Technology as the backbone of copyright – Netopia Spotlight: Prof Eleonora Rosati

Intellectual property law was once the focus of a small number of lawyers and experts.

Today, every person comes in contact with it almost on a daily basis in their digital lives. New problems have arrived and there is no shortage of policy in this space. Nothing suggests this trend will slow down, rather intellectual property becomes increasingly important as the knowledge society develops.

What is the long-term view of intellectual property in the digital world and what will be the impact of some of these policies? Netopia turned to law professor Eleonora Rosati for answers.


Here below is a full transcript – please note this is autogenerated speech to text AI transcription (blemishes and all!).

Hello and welcome to Netopia Video Spotlight interview and my guest today is none other than Professor Eleonora Rosati.

Welcome. Thank you very much Per. I’m very well… and it is a pleasure to be with you and your guest today.

Thank you too. You are a professor of Intellectual Property Law at Stockholm University. You also do private Practice and we love to read your comments at the IP kitten website… is that is that a fair summary of your professional status?

Yes, I would say that it is accurate and it is a pleasure to be able also to engage with IP law in different forums and at different levels. So I find this very enriching it and indeed the privilege wonderful. And what is it? That brings You too intellectual property. Why did you choose this path? But I have to say that my encounter with intellectual property was a bit serendipity to serve, because there was no course on intellectual property law at University. I did my law undergraduate degree at the Florence University and I found out about copyright purely by chance by reading the newspaper. There was an Article by professor of commercial law on the challenges of copyright in the internet age or not. So, I wonder what is this? Copyrighted sounds extremely interesting. So after that, you know, became very curious because it seemed to be an area of the law that allowed me to combine. Of course, what I was preparing to become a lawyer with my own personal interests are given the subject matter of copyright protection and also very interesting and torn. Issue said on how the law should respond to technological advancement, and vice versa, even some cases. So after these, I studied the copyright on my own, I had to prepare a thesis to complete my degree and since and Italian civil code. There are a few provisions on copyright. There is, of course a separator copyright acted. I went to a professor of private law and ask them at all. write a thesis in copyright and it told me okay but I don’t know anything about He’s so you are on your own and I did drag this TV set, then I had an opportunity to begin an internship in the AP department of the same Law Firm. And so to see how IP worked out in practice, and after that, I was able to start an LMS at the Cambridge University in the UK and that was the first time for me to study IP. Be in an Institutional setting. So to say so that encounter with that newspaper Article, I read on a Sunday morning was a life-changing for me and copyright was love at first sight. And since then I’ve never looked back, I have to say. So it has been a, I have p and long-standing relationship for me. Okay, that sounds good.

And what about your students? Do you think that there is a Increasing appetite in the students for copyright law

I would say so. And indeed that if we look at the number of specialized Master programs around Europe, just to take one region of the world. That seems to me that we’ve seen a multiplication of educational offerings in the intellectual property field, and we are seeing even further specialization at this stage, so a Masters in entertainment law. In fact, in Patent Law etc. So I think that over the past several years, it has become apparent that of how important intellectual property is, how relevant it is to think about protecting IP assets and accordingly. There is a wealth of law firms specializing in this field companies for which IP is really the bread and butter and the students wanting to know more and specialize in this field, which I think offers the best of all opportunities because the subject matter of intellectual property is very interesting. The legal questions are never the same or actually if they’re the same, the issues are always different. So it is never a dull moment, and I think that also given you’re a professional profile, you would agree with these characterizations.

Yes, I do and I would add that also in policy and in the public debate and in the media, the focus on on copyright and intellectual property issues have really increased in the last decade. Or so, why do you think this is the case with the change in focus?

It is also quite clear that copyright can play a role or two in ensuring the fairness of the marketplace and remedying imbalances

For sure, I think you’re right that since I would say the late 2000s, there has been a real I’m the attention towards it, IP and copyright and if I think about copyright, we’ve seen since the adoption of Lisbon Reform Treaty, and then the policy documents leading up to the former commission’s digital single market strategy. And understanding of our strategic copyright is also to the EU policy of integration and internal market building. I think that also the time frame is not accidental. It is in part also a response to the increasing number of cases that are being litigated in this field and in turn also the number of referrals the Court of Justice and in all these and the Court of Justice has proved to be a court that a place, an absolutely key role in the intellectual property field and if we take the case of copyright specifically some of the policy said that the European commission has proposed or is about to propose, and are in some cases reactive to see rulings, and I’m thinking if you take the DSM directive Article 16. It was meant to address the implication of these private copying ruling or if we think about the provisions on out of commerce works, and their collective lives in this with an extended effect, The are echo of a decision of the Court of Justice is also clear. And right now the European Commission is considering how to address the implications of their judgment not too long ago. So it is a very complex ecosystem and so these are revamped policy that you so correctly outline is a mix of litigation objective uncertainty, a court of justice. That is shaping the IP field as we have it and awareness. that IP plays a key role also in other respects, So it is not just about internal Market building but it is also about competitiveness of a legal system and in this specific case competitiveness of the European Union vis-à-vis countries, and it is also quite clear that copyright can play a role or two in ensuring the fairness of the marketplace and remedying imbalances, … they are in different ways. And an example of the former is, of course, Article 17 of the DSM directive that was dubbed, the “Value Gap” provision, but it is not certainly the only “Value Gap” that is considered in that piece of legislation. The “Press Publishers Right” is another example, and then the contracts of authors and performers vis-à-vis direct contract counterparts, record, labels publishers and so on.

That’s a really interesting answer and you talk about EU policy developments, you talk about competition and of course no surprise you talk about legal developments with case law and such. I would have expected you to say it’s because of the technological evolution. Also starting from from the newspaper Article with the internet and copyright but how much is driven by the policymaker and the court system and how much is technology? And also maybe if I may add my own little theory…. the shift in the economy towards the knowledge economy, how important that this factor for the proper form of right?

Or if we think about the photocopy machine, the VHS, the peer-to-peer file sharing and now all these platform economy operators that are present day….

You are right and that I needn’t express mention this specifically, but of course all these cases that have been popping up over the past few years so they were prompted by technological. – not so technology does clearly play a role and indeed there is an attempt on the one end to try and regulate the direction of technological development but on the other end and I think quite inevitably sometimes the policy and legislative discourse is a reaction to technologies that have been emerging and so trying to understand what, the best response should be to the opportunities but also the challenges that these developments do present but I would say also something else that indeed the technology has always been the backbone of copyright if we go back to the invention of copyright in modern history, the reason why that was born was to respond to the technological challenge of that time. that was the invention of the printing press, and if we then continue it has been like that throughout history for example, When are the US Supreme Court had to decide whether photographs could be protected or not by copyright because that new medium of Photography appear different from traditional Visual Arts. Or if we think about the photocopy machine, the VHS, the peer-to-peer file sharing and now all these platform economy operators that are present day….so it is always new questions but that is nothing new because it is, what copyright has always been about. It has been a about addressing the challenges and opportunities that new technologies will present.

Yes, of course. That’s a point. well made almost like being in your classroom. It feels so thank you for that. But How do you see the…. So I understand that the policy-making response to the outside world technology, economy Etc. And then in turn, that influences the outside world. But what do you see as the long-term impact of of the European Union? Because we’ve seen a lot of policy initiatives in the last few years, you would agree that there’s been a multiplication or an increase of the policy initiatives and intellectual property.

we think about the Orphan Works directive, not that people might have forgotten about it since I am not aware of any case that has stemmed from that but still it was adopted in 2012 as the European response to the Google books library project

That is correct 100% but another point that I think is equally interesting, is the fact that if we look at what the European Union did until quite recently was some reaction to what other legal systems were doing. So, if we think about the eCommerce Directive, the Safe Harbor system. It was the European response to the Digital Millennium Copyright Act. Or if we think about the Orphan Works directive, not that people might have forgotten about it since I am not aware of any case that has stemmed from that but still it was adopted in 2012 as the European response to the Google books library project and related litigation. So in the past especially the European policy responses in the field of IP and copyright were a bit of a reaction to what others were doing. But since 2015 and onwards the European Union has really taken center stage. And come up with very peculiar and very personal solutions to some of these legal issues. And as a result what the European Union has been doing is now look that with interested criticism approval depending on the perspective from other regions of the world. If I’m thinking about the debate about the Press Publishers Right which in Australia there has been a debate that has been informed by what the terms of the discussion were in Europe and the same has happened in the United States or so, they have the US copyright office conducted a review of the protections available to press Publishers in the US and still The US Copyright office has been considering this Safe Harbor system in that jurisdiction and the reference has been made to Article 17 of the DSM directive. So this multiplication of initiatives has also placed the European Union in a different position vis-à-vis. their country said that also have been considering how best to shape their own IP laws and including copyright.

So it seems that sometimes the European policies can travel and the European commissions or European institutions influence can have a wider reach than the European geography. Is that right?

it is the European Union framework. that is becoming an absolutely central to what IP law is should be and will be in Europe, but possibly also with the effects in other parts of the world.

Absolutely! But also in so far as national law making is concerned that indeed; If we look at the substantive IP development at the national level in Europe, over the past several years then I’m not sure it is possible to identify something groundbreaking and that is solely done at the national level. So there might be minor reforms, certain adjustments about it on a substantial level. Most of the IP that we are working with today is in response to EU developments. So, it is the European Union framework. that is becoming an absolutely central to what IP law is should be and will be in Europe, but possibly also with the effects in other parts of the world.

So speaking of recent developments and an effect in the outside world, I can’t help but think of Twitter and the recent debate and the attention to the Elon Musk take over. And, and of course he had a much more liberal view on what should be possible for the users of that platform to post. And then previously, for example, copyright work started appearing on Twitter, I think they were removed, but I think that’s an interesting case in point. I mean, how big is the influence of the Law compared to maybe the influence of management and owners and the ideologies of those players, is it possible to regulate the internet platforms like that?

In the case of Twitter it is very interesting. You know, and indeed, they brought first a plethora of IP issues considering the recent events, I’m thinking about the Twitter blue verification. As far as I know it’s currently discontinued but also the case that you are mentioning of a Content moderation. I find it difficult to think of a platform that is targeting the European Union accessible from the EU and being able to escape the application of the EU rules Now, if you are asking me specifically about copyright, of course, there is now Article 17 of the DSM directive in place and the for a platform like Twitter, I would like to have a discussion whether indeed the it qualifies for the application of that provision. So is Twitter and online content sharing service, provider or not. I think we can have a discussion about that, but in any event that we have also case law from the court of justice. That does not exclude the application of a direct responsibility of the platform in other cases. Other 10, indeed, the Article 17. So it is a very Interesting development, but the bottom line is that the there is an application of EU rules. Also two players that might consider themselves as a not been caught within their sphere of application, and the full Article 17. And there is the big question of indeed targeting from outside The European Union does that war of the application of the EU and national copyright laws? I think that we will know more once these rules are all in place, and with those four to litigation are brought before courts because these are all big question marks right now.

Isn’t that also a frustration that sometimes that problems exist for years? Then once the policymaker responds it takes even more years for the litigation to come in place and the national implementation etc… … does it have to be like that, that the law is slower?

I mean, that easy, no, I want a million euros and not even dollars question. Your know that you’re asking or Kronor! But of course, I mean here we are dealing with an environment in which it is not just IP and copyright protection that is at issue but also other rights and be interest. I’m thinking about the freedom of expression information, freedom to conduct a business and all these I have mentioned are fundamental rights and so also finding the right balance is something that is not necessarily straightforward and that I find that also the debate around Article 17 demonstrates that. If we look at the original proposal of the European Commission that was paradoxically a much simpler provision and what is right now it is a probably the longest copyright provisions ever written, and it has taken it three years of debate to get there. and now with the delay in the national transpositions and the challenge of the Republic of Poland. The, you know, the guidance that can be inferred from a other case law of the court of justice, the guidelines of the European Commission itself. It shows that it is a very complex ecosystem and that perhaps, you know, a rushed outcome might be not, ideal considering all the different rights it and interested at that are at stake in the regulation of the internet. I mean, I want way to make things quicker. I might be to rethink the EU instrument that is being used because of course, the directive requires transposition of the national level and what we’ve seen so far is that it is a far from true that member states have been moving in this direction and paradoxically the puzzle that we have now is one that is even more fragmented and what was the case before? So one way might be for the future not to use the instrument of directives but rather regulations. so to skip it is national transposition phase. At least for the major part, Of course. I mean, if we are looking at what is being on the placed on the table in Brussels right now, all these Acts as they are presented, they are all regulations. So probably this tells us something about the opportunity of using Directives to regulate digital and online issues.

Interesting? Yes, so that might be a change in strategy on the part of the European policy maker and it also touches on what you mentioned before about foreign services addressing the European users. What do you see will be the impact of the Digital Services Act and the Digital Markets Act? Do you think it will live up to the expectation and do what the European policymakers hope?

That is another important question. Of course it is to early to say these are a horizontal harmonization exercises so it’s not they are IP instruments. So they will cut across different policy and legislative areas insofar as copyright are concerned. If we take the DSA, there is a specific mention that it is without prejudice to copyright rules. So one might think that formerly there is no relationship whatsoever but that will be hardly correct because where the copyright legislation does not find application because it does not specifically regulate certain aspect, the DSA will. So to answer your question, whether they will live up to their expectations test, it will be necessary to understand it when the special laws of copyright come into application, when instead, the general law of the DSA applies instead, and secondly, we needed to make sure that these exercise of balancing of different rights and interest is carried out correctly to make sure that that the underlying rational of both legislations – which I don’t think are dissimilar – can be fully achieved. Okay.

Well, so we will continue to carefully to watch that on. We might come back to you for guidance on those topics if you don’t mind but if we look outside the Northern Hemisphere looked at the global south, I would like to hear your view is. Sometimes I come across the argument that copyright might stand in the way of economic development in developing in least developed countries and that there should be various kinds of exceptions, put in place to support them. What do you think about this logic?

I mean, I see merit to that because it would be, you know, incorrect and unfair to think that we are all… you know, in the same condition when it comes to accessing a copyright protected materials and the topic of exceptions and limitations is certainly one of the most important ones in copyright and there is a broader discourse to be made regarding the cost of licenses, the possibility to engage, with content in the first place. And then, of course, the issue of exceptions and limitations, I can also think that It when comes at one specific aspect that there is academic publishing, there is now a great push towards the publishing Open Access, but there is the issue that for example, scholars from developing jurisdictions might not be affiliated with institutions that are able to afford paying these types of licenses and there’s a result also their work is less easy to find access. So it is a broader discourse and I don’t think I can be just framed within a divide between the copyright exclusivity and exceptions and limitations but it is the ecosystem in which copyright stakeholders operated that warrants an international Level playing field that works for everyone and not just a for a certain legal systems or a economies in the world. Q .Okay? But let’s see. See if I can try this idea. Then what about the local… For example, People who make entertainment or art in developing a little less developed countries, music, cinema, books, whatever that needs copied copyright protection. Don’t you think that they might be at a disadvantage if they have a weaker protection than the competitors or fellows from other jurisdictions? Certainly that might be one possible outcome but the other one is also about ensuring an effective accessible and proportionate enforcement of one’s rights because I don’t think it is possible to reason it just in abstract terms, whether you have a strong copyright or not, what matters more than these is whether you can license the use of your content. And if someone uses it that without your permission, how easy is it to access enforcement opportunities. So again, I believe that this discourse and needs to be an organic one that takes into consideration, all these other aspects because otherwise, the picture will be far from complete and my thoughts are risk, giving it, you know, a false narrative towards their copyright eco system is about, it’s not just about having the right on paper, but whether it is possible to exploit it. It how, and how easy is it, or not to protect it and what can you get from your protection efforts? Okay. Okay. Yeah. That makes sense.

Another question on my mind recently has been, and we’ve all seen all over social media. AI generated art….. It appears that that is now in the hands of every social media user. And of course that raises several copyright topics perhaps it’s, it should be. It’s only interview. But how do you see this technological development influence the discussion around copyright.

I would say in most jurisdictions around the world that is clearly a topical issue. And it seems to me that so far big part of the discussion has been the predictability of these AI generated outputs whether there is copyright in AI generated painting if so who owns it should there be or something like that? So certainly this is a forward-looking discussion but not even that forward-looking because it is something imminent to address and you will have seen that for example, before the US copyright office, there have been some applications register with the office AI generated works. And the office in the US has given a different response from what might be the case in other parts of the world. So that is certainly, you know, one big chunk of the discussion but another one that I find, the more pressing right now is the question of liability. So for the AI to be in a position to create a painting in the style of X and Y, or a piece of music in the style of X and Y it needs to be trained on materials that might be or might have been protected by copyright. And of course if they are still protected by copyright, there might be in the question whether a license is needed or not …that you can rely on exception of limitation or not. You will have seen at that right now there are some artists that have expressed their discontent to put it mildly with some AI applications using their content for AI to be trained. So the question of mining of content is the most pressing and important one at this very stage and as you know, the European Union has tried to regulate this field from a corporate perspective through the 2019 DSM Directive. But this discussion is underway also in other jurisdictions? I’m thinking about the debate in the US about “Fair Use” whether and to what extent they cover mining exercises. The Japanese experience with text and data mining. If I’m not mistaken, Japan was the first country in the world to introduce a text and mining exception. So sometimes we focus too much on the output, whether there are Rights and who owns them, but on a more immediate and pressing level, the question of liability is the one that I think I should call for our attention and correct application of indeed relevant legal principles, and ensuring the fair balance of Rights and interested. Okay, good.

And I have asked you about some of the questions that I find fascinating in this field and that are current and topical and relevant. But looking ahead, do you see something else that that we don’t talk about so much that you think should be on the in the spotlight that we should think about going forward. What’s the next? What’s coming around the corner?

But I think that around the corner is the discussion of contracts of authors and performers. Because as you know, the DSM directive sets… quite ambitiously some harmonized principles and criteria, but the member states are given quite a substantial leeway in the wrong transpositions. So I think that, what we’ll see around the corner is an attempt at one, the standard, whether what member states have done or have been doing. Is enough… allows one to reach the end results and what the specifically individual authors and performers can and should do. So this issue of contracts I think is going to be a great part of the debate for the next few years. And then, of course, there is always the issue of new technologies that emerge all the time and how we regulate them. I don’t think that for example, the discussion around Article 17, and the Platform Liability is exhausted. Probably it has just began and in the years to come we will see many questions popping up regarding the application of the rules that were adopted in 2019. We might end up In a context in which what was quite straightforward in 2019,no longer in a 2025… 2027 and so on.

Okay, this was fascinating. Thank you so much. I’m afraid we’re out of time. I have more questions. Perhaps I should sign up to your classes Professor Rosati. Thank you so much for coming to Netopia Video Spotlight

My pleasure, and an honor, and you’re way too kind. So thanks so much for taking the time to invite me to speak with you. Thank you very much. I thank you for watching. And I now stop the recording, perfect.

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