On 29 July 2019, the Court of Justice of the European Union delivered its judgments in three eagerly awaited cases, Pelham, Spiegel Online and Funke Medien, which all relate to the relationship between copyright and (other) fundamental rights. Specifically, an issue arising in these cases is whether the EU copyright acquis allows for fundamental rights to be invoked as an autonomous ground for limiting a copyright, outside of the mechanisms incorporated in the Copyright Directive for that purpose. In its judgments, the Court rejects this possibility and instead locates the role for fundamental rights in the interpretation and implementation of the exceptions and limitations of the Directive. We argue that-while this may render satisfactory results in the great majority of casesin exceptional cases the CJEU's approach towards balancing copyrights and fundamental rights could be at odds with the approach of the European Court of Human Rights, which might reduce the legal certainty sought after by the CJEU. Lastly, we consider the implications of that potential tension for the judicial authorities and other actors within the domestic legal orders of the EU Member States.
The Chinese New Silk Road initiative offers unique opportunities for setting up Sino-European research collaborations. Academic cooperation between countries that are rooted in completely different legal, cultural, and academic backgrounds might however also create new challenges. This article investigates the impact of these differences in the field of the protection of personal data, which is a topic that is currently high on the EU's agenda. Whereas the protection of personal data is engrained in the European Union's legal framework, this is not the case in China. This might be problematic, given the fact that scientific collaboration often entails the exchange of (sensitive) personal data. We explore to what extent the General Data Protection Regulation still allows the transfer of such data for scientific purposes to China. After having analyzed the Chinese system in light of the European legislation, we conclude that the sharing of personal data with China is challenging at a minimum. Until more stable legal arrangements are set up in order to facilitate such practices, it is important to share only anonymized data or to acquire consent of the data subject.
In the EU, the complex relationship between copyright and fundamental rights is accommodated in inter alia the Copyright Directive, which uses an internal system of exhaustive exceptions and limitations to copyright. However, it remains unclear whether fundamental rights can serve as autonomous grounds for limiting a copyright. Recently, the German Federal Supreme Court referred preliminary questions to the CJEU in the so-called Afghanistan Papiere case in order for the CJEU to address this unclarity. To sketch the context in which these questions have to be answered, this article explores the tension between copyright and fundamental rights in the EU legal order and identifies the boundaries of the system of exhaustive exceptions and limitations. After describing the EU legislative framework, it offers a typology of the CJEU's case law, before moving onto the ECtHR's Ashby Donald judgment, in which the issue of balancing copyright and other fundamental rights was addressed. It follows that whereas the Copyright Directive and the CJEU do not seem to allow for an external role for fundamental rights, this exact role seems to be required by the ECtHR for certain types of cases. This difference is assessed in light of the relationship of the two courts, which is essentially characterised by a need to prevent divergence between them. It is argued that the pending preliminary questions can probably be answered using the internal system of the Copyright Directive, but that they clearly indicate the limitations and problems connected to the CJEU's current approach towards copyright and fundamental rights.
This book presents the outcomes of the research project on “The New Silk Road: Implications for higher education and research cooperation between China and Europe.” It addresses questions regarding how academic mobility and cooperation is taking shape along the New Silk Road and what difference it will make in the global higher education landscape. It presents a rich collection of contributions by scholars from Europe, China, the USA, Russia, and Australia, combining perspectives from anthropology, computer sciences, economics, education, history, law, political science, philosophy, science and technology studies, sinology, and sociology. Introductory chapters present the global context for the NSR, the development of Chinese universities along international models, and the history and outcomes of EU–China cooperation. The flows and patterns in academic cooperation along the New Silk Road as they shape and have been shaped by China’s universities are explored in more detail in the following chapters. The conditions for Sino-foreign cooperation are discussed next, with an analysis of regulatory frameworks for cooperation, recognition, data, and privacy. Comparative work follows on the cultural traditions and academic values, similarities and differences between Sinic and Anglo-American political and educational cultures, and their implications for the governance and mission of higher education, the role of critical scholarship, and the state and standing of the humanities in China. The book concludes with contributions focusing on the “Idea of a University”; the values underpinning its mission, shape, and purpose, reflecting on the implications of China’s rapid higher education development for the geo-politics of higher education itself.
The New Silk Road initiative offers unique opportunities for setting up Sino–European collaborations in higher education and research. Academic cooperation between countries that are rooted in different legal, cultural, and academic backgrounds might, however, also create challenges. Although the European Union is strongly promoting Open Science and—within that framework—open and fair data, it is clear that Open Science is only possible in an open society, in which fundamental rights and freedoms of individuals are protected. In this light, the chapter investigates the implications of the European personal data protection rules (GDPR) for Sino–European collaborations. To what extent are free flows of personal data possible on the New Silk Road? It concludes that the current differences between both regimes create considerable obstacles on the Road. The chapter explores the necessary restrictions, technological solutions, and legal arrangements that might be helpful in facilitating collaborations that comply with the European rules.
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