Streaming, time-shifting and open data: some new articles in IJLIT

The International Journal of Law and Information Technology (IJLIT), published by Oxford University Press, is one of those journals which, while not directed at the intellectual property community, often features articles that are of relevance to it and which can easily be overlooked when IP enthusiasts engage in research and debate.  A couple of contributions that should be of great relevance to the copyright community have been published in IJLIT's most recent issue, for Spring 2015, which is now available online.  They are as follows:

"Whither the future of internet streaming and time-shifting? Revisiting the rights of reproduction and communication to the public in copyright law after Aereo", by the Singaporean pairing of Saw Cheng Lim and Warren B. Chik. According to the abstract:

New forms of communication technology often pose challenges to the copyright regime and have necessitated the rewriting of the scope of the exclusive rights and exceptions by the legislature, and, in some cases, by the courts in common law countries (as well as the Court of Justice of the European Union). These issues have arisen in different categories of digital technology, albeit with the same objective of streamlining and simplifying the delivery of copyright works to consumers. These categories include file storage and transfer operations offered by Peer-to-Peer technology, the space- and time-shifting functions of the early video and audio recording products, user-generated and industry content deliverable via new media streaming platforms, the ‘live’ streaming and time-shifting services offered by remote and wireless digital recording systems, file storage and sharing digital lockers and cloud technology. 

This article will examine the legality of Internet streaming and time-shifting technologies under copyright law, specifically in relation to the rights of ‘reproduction’ and ‘communication to the public’, through a comparative analysis of the jurisprudence in leading jurisdictions in recent times. Although the decisions are not always consistent, they do provide some helpful guidance in our assessment of the relative strengths and weaknesses of the various arguments made on both sides of the divide as well as of the prevailing judicial sentiment towards new technologies. In light of the continuing legal uncertainty faced by such technologies, the authors also offer suggestions as regards legislative amendments and alternative business models to ensure their continued existence in this harsh and highly competitive digital environment.

"The paradoxes of open data and how to get rid of it? Analysing the interplay between open data and sui-generis rights on databases" by an academic, Primavera De Filippi, and internet freedom activist Lionel Maurel. According to the abstract:

Open Data is an important public policy that contributes to achieving greater transparency and broader access to information, more citizen participation and engagement, while also supporting innovation and economic growth. The pace at which the Open Data movement is spreading in different fields of endeavour can be taken as an illustration that society is evolving towards greater openness, transparency and accountability. Yet several constraints and legal uncertainties subsist beyond the façade of Open Data. 

This article investigates different layers of rights that regulate the use and re-use of data: from the copyright vesting in the content and/or structure of a particular dataset, to the sui-generis right protecting against the substantial reproduction and/or extraction of the content of a database. The objective is, ultimately, to illustrate the conflictual relationship that subsists between the underlying principles of Open Data, which purports to promote the free use and re-use of information, and the underlying legal system, whose provisions are increasingly relied upon to establish an exclusive right on public sector information.