Tom Braegelmann

Whoever wants to combine data from different sources on the basis of legitimate interest should have a closer look at the latest conclusion by BKartA of the infamous BKart/Meta case[..] You can find the detailed summary/case report by BKartA that describes Meta ´s measures here: https://lnkd.in/exXgr8Tw

1

Author vs. Editor: Who owns the copyright? The German Federal Supreme Court (BGH) just decided on a dispute worthy of a Shakespearean drama (minus the tights). An author's right to recognition of authorship is protected even if the denial or claim of authorship is only expressed to the author themselves. This means that an author can take legal action against someone who disputes their authorship, even if the dispute is not made public. 🟪The decision is based on the principle that an author's personality right is infringed by any denial or claim of authorship. This right is protected by Section 13 Satz 1 of the German Copyright Act (Urheberrechtsgesetz, UrhG). 🟧The decision is significant because it clarifies the scope of an author's right to recognition of authorship. It means that authors can now take legal action to protect their rights even if the dispute is not made public. Moral of the story? Respect the pen🙂 and give credit where credit's due! ⚖️ #copyright #authorship #writinglife

4

💣 BREAKING - Judgment in *Kneschke v LAION* on TDM, machine-readable opt-outs and temporary copies. The Hamburg Court dismissed the claim. The claim related to LAION's dataset of URLs and descriptions of >5 billion images (and used by some developers of GenAI). Kneschke, a photographer, brought a claim of copyright infringement over an image accessed by LAION via a photo agency website. The key findings (based on a machine translation) appear to be: 🔹 LAION's acts would be infringement but for an exception. (LAION downloaded the image from the internet, processed to determine if it matched its description and deleted it.) 🔹 The acts were outside the "temporary acts of reproduction" exception (s.44a of the German Copyright Act). LAION did not show that the reproduction was fleeting or that deletion was automatic. 🔹 LAION's acts fell within the text and data mining (TDM) exception for scientific research purposes (s.60d). This depended on the nature of the activity, not on how LAION was organised or financed. It was not relevant that companies used the LAION dataset for commercial purposes. Some of the LAION team were also employed by one such company, but it was not shown that this company exerted influence on LAION or had preferential access to the findings of the research (which would take the research outside s.60d). 🔹 Because s.60d applied, the Court did not need to make final decisions on whether the acts fell within the exception for commercial TDM (s.44b). But the judgment describes this as doubtful ("zweifelhaft"). - The Court held that LAION's acts fell within the literal definition of TDM, specifically "automated analysis ... for ... gathering ... correlations": LAION used software to check whether the image conformed to its description before including it in the dataset. - The Court cited arguments that TDM excludes mining of expressive content. It raised doubts that these arguments are convincing, held that TDM in the DSM Directive is not necessarily limited to technology then "on the radar" and noted that the AI Act treats TDM as applying to General Purpose AI. It also suggested that the ultimate use made of the dataset is not determinative: when the dataset was compiled it was not foreseeable that it would be used successfully to train artificial neural networks nor what content such AI would generate. - The Court considered prejudice to the interests of the rightholder (part of the 3-step test, A7 DSM and A5(4) InfoSoc) and suggested there was no prejudice from the dataset itself and that future uses of the dataset should not be relevant. 🔹 The Court made no final decisions over whether a restriction on the photo agency's website was a "reservation of use ... in a machine-readable format" under s.44b(3), but suggested reservations: - can be made by owners or their licensees; - need not specify TDM; - can apply to all the contents of a website; - can be natural language, given AI capabilities to understand this.

146

13 Kommentare

The German Federal Supreme Court (the Bundesgerichtshof) has recently ruled that advertising claims which lack sufficient substantiation may be considered misleading and, therefore, in breach of the statutory requirements of the German Act against Unfair Commercial Practice. Read Carsten Dobler, Alexander Hardinghaus and Philipp Süss' latest update on our blog to learn of the most recent development in the German courts. #ClimateChange #Greenwashing #NetZero #Business #Advertising

10

1 Kommentar

The German Federal Court of Justice just published its decision in the scraping case. Here is a machine translation of the relevant part of the press release: 1) "Even the mere and brief loss of control over one's own personal data as a result of a violation of the General Data Protection Regulation can constitute non-material damage in the meaning of Article 82 GDPR. In this respect, there is no need for the data to have been misused to the detriment of the data subject, nor is there any need for any other additional noticeable negative consequences." 2) "The Federal Court of Justice has provided guidance on the assessment (Section 287 of the Civil Procedure Code) of the non-material damage arising from Art. 82(1) GDPR and explained why, under the circumstances of the dispute, there would be no legal objections to setting the compensation for the mere loss of control at a level of €100." The final decision has not been published yet, just the press release. Source (German): https://lnkd.in/ecepYxdA #PrivacyLitigation #NonMaterialDamages #GDPR

13

Wow, what a day in data protection land, 4 October 2024! The CJEU published 5 new #GDPR judgements on Friday (plus another one on the LED). Most outcomes were expected. Here are some thoughts:   1. Case C‑21/23, Lindenapotheke, the most interesting judgement in my opinion and the only one by the Grand Chamber. Data protection and unfair competition law remedies coexist, chapter VIII GDPR has no blocking effect. This means that traders can file for injunctive relief against competitors based on national unfair competition law if national law grants this possibility. The CJEU indirectly confirms that breaches of the GDPR may, at the same time, constitute an unfair commercial practice, which many commentators have argued for years. Member States are not obliged to allow unfair competition law sanctions (UCPD is not applicable here), but most of them should be familiar with the concept of unlawful competition. An interesting follow-up question is whether all breaches of the GDPR can trigger market law sanctions. As the CJEU points out in the judgement, this should only be the case with regards to “material provisions”, i.e. those that have market law relevance.   2. Case C‑621/22, KNLT, confirms that marketing and other commercial interests can be “legitimate” in the meaning of Article 6(1)(f) GDPR. According to the court, data processing must be “strictly necessary”, but this simply requires that no other and less intrusive means exist in order to fulfil the legitimate interest. In other words, legitimate interest is a classic proportionality test with a special weighting in the third step (the data subject's rights must not outweigh). The court clarifies that Article 6(1)(f) does not require that such an interest be determined by law, but that the alleged legitimate interest be lawful, in other words, the interest in question must not be unlawful. The court also emphasises the importance of the data subject’s reasonable expectations, see Recital 47 GDPR.   3. Case C‑446/21, Schrems vs Facebook, confirms that targeted advertising on online platforms is not illegal per se, but personal data cannot be processed indefinitely for this purpose and not all personal data, in accordance with Article 5(1)(c) GDPR. Other factors that need to be considered are where the data has been collected and the type of data.   4. Case C‑200/23, quite a long case from Bulgaria, partially also about commercial registers. A handwritten signature of a natural person constitutes personal data. The concept of non-material damage in the meaning of Article 82(1) GDPR does not require tangible adverse consequences. An opinion of the supervisory authority of a Member State is not sufficient to exempt from liability. 5. Case C‑507/23, a case from Latvia also on Article 82(1) GDPR. The making of an apology (!) may constitute sufficient compensation for non-material damage. The attitude or motivation of the controller do not constitute aggravating or mitigating factors.

221

5 Kommentare

This issue crops up quite often in a subject access context - controllers often proceed on the assumption that they don’t need to provide copies of personal data consisting of emails or other correspondence previously sent by the data subject to the controller. But there is no exemption for “personal data the data subject already has/has had”. One tends to find though that it’s one of those situations that - unless relations between the data subject and controller have totally broken down - can be resolved with a bit of discussion, and pragmatism on both sides. In many cases the data subject has no wish to receive copies of such personal data, and will agree to redefine the request to exclude that data from its ambit.

13

2 Kommentare

Big news in the Artificial Inventor Project! Germany's highest court of civil jurisdiction has ruled in our favor and in favor of protecting AI-generated inventions, resolving a split between German federal appellate courts. Prior appellate decisions had respectively overturned and upheld the German patent office's decision to reject two different patent applications for AI-generated inventions. The Federal Court of Justice held that an AI-generated invention is protectable, and that some natural person can be named as an inventor even if AI has been used to find the claimed technical teaching. An AI generating an invention does not justify rejection of an application. This decision stands in contrast to jurisdictions such as the United States which require a natural person to make a substantial contribution to an invention in order for the invention to be patentable, and the United Kingdom which held that if an AI devises an invention it is unprotectable. Decision and English AI-translation at www.artificialinventor.com. Congratulations to Dr. Malte Köllner, patent attorney and Markus Rieck who successfully led efforts in Germany. #DABUS #artificialintelligence #lawandtechnology

207

29 Kommentare

How is the landscape of litigation funding evolving in Germany? In their chapter for Lexology In-Depth, Deminor General Counsel Germany, Dr. Malte Stübinger and Senior Legal Counsel, Tim Willing discuss how Germany's litigation market is evolving: "Germany is experiencing rapid expansion in the litigation funding market, with a growing number of cases and budgets across various legal areas." As Germany sees increased activity in litigation funding, particularly in private enforcement of antitrust claims and corporate scandals, the landscape is becoming more competitive. This growth is not just in numbers but also in the sophistication of funding strategies and market segments. If you would like to initiate a conversation with the team, who also serve the Austrian and Swiss markets, please connect directly with Dr. Malte Stübinger, Tim Willing and Patrick Rode. Plus, the team also authored an associated chapter which focuses on third-party funding in Austria, which will be shared very soon. 🔍 Explore the growth trends in Germany's litigation funding market by reading Malte and Tim's full Lexology 'Third Party Litigation Funding: Germany' chapter. You can access the full In-Depth: Third Party Litigation Funding publication through this exclusive Deminor link for a limited time: https://lnkd.in/gN32MQdw #LitigationFunding #Germany #LegalTrends #CommercialLitigation

37

Consent Withdraw The decision of the Higher Regional Court (OLG) of Koblenz on July 31, 2024, in the case 4 U 238/23 illustrates an interesting exception in #data #protection #law, particularly regarding the revocation of #consent. Although Article 17 of the #GDPR generally protects the right to withdraw consent for the processing of personal data, this case demonstrates that there can be situations where revocation is excluded. 🎦 In the case at hand, consent for the publication of #videos made during company events was based on two legal foundations: the GDPR and the German Copyright Act for Works of Art (#KunstUrhG). It is particularly noteworthy that the consent declaration explicitly stated that once given, it could no longer be revoked. This creates a special case, as the possibility of revocation usually exists. 📚 The decision of the #OLG Koblenz thus shows that, in individual cases, it depends on how the consent declaration is structured and whether there are specific legal provisions that limit the right of revocation. The interaction between the GDPR and national laws such as the KunstUrhG can also play a role here. 💡This case highlights the importance of a precise and individualized review of the consent situation, especially when different legal norms are involved. #DPO should therefore carefully consider the wording in consent declarations and examine their scope. https://lnkd.in/eSDxz92J

6

2 Kommentare

🚀 𝗘𝘅𝗽𝗹𝗼𝗿𝗶𝗻𝗴 𝗖𝗼𝗿𝗽𝗼𝗿𝗮𝘁𝗲 𝗩𝗲𝗻𝘁𝘂𝗿𝗲 𝗦𝘁𝘂𝗱𝗶𝗼𝘀: 𝗠𝗶𝗻𝗶-𝗣𝗮𝗽𝗲𝗿 𝟭/𝟱 🚀 Introducing our new whitepaper series: 𝗧𝗵𝗲 𝗖𝗼𝗿𝗽𝗼𝗿𝗮𝘁𝗲 𝗩𝗲𝗻𝘁𝘂𝗿𝗲 𝗦𝘁𝘂𝗱𝗶𝗼: 𝗔𝗻 𝗘𝗳𝗳𝗲𝗰𝘁𝗶𝘃𝗲 𝗦𝗰𝗮𝗹𝗶𝗻𝗴 𝗣𝗹𝗮𝘁𝗳𝗼𝗿𝗺 𝗳𝗼𝗿 𝗡𝗲𝘄 𝗕𝘂𝘀𝗶𝗻𝗲𝘀𝘀 𝗖𝗼𝗺𝗺𝗲𝗿𝗰𝗶𝗮𝗹𝗶𝘇𝗮𝘁𝗶𝗼𝗻 - created in collaboration with the Global Law Firm Dentons in Deutschland. 𝗪𝗵𝘆 𝗱𝗶𝗱 𝘄𝗲 𝗽𝗮𝗿𝘁𝗻𝗲𝗿 𝘄𝗶𝘁𝗵 𝗗𝗲𝗻𝘁𝗼𝗻𝘀 𝗼𝗻 𝘁𝗵𝗶𝘀 𝘀𝗲𝗿𝗶𝗲𝘀? By combining V_labs' commercial and business-building expertise with Dentons' extensive experience in advising growth companies on corporate law, finance, IP, and more, we aim to deliver a powerful guide to navigating the complexities of scaling new ventures. 📈 The purpose of this series is to provide a framework for making corporate innovation efforts more effective while properly managing the risks involved. To cover the full breadth of the venture studio model, we have divided this series into five parts. 📚 𝗣𝗮𝗿𝘁 𝟭: 𝗪𝗵𝘆 𝘁𝗵𝗶𝗻𝗸 𝗮𝗯𝗼𝘂𝘁 𝗮 𝘀𝘁𝘂𝗱𝗶𝗼? In this first chapter we explore why establishing a #CorporateVentureStudio is essential for companies looking to drive innovation and scale new businesses: 🔹 Insights from 50+ executives on navigating innovation challenges 🔹 Why venture studios offer a more efficient path to new business growth 🔹 Foundational steps for setting up a successful studio 💡 𝗗𝗼𝘄𝗻𝗹𝗼𝗮𝗱 𝗣𝗮𝗿𝘁 𝟭 𝗻𝗼𝘄! [𝗟𝗶𝗻𝗸 𝗶𝗻 𝗰𝗼𝗺𝗺𝗲𝗻𝘁𝘀] Stay tuned for the next chapters, packed with valuable insights! 🔔 #CorporateInnovation #VentureStudios #InnovationStrategy

18

1 Kommentar

JUSTICE OPERATION MEETS LEGAL DESIGN: How to create Innovation with Impact for the Justice System   What can the justice sector learn from the private sector? Concepts like Legal Operations and Legal Design have been driving innovation in corporate legal departments for years. But how can these approaches be applied to benefit justice? At the 3rd Digital Justice Summit 2024 on November 25–26, experts from business and innovators in the justice sector will discuss exactly these questions:   Is there a need for Justice Operations? How and where does Legal Design, as a user-centered approach to innovation, come into play? What success stories exist – and where does innovation struggle?   Featuring: Astrid Kohlmeier, Isabelle Biallaß, Stefanie Otte, and Bernhard Waltl from the Liquid Legal Institute, sharing insights and experiences on the future of justice innovation.   Let’s explore how the justice system can benefit from modern innovation concepts and what it takes to create real impact!

27

📢 Update from the Unified Patent Court (UPC)! As of the end of July, the UPC has reported significant progress in its operations: 🔹 Language Shift: Over half of the proceedings are now conducted in English, surpassing other languages. This shift highlights the increasing preference for English in international legal settings. 🔹 Case Volume: Since its launch on June 1, 2023, the UPC's courts of first instance have handled 447 cases. This includes a mix of infringement actions and counterclaims for revocation, showing robust activity in patent litigation. At isarpatent®, we are closely monitoring these developments. The shift to English proceedings and the high volume of cases underscore the importance of strategic patent litigation and defense. Our team is here to help you navigate these changes and ensure your intellectual property is well-protected. Stay informed and prepared with isarpatent®, by your side. 🌐 Learn more about our services: https://lnkd.in/e_ZHyAhx #PatentLaw #IntellectualProperty #UPC #LegalUpdates #isarpatent

7

💻 NRP 77 in the Media: SRF Echo der Zeit spotlights the project "Open Justice vs Privacy". In the feature the researchers Matthias Stürmer, Daniel Kettiger, and Magda Chodup discuss their research work aimed at finding solutions for how courts can grant access to judicial documents without violating the right to privacy. They investigated whether individuals could be identified using publicly available data, based on court cases. In the SRF interview, Matthias Stürmer said: "𝗙𝗼𝗿𝘁𝘂𝗻𝗮𝘁𝗲𝗹𝘆, 𝘄𝗲 𝗱𝗶𝗱 𝗻𝗼𝘁 𝘀𝘂𝗰𝗰𝗲𝗲𝗱. AI is not yet that advanced. However, the threat is becoming increasingly real." To the SRF radio feature (in german): https://lnkd.in/d2MTmURG Learn more about the research project “Open Justice vs Privacy”: https://lnkd.in/eyATAE_i As part of the National Research Programme NRP 77, an additional 45 project teams are researching various topics related to the "digital transformation." An overview of all research projects can be found here: https://lnkd.in/eU4CAQra Andreas Lienhard Sibilla Bondolfi Image source: SRF - Schweizer Radio und Fernsehen #research #science #justice #pricacy #court #judgements #nrp77

11

The Austrian Ministry of Justice has published a draft bill on the implementation of the Public Country-by-Country Reporting (CbCR) Directive). This directive mandates that (i) EU-based MNEs, and (ii) non-EU based MNEs doing business in the EU through a branch or a subsidiary, with total consolidated revenues (in each of the last 2 consecutive financial years) above EUR 750 million should publicly disclose certain corporate income tax information. The implementation bill shall apply to financial years beginning after 21 June 2024. The Austrian draft provides for fines of up to EUR 100,000 in the event of violations of the disclosure obligations. It is still subject to approval by the two houses of the Austrian Parliament. Read more here: https://lnkd.in/dnMu96Kx #tax #accounting #Austria #wolftheiss

1