as during the individual time given for exploring details of the city. The program also arranged some small trips to Royal Garden, Hanover Marienburg Castle, Federal Plant Variety Office, etc. It must be also mentioned how amazing the international cooking party was and the time spent together during the Hanover Lake Festival.

Last but not least, the best asset you will find in the summer school is people. Lecturers were always helpful, trying to discuss with students in and out of the classes. Organizers and staff tried to pay best attention to each and every attendant from arranging places, foods, and drinks for many events to guiding us to German culture and community. As the Director of the Institute made clear in the welcoming message, the institute and all its staff have been and will be open to all the attendants as colleagues or friends even after the program ended. Meeting new friends from different parts of the world may be exciting, but spending four weeks of daily life together from the morning when we saw each other after waking up with a bedhead till the evening when we went out for shopping, eating, drinking, watching movies together, talking all night at the dorm, etc. was more than excitement – it rather made all of us feel like we belong to a big family. After the unforgettable four weeks, they now went back to one’s own daily work and life in each of their countries, but with big aspiration in each of his or her mind. To some friends, the program will be new motivation that will spur their life plan, or some others may have found a new potential for his career or specialization.

We appreciate that the IN SITU 2015 offered the timeless opportunity where we all learned and gained TOGETHER.