Anti-Suit Injunctions, FRAND Policies and the Conflict between Overlapping Jurisdictions

Numerous courts worldwide consider themselves competent to determine the FRAND compliance of global SEP license agreements and to set worldwide FRAND rates. A court deciding a FRAND case involving a global FRAND rate may issue an injunction which prohibits the filing or enforcement of an action in another jurisdiction (anti-suit injunction, hereinafter ‘ASI’). The parties litigating in the courts of another country may request this court to enjoin the filing or execution of the ASI – (anti-anti-suit injunction, hereinafter ‘AASI’). This article argues that the extraterritorial effects of both ASIs and AASIs may unduly impede court proceedings. However, ASIs and AASIs may in certain cases legitimately protect the interests that sovereign states have in undisturbed court proceedings. Self-restraint should be exercised because each ASI/AASI contains the risk of escalation. The article gives guidelines as to under which conditions ASIs/AASIs may be issued and accepted by the courts. It also aims to raise awareness among policymakers so that internationally binding rules which ease the conflicts may be implemented.

END-USER FLEXIBILITIES IN CONTEMPORARY DIGITAL COPYRIGHT LAW – AN EMPIRICAL ANALYSIS OF END-USER LICENSE AGREEMENTS

In the platform age, copyright protected contents are primarily disseminated over the internet. This model poses various challenges to the copyright regime that was mainly designed in and for the analogue age. One of these challenges is related to the fair balance between the interests of rightholders and other members of the society. Copyright norms try to guarantee the high level of protection of rightholders and preserve some flexibility for the benefit of end-users. These flexibilities range from statutory limitations and exceptions (e.g., private use); resales (covered by the doctrine of exhaustion); or complaint-and-redress mechanisms. Platforms, with their private norms, especially end-user license agreements (EULAs), might effectively enforce that balance in their role as intermediaries in the chain of (e-)commerce. In our research, conducted within the frames of the „reCreating Europe” H2020 project, we focused on how these private norms allow for or diminish the exercise of user flexibilities. We collected, analysed and compared twenty private ordering practices. The analysed platforms include streaming sites with or without host function for end-users; online video game stores and other online marketplaces; and social media. Our empirical examination demonstrates that the intermediaries, in line with their technical nature and business model, offer substantive flexibilities for their consumers, on the one hand, and they meaningfully limit the possibilities and decrease the expectations of end-users by restricting certain uses and providing limited access to contents, on the other hand. Based on our findings, we measured the user-friendliness of the selected platforms.

Protecting IP Licenses and Jointly Owned IP in the Age of COVID-19: Insolvency and Force Majeure Events under Japanese Law

This article provides an overview and discussion of a multitude of issues that are relevant for IP licensing under Japanese law. The authors recap the results of the legislative process that predominantly addressed the IP licensee’s position in the case of a licensor's insolvency, including the 2020 amendment to the Japanese Copyright Act, and examine whether a comprehensive reform of IP licensing regulations in Japan would be preferable to also offering better protection to trademarks, trade secrets and data licensees. Given that Japanese companies often agree on jointly owning IP generated in the process of software development and other co-development projects, we analyze the risks of joint ownership compared to non-exclusive licenses. To further illustrate such risks that may be even more significant in cross-border constellations, we conduct a comparative study on the actions that a party commissioning the development of new software can take without obtaining the software developer’s consent under Japanese, US and German patent and copyright law. Furthermore, we examine certain unresolved issues that may arise in the case of a party’s insolvency or the impact of force majeure events, and provide suggestions on how to address these when drafting and negotiating IP license agreements.

Legal regulation of the license agreement

The legal regulation of the license agreement is considered. Its contractual construction is investigated. The norms of the Civil Code of Ukraine and other normative legal acts on determining the essential terms of the license agreement are analyzed and it is clarified, which conditions must be agreed by the parties in order for the license agreement to be considered concluded. The scientific analysis of the legal nature of the license agreement in the system of civil law agreements is carried out. The objective essential conditions and features of concluding a license agreement are revealed. The subject and terms of the contract are considered. The rights and responsibilities of the licensor and the licensee are analyzed. The advantages of each party of the contract are determined. The civil law aspects of regulation of contractual license relations are investigated. The legal nature of the license is determined. The classification of license agreements has been carried out. The analysis of the current legislation in the field of granting property rights to the results of intellectual activity is carried out. The essential conditions of the agreement on creation on the order and use of the object of intellectual property rights and the agreement on transfer of exclusive property rights of intellectual property are investigated. The relationship between the license and the license agreement has been clarified. Recommendations on the structure of license agreements and advice on their content and method of presentation are provided. Conclusions and proposals, aimed at improving civil legislation in the field of legal regulation of license agreements, are formulated. It is concluded, that the license agreement is a fair mechanism for obtaining remuneration for the creation or acquisition of intellectual property

IP Licensing Contracts in Italy ‒ Royalty Rate Determination and Dispute Resolution Clauses

The present work is aimed at exploring IP license agreements under Italian law, with a focus on trademark licensing in the fashion, cosmetics and perfumery sectors, as well as on patent and know-how licensing in the pharmaceuticals industry. In particular, we will address the issue of royalty rate determination and dispute resolution clauses, which constitute key elements of a license agreement. These clauses will be analyzed in light of the above-mentioned fields of interest, in order to show how IP contractual tools may vary, in consideration of a particular sector. Moreover, the article tries to combine the legal analysis with the economic implications for business and entrepreneurs. The fact is that license agreements are business-oriented contracts, the study of which is particularly useful for understanding how and to what extent an IP agreement may influence and even shape, in some cases, a whole sector, as we will see with, for example, the perfumery sector.

Analytics in the publication of a scientific journal

It is shown that the analysis of editorial and publishing processes helps to estimate the time of passing manuscripts in the editorial office of a scientific journal and to control the contractor when performing technical work on literary editing and layout of articles in the journal. For analytics, the apparatus of probability theory and mathematical statistics is used, as well as time series for predicting the dynamics of incoming articles and predicting the prospects for their publication. Based on the results obtained, it is shown that the study of time indicators of the processes of arrival and acceptance of articles for publication, reviewing, literary editing, layout and distribution and receipt of license agreements allows you to plan the work on the filling of articles in journal issues for the year ahead, monitor the work of reviewers on the examination of articles sent to them and manage the contractor preparing issues for publication, when performing technical work. All the considered analytical methods are available for use by the editors of the scientific journal. To simplify the compilation and work with the proposed analytics tools, we recommend software for working with spreadsheets.