*Recap: 4. IT-Rechtstag @ Infolaw.at

For the fourth time Infolaw.at and the team of Prof Dr Wiebe hosted the IT-Rechtstag in Vienna last month. The event lasted two days (17th, 18th of June), was packed with great speakers from Germany and Austria and covered a wide range of topics. After a short welcome speech by Wiebe, Spindler in his keynote managed to touch upon pretty much all aspects of law related to IT&IP in just less than 45 minutes.

Spindler already made clear at the beginning of his talk  that the issue of copyright law is so disputed on an EU level and that it is not realistic to expect the EU to issue any legal actions in the close future (‘It’s a closed job‘). In this context Spindler also explained the term Bus-Gesetz’ (‘coach-law‘), referring to the practise of hiding important legal matters somewhere in the ‘back‘ of a long, generally irrelevant law, hoping that everybody in the parliament will already have fall asleep before the issue is mentioned. Thus laws can be issued that would otherwise never have passed through parliament. Spindler briefly discussed the BGH’s thumbnail decision and its idea of implied consent by the website owner, as well as how & where such consent could be searched for on a website. Furthermore, Spindler highlighted that in this decision the BGH apparently has introduced the principle of Fair Use & Weighting of Interests into German copyright law. Concerning downloading, Spindler discussed if the download of copyrighted material is already being prosecuted in Germany and if the ‘Schranken‘ (‘limitations‘) in German copyright law are more and more interpreted in favour of the user. The issue of orphan works however might be regulated by the EU, which would be of great importance & beneficial for e.g. Google Books as the draft is similar to the liberal Scandinavian system. Concerning the reselling of software Spindler was sceptical if this was allowed, but indicated that this issue, due to the pressure of the industry, could soon be regulated by law. Concerning the Enforcement Directive and the question of whether providers have to answer inquiries by copyright holders, Spindler talked a bit about “quick freeze“, which apparently works quite well, and discussed briefly the respective (contradicting) decisions of the OLG Frankfurt and the OLG Hamburg. Spindler then briefly touched upon the issue of online liability and the ECJ applying the ‘country of origin principle‘. A reference for preliminary ruling from the UK might however clarify the whole issue (at some point).

The subsequent speakers (Wallentin/Reis) provided an excellent overview of the apparently exploding numbers of TV-internet combinations and highlighted areas which could be of legal relevance in this context.

After a short, precise and stunningly informative talk on the issue of Web 2.0 and copyright law by Völtz, Kreutzer gave a brilliant but highly provocative presentation, in which he questioned the principle of current copyright laws.

The panel discussion at the end of the first day (Kommenda / Blocher/ Kofler/ Kucsko / Medwenitsch) was indeed interesting, but once again showed that, although the positions of the media industry and of user rights activists are miles away of each other, both are longing for rules which would make it easier for the individual to at least know when they are infringing rights. One quote  however impressed me:

As children we used to walk through the woods and later back home we played/reassembled/worked with the materials we had found in the woods. When children nowadays browse through the internet and try to do pretty much the same, they infringe copyrights. (What about god’s copyright on ‘creation’ ;)

“We don’t need author’s rights because we have a welfare state“.

The second day started with talks about cloud computing (a buzz word?). The way I’ve understood it, ‘cloud computing‘ is not a new phenomenon, but what is novel is its dimension as more and more small and mid-size businesses are starting to outsource their IT-infrastructure. Knyrim held an interesting presentation on the privacy aspects of ‘remarketing‘ and in this context elaborated on the issue of whether or not IP-addresses should be seen as personal data (hint: yes!).

Stomper-Rosam in her presentation spoke about the legal admissibility of user-tracking software and services. Although I really enjoyed her talk, I would have appreciated it if she had elaborated a bit more the technical aspects and maybe differentiated between services that receive payment for tracking uses (Statcounter; the counting software this blog is using) and services which don’t charge their users but finance themselves (Google Analytics) through the data gained by analysing the users’ behaviour, as the first in my opinion offer a service to their client, while the second actively conducts marketing research and thus should not be covered by the liability exemption.

One highlight of the event for sure was the talk by Tschol (Ludwig Boltzmann Institute of Human Rights, Vienna), who not only spoke about the implementation of Directive 2006/24/EC (‘Data Retention Directive’) on behalf of the Austrian Federal Ministry of Transport, Innovation and Technology, but also explained the current legal environment of online surveillance in Austria.

To cut a long story short, the institute Tschol is working for is a human rights institute and thus in Austria an independent human rights research centre was asked to draft the implementation of the directive. What makes the whole issue even more interesting is that Tschol and his team not only drafted a law which they themselves think will soon partly be found to violate human rights, but they used this implementation as a chance to ‘revamp‘ the existing legislation in this field. Even when parts of the implementation are found to violate human rights, the violating aspects of the provisions can easily be dropped through the use of a ‘predetermined breaking point‘ (‘Sollbruchstelle‘), while the rest of the law will remain in force, significantly improving the position of human rights and online privacy protection in Austria.

To sum it all up, the IT-Rechtstag has, once again, proven to be the most important and interesting IT Law event in Austria and I’d like at this point to thank the team of Wiebe (esp. Appel/Heidinger) for organizing it.


Personal comment: Although I think that Kreutzer’s speech was definitely one of the highlights of the event, it soon became just too obvious that most of the audience was not used to the presentation of ideas in such a provocative and challenging way and I was unpleasantly surprised to notice the high level of intolerance in the audience against new concepts and ideas. Thus e.g. the speaker’s talk was not only repeatedly interrupted by members of the audience impolitely adding emotional & utterly pointless remarks, but went as far asking the speaker to justify the source of the image material (open source) used. I can’t image anything like that happening at a conference in the UK …

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