Brief IP news

briefs_1131. Celebrating Twenty Years of the WIPO Academy. for more information here.

2. A guide to managing intellectual property. For more information here.

3. Hey, DJ! Are you licensed to play that music? For more information here.

Source: Intellectual Property Center at the UNWE. More information can be found here


Breaking news – Youtube is liable for copyright infringement in Austria

organic-1280537_960_720.jpgThe Commercial Court of Vienna has issued a decision according to which YouTube is liable for copyright infringement of works uploaded by its users in Austria.

The case concerns allegations by the Austrian broadcaster Puls4 that its content was been uploaded without permission on Youtube.

The defensive position of Youtube was that the company operates in compliance with the requirement of the E-Commerce Directive according to which:

Article 14: Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

This option is possible only in the case of a “host provider”. The Vienna Court, however, based its decision on the European Court’s practice, which determines that there is no “host provider” when:

“. . . the service provider, instead of confining itself to providing that service neutrally by a merely technical and automatic processing of the data provided by its customers, plays an active role of such a kind as to give it knowledge of, or control over, those data.” (ECJ in L’Oreal ./.eBay)

The Court concluded that Youtube is not only a service provider but manage the uploaded data, promote it, measure the user’s activity etc. So in light of this, the company is not a neutral mediator.

It’s highly likely that this decision will be appealed but nevertheless, it shows the current more restrictive approach among different European courts toward the internet providers.

Source: Morrison & Foerster LLP – John F. Delaney, Christiane Stuetzle and Christoph Wagner, for Lexology.

Image: freephotocc, Pyxaby.

Audiobooks, parents, and copyright infringements

audiobook-3106985_960_720The Advocate General of the European Court M. SZPUNAR gave its opinion in case C‑149/17 Bastei Lübbe GmbH & Co. KG versus Michael Strotzer. The case concerns the following:

(not an official translation, by google translate)

As a producer of phonograms, Bastei Lübbe AG, a company incorporated under German law, is the holder of copyright and related rights in the audiobook.

Mr Michael Strotzer is the owner of an internet connection through which, on 8 May 2010, this audio recording was shared for downloading with an unlimited number of users on a peer-to-peer file sharing platform. An expert determines with precision that the IP address belongs to Mr Strotzer.

By letter of 28 October 2010, Bastei Lübbe invited Mr Strotzer to suspend the infringement of copyright. As the latter did not comply with that invitation, Bastei Lübbe brought an action before the Amtsgericht München (Munich Regional Court, Munich) for pecuniary damages against Mr Strotzer as the owner of the IP address in question.

Mr Strotzer, however, denies himself having infringed the copyright and maintains that his Internet connection is sufficiently protected. He further claims that his parents had access to the link in question but who, to the best of his knowledge, did not have the audiobook on their computer, did not know about it and did not use the online software file sharing. At the time of the infringement in question, the computer was disconnected.

The Amtsgericht München (District Court, Munich) dismissed the action for damages brought by Bastei Lübbe on the ground that Mr Strotzer could not be accepted as the perpetrator of the alleged copyright infringement because he indicated that his parents have committed this infringement. Bastei Lübbe appealed to the Landgericht München I (District Court, Munich I, Germany) – the referring court in the present case.

The referring court is inclined to accept that Mr Strotzer is liable as the perpetrator of the alleged infringement of copyright, as it does not follow from his explanations that at the time the infringement was committed the internet connection was used by a third party, which is very likely to be the perpetrator. However, the referring court faces difficulties with regard to the Bundesgerichtshof (Federal Supreme Court) (Germany) case-law, in which it considers that the conviction of the defendant might contradict it.

It is true that, according to the case-law of the Bundesgerichtshof (Federal Supreme Court), as interpreted by the referring court, the applicant is required to set out facts from a legal and factual point of view and has the burden of proving the infringement of copyright. Furthermore, the Bundesgerichtshof takes the view that there is a factual presumption that such an infringement was committed by the internet link holder since no other person was able to use that internet connection at the time of the infringement. However, if the internet connection is not sufficiently protected or deliberately provided for use by other persons at the time of the breach, there is no such factual presumption that the breach has been committed by the link holder.

In such cases, the Bundesgerichtshof (Federal Supreme Court) case-law nevertheless entrusts the holder of the internet connection with a secondary obligation to state the facts in law and in fact. The latter fulfills this secondary obligation when he points out that other persons whose identity may be revealing have separate access to his Internet connection and may therefore have allegedly infringed copyright. However, if a family member had access to the internet connection in question, its holder is not obliged to provide further details on the timing and use of this link in view of the protection of marriage and the family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (hereinafter referred to as “the Charter”) and the relevant provisions of German constitutional law.

In those circumstances, the Landgericht München I (District Court, Munich I) decided to stop the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must Article 8 (1) and (2) in conjunction with Article 3 (1) of Directive 2001/29 be interpreted as meaning that penalties for infringements of the right to make a work available to the public continue to be’ dissuasive “and excluding liability for damage caused by an Internet connection owner through which Fileharing (” file sharing “) has been infringed if the Internet connection owner identifies at least one member of the family, which he had with him access to that Internet connection without, however, communicating more detailed details of the timing and use of the Internet by that member of the family by means of relevant studies?

2. Must Article 3 (2) of Directive 2004/48 be interpreted as meaning that measures for the enforcement of intellectual property rights continue to be ‘effective’ and where the liability for harm caused by an internet connection , which infringes copyright through Filesharing (“File Sharing”) if the Internet connection owner indicated at least one member of the family who, along with him, had access to that Internet connection but did not announced y by means of relevant studies, made more detailed details on the timing and use of the Internet by this family member? “

The Advocate General’s opinion:

‘Article 8 (2) of Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society and Article 13 (1) of Directive 2004/48 EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as not requiring in the domestic law of the Member States the introduction of a presumption of liability of the internet owner for infringements of the copyrights made through this connection. However, if domestic law provides for such a presumption in order to ensure the protection of those rights, that presumption must be applied consistently in order to ensure the effectiveness of the protection. The right to respect for family life recognized in Article 7 of the Charter of Fundamental Rights of the European Union cannot be interpreted in such a way as to deprive copyright holders of any real possibility of protecting their intellectual property rights enshrined in Article 17 (2) of the Charter of Fundamental Rights. “

снимка: sik-life / 95 images, Pixabay

Originality of photos according to a French court


A Court in France ruled in a case regarding originality of copyright works. In the case at hand, a photographer took pictures of bathrooms and tried to sell them to a publisher. However, the negotiations failed. Nevertheless, the publisher published the photos and as a consequence, the photographer initiated a lawsuit. He lost the case because the court concluded that the aforementioned pictures are not original taking into consideration their topic. In the appeal, however, the court overruled this decision stating that originality of works of art doesn’t depend on the subject-matter but on the creative efforts put by the author in the process of their creation such as choosing photo’s lighting, framing, angle, highlighting of specific details, digital editing etc.

The publisher tried to vindicate its position claiming that he had the right to publish the photos based on the email correspondence with the photograph, but the Court dismissed this as insufficient, highlighting the need of a written and signed agreement for that purposes.

Source: JIPLP.

Taylor Swift Lyrics Lack Originality and Creativity according to a court in the US

pexels-photo-374703The Federal District Court in Los Angeles, California ruled in a case concerning the Taylor Swift’s song Shake It Off .

This case was initiated by Sean Hall and Nathan Butler as authors of the song Playas Gon’ Play, which was played by the girl group 3LW in 2001.

According to the authors Taylor Swift’s song Shake It Off  infringes their copyrights over the phrase “Playas, they gonna play / And haters, they gonna hate”, part of their song because uses similar phrase “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”

Sean Hall and Nathan Butler claimed that the phrase in their song was completely original in 2001 because describes different characters: players who play and haters who hate. They held that this phrase represents 20% of the whole song.

As a reaction, Taylor Swift’s company filed a motion before the court to dismiss the case for failure to state a claim. The defendants argued that copyright does not protect the short phrases as well as ideas.

According to the court, in the case at hand, there is no copyright infringement due to the mere fact that Taylor Swift’s phrase is not original and creative, requirements necessary for invoking copyright protection.

Source: IP Watchdog.


Google removes ‘view image’ button and reach a deal with Getty


Google announced that the ‘view image’ button for searching images will be not available in future. This decision is a result of a deal with Getty, which try to iron out some of the problems that the authors of images face on the internet.

As a consequence, Google will be able to access the Getty’s content for all of its services.

Although the ‘view image’ button will become something from the past, the visit’ button will remain at consumers disposal giving them a direct link to the source of the relevant images.

For more information here.


French heritage and its commercial use – a court decision

louvre-530058_960_720The Constitutional Court in France has ruled that the last amendments in the Heritage Code are legal and constitutional.

These amendments concern the following:

The use, for commercial purposes, of the image of buildings constituting national domains, on any media, is subject to the prior authorization of the custodian [French term is “gestionnaire”] of the relevant portion of the national domain.  Such authorization may take the form of a unilateral deed or a contract, whether or not in conjunction with financial terms.

The fee shall take into account the advantages of any kind obtained by the holder of the authorization.

The authorization contemplated by the first paragraph is not required where the image is used in the context of the exercise of a public service mission or for ends that are cultural, artistic, pedagogical, for teaching, research, informational and by way of illustration of current events.”

The case was initiated by Wikimedia France which claimed that these amendments as stated are at variance with the French Constitution in particular with the freedom to carry on business, as well as the right of property, and the principle of equality before the law.

According to the Court, however, the above-mentioned amendments are constitutional because they give options for free use of heritage images in case of education, cultural activities, informational purposes and such related to a public service mission.

For more information here.

Source: The 1709 blog.