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Eleonora Rosati

About me

An Italian-qualified lawyer (avvocato), I am Professor of Intellectual Property Law, the Director of the Institutet för Immaterialrätt och Marknadsrätt / Institute for Intellectual Property and Market Law (IFIM), and the Co-Director of the LLM in European Intellectual Property Law.

Recognition

  • Included in World Intellectual Property Review's 2020 list of 'Influential Women in IP'. The list is based on nominations from readers across the globe on who they regard as women in law who play a vital role in advancing the intellectual property industry and challenging the existing status quo.
  • Included in Managing Intellectual Property's 2018 list of 'The 50 Most Influential People in IP' and considered “an influential voice in the IP industry". The list recognizes individuals who are shaping intellectual property law, policy and business throughout the world. It has typically included an array of in-house counsel, judges, officials and academics, as well as celebrities who have had a particularly big recent impact on intellectual property.

Academic background

I hold law degrees from the University of Florence, an LLM from the University of Cambridge, and PhD from the European University Institute.

  • European University Institute: PhD (thesis title: Originality in EU Copyright Law), 2009-2012
  • University of Cambridge: LLM, 2008-2009
  • University of Florence: 'Laurea Specialistica in Giurisprudenza’ Law Degree, 2006-2008
  • University of Florence: 'Laurea in Scienze Giuridiche’ Law Degree, 2003-2006

Visiting Scholar

Conferences and Seminars

Please see here for a list of the most recent conferences and seminars I have been a speaker at and here for the events that I have organized or co-organized.

Outreach

Professional Roles

In the Media

Because of my copyright and IP expertise, I have been often interviewed by leading general interest media publications, including – recently – CNNThe New York TimesThe Financial TimesBBCThe Hollywood ReporterThe Guardian.

Teaching

Research

Overview

My research interests and activities relate to intellectual property law, with a special focus on the EU and national dimensions thereof.

Areas of activity include: the process and result of EU copyright harmonization and the role of the Court of Justice of the European Union (CJEU); rights enforcement over the internet and the role and liability of online intermediaries; fashion and intellectual property; questions of international jurisdiction and applicable law in online infringement cases; EU trade mark law; overlapping rights; EU copyright reform policy discourse.

I am the author of:

I also edited The Routledge Handbook of EU Copyright Law (Routledge:2021).

Finally, I am a long-standing contributor to award-winning IP blog The IPKat, for which I have authored over 1,000 posts over the past several years.

Impact and Dissemination

I have been contributing to several policy debates in my own key areas of expertise as an independent commentator.

Besides being asked – by, inter alia, the European Parliament, the European Intellectual Property Office, and the World Intellectual Property Organization – to produce a number of technical briefings and reports, I have been invited to attend official hearings with EU institutions and agencies (World Intellectual Property Organization, European Parliament, European Commission, European Union Intellectual Property Office, and European Audiovisual Observatory) and governments.

I have presented my research as an invited speaker at several academic institutions and conferences around the world. I have prepared delivered talks at the request of international organizations and EU institutions and agencies, as well as international professional bodies and organizations (including ALAI, INTA, AIPPI, LIDC, and ECTA).

Research Funding

I have secured funding for my research on several occasions. I have received publication prizes from Stiftelsen Juridisk Fakultetslitteratur and grants from both major stakeholders – including the International Federation of the Phonographic Industry, Facebook, and Audible Magic – and non-profit organizations and public bodies – including Wikimedia and Società Italiana Autori ed Editori.

PhD Supervision

I welcome PhD proposals in the fields of copyright, trade mark, fashion, and internet laws.

Publications

A selection from Stockholm University publication database

  • Copyright in the Digital Single Market

    2021. Eleonora Rosati.

    Book

    In 2019, the EU legislature adopted Directive 2019/790 on copyright in the Digital Single Market. The Directive is supported by a multi-faceted rationale and represents one of the most significant and ambitious EU harmonization efforts in the copyright field so far.

    This book provides an article-by-article commentary to all the provisions of the Directive. It is the first and – so far – only book entirely devoted to Directive 2019/790.

    By analyzing the history, objectives, and content of each and every provision, as well as the relationship between some of those provisions and between the Directive and the pre-existing acquis, this book provides a rational, consistent and detailed explanation of the Directive as a whole and of its individual contents. It is a travel companion to all those who wish or need to navigate the legislative provisions that were adopted in 2019 to make EU copyright fit for the “digital single market”.

    Read more about Copyright in the Digital Single Market
  • The Routledge Handbook of EU Copyright Law

    2021. Eleonora Rosati.

    Book (ed)

    The Routledge Handbook of EU Copyright Law provides a definitive survey of copyright harmonization in the European Union, capturing the essential and relevant issues of this relatively recent phenomenon. Over the past few years, two themes have emerged: one the one hand, copyright policy and legislative initiatives have intensified; on the other hand, the large number of references to the Court of Justice of the European Union has substantially shaped the EU copyright framework and, with it, also the copyright framework of individual EU Member States

    This handbook is a detailed reference source of original contributions which analyze and critically evaluate the state of EU copyright law with a view to detecting the key trends and patterns in the evolution of EU copyright, weighing the benefits and disadvantages of such evolution. It covers a broad range of topics through clusters focused on: the history and approaches to EU copyright harmonization; harmonization in the areas of exclusive rights, exceptions and limitations, and enforcement; copyright policy and legacy of harmonization.

    With contributions from a selection of highly regarded and leading scholars in this field, the Routledge Handbook on European Copyright Law is an essential resource for students and scholars who are interested in the field of copyright law.

    Read more about The Routledge Handbook of EU Copyright Law
  • Copyright at the CJEU: Back to the start (of copyright protection)

    2023. Eleonora Rosati. Developments and Directions in Intellectual Property Law. 20 Years of The IPKat

    Chapter

    In its 2009 decision in Infopaq (C-5/08), the Court of Justice of the European Union (CJEU) achieved a landmark result: the de facto, horizontal harmonization of the originality requirement. After that, nothing could stay the same. 

     After providing an overview of the harmonization process in the copyright field over the past 30 years or so and, with that, the environment in which Infopaq came to be, this chapter considers Infopaq and the expansive effect of subsequent case law on other copyright subsistence requirements. The analysis also notes how the eventual outcome of Cofemel (C-683/17), insofar as works of applied art are concerned, is perfectly in line with such a jurisprudence. The chapter further considers the legal and institutional difficulties that such a string of CJEU decisions has given rise to and is yet to resolve before concluding that further questions are likely to be posed to the CJEU in the not too distant future. In other words: the construction of EU copyright is far from over. 

    Read more about Copyright at the CJEU: Back to the start (of copyright protection)
  • The Louboutin/Amazon cases (C-148/21 and C-184/21) and primary liability under EU trade mark law

    2022. Eleonora Rosati. European intellectual property review (7)

    Article

    In Louboutin/Amazon (C-148/21 and C-184/21), the Court of Justice of the European Union (‘CJEU’) has been requested to determine whether and, if so, at what conditions the operator of an online marketplace (a hybrid marketplace) may be found liable under Article 9(2) of the EU Trade Mark Regulation 2017/1001 for the display of advertisements and the delivery of infringing goods that are offered for sale and placed on the market upon the initiative and under the control of independent sellers that avail themselves of that operator’s services.

    This opinion piece addresses the broader context against which these joined cases will need to be assessed and concludes that the operator of an online marketplace like the one described by the referring courts should not be held directly liable for trade mark infringement. As such, the CJEU should answer all referred questions in the negative. Holding otherwise would not only be contrary to settled case law of the Court itself, but would also unduly broaden the scope of application of the EU primary liability regime for trade mark infringement.

    Read more about The Louboutin/Amazon cases (C-148/21 and C-184/21) and primary liability under EU trade mark law
  • Linking and copyright in the shade of VG Bild-Kunst

    Eleonora Rosati. Common market law review

    Article

    In VG Bild-Kunst, the Grand Chamber of the ECJ has expressly held, for the first time, that

    linking to a copyright work lawfully published on a third-party website may be restricted

    through contract and not solely through technical restrictions on access (for instance, a

    paywall). To this end, however, the concerned rightholder is required to adopt or mandate

    the adoption of effective technological measures. Lacking these, an unauthorised act of

    linking shall not be infringing. The judgment has important implications for the construction

    of the right of communication to the public in the InfoSoc Directive 2001/29 and its

    application to online scenarios, as well as for the interpretation of provisions in other EU

    copyright directives, including the DSM Directive 2019/790. It also raises questions

    regarding the compatibility of the Court’s reasoning with key tenets of copyright law, such

    as the no formalities rule in the Berne Convention, and the prohibition of exhaustion of this

    economic right.

    Read more about Linking and copyright in the shade of VG Bild-Kunst
  • The Digital Services Act and Copyright Enforcement: The case of Article 17 of the DSM Directive

    2021. Eleonora Rosati. Unravelling the Digital Services Act Package, IRIS Special, 2021/1

    Conference

    In late 2020, the European Commission unveiled its Proposal for a Digital Services Act (DSA). Once adopted, the DSA may confirm the core principles of the ‘safe harbour’ regime for certain information society service providers (ISPs, as well as the prohibition of general monitoring as currently found, respectively, at Articles 12 to 14 and 15 of the e-Commerce Directive.201 It may also uphold the removal of any disincentives to proactive behaviours of ISPs in accordance with its “Good Samaritan” approach, as well as enhance fairness, transparency, and accountability with regard to certain digital services’ moderation practices.

    At a first and formal glance, the DSA Proposal and the EU copyright framework, including the 2019 Directive on copyright and related rights in the Digital Single Market (DSM Directive) belong to two separate worlds: recital 11 and Article 1(5) of the former expressly state that it shall be without prejudice to EU rules in the copyright and related rights field. It follows that, among other things, the DSM Directive and the regime contained in its Article 17 shall be regarded as lex specialis to the DSA (once adopted), on the consideration that they relate specifically to copyright infringements andbecause they apply to a sub-set of online platforms, that is, online content sharing service providers (hereinafter, OCSSPs).

    All the above said, however, it would be both superficial and erroneous to think that the DSA will not affect the interpretation and application of Article 17 of the DSM Directive. The eventual shape of the DSA will be of great relevance to inter alia determining when the regime in Article 17 applies in the first place, to whom, and how.

    Read more about The Digital Services Act and Copyright Enforcement: The case of Article 17 of the DSM Directive
  • When does a communication to the public under EU copyright law need to be to a ‘new public’?

    2020. Eleonora Rosati. European Law Review

    Article

    This article analyses CJEU case law on the notion of ‘new public’ in the context of the right of communication to the public in EU copyright law, with a focus on Article 3(1) of the InfoSoc Directive. It investigates its origin, use and development, as well as the justifications given for such use. By identifying for the first time four distinct groups of case law, the analysis shows how the role of the ‘new public’ has changed over time. If intended as a requirement, the ‘new public’ creates undue complexity in the reasoning of the CJEU in most instances. While others have suggested that the CJEU should disregard this notion altogether, this article proposes a less radical way for the CJEU to ‘escape’ the difficulties inherent to its own jurisprudence.

    Read more about When does a communication to the public under EU copyright law need to be to a ‘new public’?
  • What Does the European Commission Make of the EU Copyright Acquis When It Pleads Before the CJEU? The Legal Service’s Observations in Digital/Online Cases

    2020. Eleonora Rosati. European Law Review 45 (1), 67-99

    Article

    This is the first study entirely devoted to analysing the content of the European Commission’s observations in CJEU copyright referrals, with an emphasis on the online/digital dimension. It examines the Commission’s view of the EU copyright acquis in relation to economic rights, exceptions and limitations and enforcement, and evaluates it in light of international and EU law. The observations have been sometimes consistent with case law, but this has not been so in a number of topical instances. This contribution suggests that all this signals an (unsuccessful) attempt on the side of the Commission to persuade the CJEU to ‘depart’ from consolidated case law, justified more by policy considerations rather than a rigorous reading of the law and earlier jurisprudence.

    Read more about What Does the European Commission Make of the EU Copyright Acquis When It Pleads Before the CJEU? The Legal Service’s Observations in Digital/Online Cases
  • The absolute ground for refusal or invalidity in Article 7(1)(e)(iii) EUTMR/4(1)(e)(iii) EUTMD

    2020. Eleonora Rosati. Journal of Intellectual Property Law and Practice 15 (2), 103-122

    Article

    Among the absolute grounds for refusal or invalidity in EU trade mark law, there is one for signs that consist exclusively of ‘the shape, or another characteristic, which gives substantial value to the goods’.

    The ‘substantial value’ exclusion has received relatively limited attention and practical application. Some commentators have called for its abolition on consideration that other, clearer absolute grounds may perform its role without giving rise to those issues linked to its uncertain meaning and scope.

    This contribution reviews relevant EU case law on the substantial value ground in order to define rationales, scope and functions thereof. It submits that the substantial value ground performs a role—primarily that of preventing or limiting a distortion of the role of trade mark registration—which cannot be subsumed in other grounds. However, clearer guidance on certain fundamental aspects, including the role of the average consumer, reputation and the relevance of the behaviour of the trade mark applicant/owner, is still required.

    Read more about The absolute ground for refusal or invalidity in Article 7(1)(e)(iii) EUTMR/4(1)(e)(iii) EUTMD
  • Copyright as an obstacle or an enabler? A European perspective on text and data mining and its role in the development of AI creativity*

    2019. Eleonora Rosati. Asia Pacific Law Review 27 (2), 198-217

    Article

    Text and data mining (TDM) may be performed in a variety of fields and for different purposes. Among other things, TDM techniques may be used to ‘train’ Artificial Intelligence (AI), also for the purpose of AI-driven creativity. In this context, copyright restrictions might be in place, even if copies made of pre-existing content are only used internally and are instrument to the creation of something ‘new’. Recently, in the context of the Directive 2019/790 on copyright in the Digital Single Market, the EU legislature introduced two new mandatory exceptions for TDM.

    This contribution discusses the interplay between TDM and AI creativity by focusing, first, on the potential and technicalities of TDM and the interplay with legal restrictions. Second, it reviews the copyright-related issues facing TDM and the debate underlying the adoption of this new piece of EU legislation. Third, it reflects on the future of AI creativity in Europe.

    This article concludes that, even despite the adoption of two new mandatory TDM exceptions in the DSM Directive which are now to be transposed by individual EU Member States, copyright restrictions might continue affecting and restricting significantly the possibility of undertaking TDM activities in Europe.

    Read more about Copyright as an obstacle or an enabler? A European perspective on text and data mining and its role in the development of AI creativity*

Show all publications by Eleonora Rosati at Stockholm University