Some answers regarding the EU Copyright reform

flag-2608475_960_720.jpgThe European Commission published answers to a variety of questions regarding the Copyright reform that has been approved recently. The questions are as follow:

1. The European Parliament voted on the new copyright rules at EU level – what are they about?
2. Why do we need to modernise the EU copyright rules?
3. Are the new copyright rules limiting users and their freedom online?
4. Will the Directive impose upload filters online?
5. Will the Copyright Directive prevent users from expressing themselves on internet in the same way as now? Will memes and GIFs be banned?
6. How will the new Copyright rules tackle the discrepancy between the remuneration of creators and that of certain online platforms (the so-called ‘value gap’)?
7. How will the new copyright rules on user-uploaded platforms benefit the users?
8. What are the services covered by the new rules on user-uploaded platforms?
9. What will be the special regime for startups and smaller enterprises?
10. What will happen to online encyclopaedias (like Wikipedia) that are based on content uploaded by users?
11. How will the new press publishers’ right work?
12. Are small and emerging press publishers going to be affected by the reform?
13. Is the new Copyright Directive creating a “hyperlink tax”?
14. With the new rules, will the use of “snippets” be forbidden?
15. How will the new Directive benefit journalism and journalists?
16. How will the Directive ensure fair remuneration for individual authors and performers?
17. How will the new copyright rules strike a fairer balance in the relationships between creators and their contractual partners?
18. What is the contract adjustment mechanism? Does it interfere with contractual freedom?
19. What is the revocation mechanism and why is it needed?
20. What are the new exceptions to copyright laid down in the Copyright Directive?
21. How will the new copyright rules benefit researchers?
22. What is the purpose of the other, general, text and data mining exception?
23. Who will benefit from the new teaching exception?
24. Will the new copyright rules enhance the preservation and availability of cultural heritage?
25. What will it change for users with regards to “public domain” content?
26. How will the new copyright rules foster the availability of EU audiovisual works on video-on-demand platforms?

You can find the answers here.

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How online stores to communicate with their customers – the Amazon case?

ecommerce-3021581_960_720The Advocate General of the European Court G. PITRUZZELLA has given an opinion on case  C‑649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände, Verbraucherzentrale Bundesverband e. V. v Amazon EU Sàrl., which concerns the following:

The Bundesverband alleges that Amazon, an online sales platform, has failed to fulfil, in a clear and comprehensible manner, its obligations regarding the provision of information to consumers and has thereby infringed the German legislation implementing Directive 2011/83.

In particular, the applicant in the main proceedings submits that Amazon does not, prior to the conclusion of (online) distance sales, inform customers of a fax number; it also requires customers to answer a series of questions, including questions concerning their identity, before displaying the telephone number of its general helpline.

The applicant in the main proceedings alleges that Amazon is thus infringing the statutory consumer protection rules in force in Germany which, in implementation of Directive 2011/83, require traders to indicate, in a clear and comprehensible manner, their geographical address and telephone number and, where appropriate, their fax number and email address, so as to enable consumers to contact them quickly and efficiently.

Amazon does offer an automated call-back facility and an online chat service, but these are not, according to the applicant in the main proceedings, sufficient to discharge its legal obligations.

Having brought proceedings before the Landgericht Köln (Regional Court, Cologne, Germany), which rejected its application on 13 October 2015, the Bundesverband brought an appeal before the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany).

By judgment of 8 July 2016, that court dismissed the appeal and upheld the judgment at first instance.

Finally, the Bundesverband brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice).

The Bundesgerichtshof (Federal Court of Justice), being in doubt as to the consistency with EU law of legislation such as the German legislation at issue, which requires traders to give a telephone number in every case, rather than only where available, made the reference for a preliminary ruling to the Court of Justice.

The Bundesgerichtshof (Federal Court of Justice) decided to ask the Court about the proper interpretation of the expression ‘where available’, used in Article 6(1)(c), whether the list of means of communication set out in that provision is exhaustive or not, and about the scope of the obligation of transparency incumbent on traders.

It was in that context that the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1)  May the Member States enact a provision which — like the provision in point 2 of the first sentence of Article 246a(1)(1) of the EGBGB — obliges traders when entering into distance contracts to give consumers their telephone number prior to acceptance of the contract not only where they have one available but in every case?

(2)  Does the expression “gegebenenfalls” (meaning “where available”) used in [the German language-version of] Article 6(1)(c) of Directive [2011/83] mean that traders must, if they decide to enter into distance contracts, provide information solely about the means of communication that are already actually available within their business, and that they are therefore not required to set up a new telephone or fax connection or email account?

(3)  If the second question is answered in the affirmative:

Does the expression “gegebenenfalls” (meaning “where available”) used in [the German language-version of] Article 6(1)(c) of Directive [2011/83] refer solely to the means of communication that are already available in the business and are actually used by the trader for communication with consumers when entering into distance contracts, or does it also refer to means of communication that are available in the business but have hitherto been used by the trader exclusively for other purposes, such as to communicate with other traders or authorities?

(4)  Is the list of means of communication (telephone, fax and email) set out in Article 6(1)(c) of Directive [2011/83] exhaustive, or may traders also use other means of communication not mentioned in that list, such as online chat services or call-back facilities, provided that they ensure rapid contact and efficient communication?

(5) Is it relevant to fulfilment of the obligation of transparency under Article 6(1) of Directive [2011/83] — in accordance with which traders must inform consumers in a clear and comprehensible manner of the means of communication referred to in Article 6(1)(c) of the directive — that that information is supplied quickly and efficiently?’

The Advocate’s position:

(1) Given its function of full harmonisation and in light of its literal, systematic and teleological interpretation, Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, precludes national legislation which obliges traders, when entering into distance contracts, to give consumers their telephone number prior to acceptance of the contract not only where they have such a number but in all cases.

(2) The expression ‘gegebenenfalls’ used in the German-language version of Article 6(1)(c) of Directive 2011/83 must be interpreted, literally, systematically and teleologically, as not imposing on traders any obligation, if they decide to enter into distance contracts, to set up a new telephone or fax connection or email account.

(3) The expression ‘gegebenenfalls’ used in the German-language version of Article 6(1)(c) of Directive 2011/83 must be interpreted, literally, systematically and teleologically, in the sense that only those means of communication which a trader has decided to employ in dealings with consumers when concluding distance contracts are ‘available’ within the undertaking.

(4) The list of means of communication set out in Article 6(1)(c) of Directive 2011/83 (i.e. telephone, fax and email) is not exhaustive and traders may also use other means of communication not mentioned in that list, such as online chat services or call-back facilities, provided that, whatever means of communication are employed, they actually offer consumers a choice of what means to use and ensure rapid contact and efficient communication, and provided that the information regarding those means of communication is provided in a clear and comprehensible manner.

(5)  Fulfilment of the obligation of transparency under Article 6(1) of Directive 2011/83 requires that consumers should be able to access the information regarding the means of communication which traders make available to them in a simple, efficient and relatively rapid manner.

Important amendments in the Czech trademark law came into force

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As of 01.01.2019, some new and significant amendments in the Czech trademark law came into force. The local Patent Office will not check for earlier identical or similar trademarks when examining new applications. The owners of such rights will have an opportunity to file oppositions in order to protect its registered signs. This by itself requires the Trademark bulletin, issued by the Patent Office, to be checked on a regular basis. Apart from this, the amendments allow registration of new types of marks such as signs of sounds, smells, positions, movements, etc.

The law will consider unauthorized use of trademarks in the names of companies to be a trademark infringement.

Source: Lexology, Kinstellar – Zdeněk Kučera.

Beats Electronics won a trademark case in the EU

pexels-photo-577769.jpegThe Board of Appeal of the EUIPO has ruled in a case regarding an application for the following European trademark applied for classes 9 (apparatus for recording, transmission or reproduction of sound or images), 35 (business management, business administration, market research services, export services), and 38 (telecommunication services, in particular mobile telephony, broadcasting of radio and television programmes):

beats1

Against this application, an opposition was filed by Beats Electronics based on the following earlier European trademarks for classes 9 (audio and video equipment including audio players, video players, media players, portable media players), 38 (providing online bulletin boards in the fields of media, music, video, film, book and television for the transmission of messages among users), and 41 (nightclub services, dance club services, provision of live entertainment and recorded entertainment) of the Nice Classification. EUTM 2 was for the same goods and services, with the addition of Class 42 (providing an interactive online network website, via electronic communication networks):

Initially, the EUIPO’s Opposition Division dismissed the opposition stating that there is no possibility for consumer confusion concerning both signs despite the identical and similar goods. The claim for trademarks with reputation by Beats Electronics was dismissed as not proved.

The decision was appealed and the Board of Appeal reversed it finding that the Opposition Division erred in its conclusions.

According to the the Board, both trademarks are similar and can create confusion amongst the consumers. The arguments behind this position were that both signs have similar visual elements as well as colors. The differences are not enough to overcome similarities. What’s more the earlier marks have a reputation on the market which was proved by the owner.

Source: Nedim Malovic, IPKat.

Smart Things cannot be a trademark in The EU

turn-on-2944067_960_720Samsung Electronics won an invalidation proceeding against the following European trademark registered for classes 9, 20 and 35:

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The invalidation was based on absolute grounds – descriptiveness in relation to the trademark’s goods and services. The applicant argued that its mark was distinctive because when it was applied for in 2012 it wasn’t included in dictionaries and on top of that the concept for the internet of things wasn’t popular among consumers.

Initially, the EUIPO dismissed Samsung’s request stating that although Smart Things are descriptive words the presence of an emoticon in the sign is enough to create a necessary level of distinctiveness.

The decision was appealed.

According to the Board of Appeal, the trademark at hand is fully descriptive for the relevant goods and services and this cannot be overcome by the emoticon. What’s more, this phrase has to be left free for use for all market participant taking into account that it is highly used for different technologies. The fact that it wasn’t included in a dictionary in 2012 is irrelevant for the case.

Source: WIPR.

Brief IP news

briefs_1131.  Mexico to use the list of terms from the harmonised database in TMclass. For more information here.

2. Digital royalties to creators top €1 billion as global collections rise 6.2% to €9.6 billion. For more information here.

3. How to label your European Year of Cultural Heritage 2018 event? For more information here.

Shift the blame for copyright infringement to your parents – an EU Court decision

pirate-2129571_960_720The European Court has ruled in case C‑149/17,Bastei Lübbe GmbH & Co. KG v Michael Strotzer, which concerns the following:

Bastei Lübbe is the holder, as a phonogram producer, of the copyright and related rights in the audio version of a book.

Mr Strotzer is the owner of an internet connection through which, on 8 May 2010, that audio book was shared, for the purpose of downloading, with an unlimited number of users of a peer-to-peer internet exchange. An expert correctly attributed the IP address in question to Mr Strotzer.

By letter of 28 October 2010, Bastei Lübbe warned Mr Strotzer to cease and desist the infringement of copyright which had occurred. That warning notice was unsuccessful and Bastei Lübbe brought an action before the Amtsgericht München (Local Court, Munich, Germany) against Mr Strotzer as the owner of the IP address in question, seeking damages.

However, Mr Strotzer denies having himself infringed copyright and maintains that his connection was sufficiently secure. In addition, he asserts that his parents, who live in the same household, also had access to that connection but that to his knowledge they did not have the work in question on their computer, were not aware of the existence of the work and did not use the online exchange software. In addition, Mr Strotzer’s computer was switched off at the time when the infringement in question was committed.

The Amtsgericht München (Local Court, Munich) dismissed Bastei Lübbe’s action for damages on the ground that Mr Strotzer could not be held liable for the infringement of copyright in question, because he had stated that his parents could also have committed the infringement in question.

Bastei Lübbe appealed against the decision of the Amtsgericht München (Local Court, Munich) before the Landgericht München I (Regional Court, Munich I, Germany).

That court is inclined to hold Mr Strotzer liable in that it does not follow from his explanations that a third party used the internet connection at the time of the infringement. It considers that Mr Strotzer is therefore seriously likely to have committed the copyright infringement.

That court nevertheless considers itself to be compelled to apply Paragraph 97 of the Law on copyright and related rights, as amended by the Law of 1 October 2013, as interpreted by the Bundesgerichtshof (Federal Court of Justice, Germany), which in its view might preclude the defendant from being held liable.

In fact, according to the case-law of the Bundesgerichtshof (Federal Court of Justice), as interpreted by the referring court, it is for the applicant to allege and prove the infringement of copyright. The Bundesgerichtshof (Federal Court of Justice) considers, moreover, that the owner of an internet connection is presumed to have committed such an infringement provided that no other person was able to use the internet connection at the time of the infringement. However, if the internet connection was not sufficiently secure or was knowingly made available to other persons, then the owner of that connection is not presumed to have committed the infringement.

In that case, the case-law of the Bundesgerichtshof (Federal Court of Justice) nonetheless places on the owner of the internet connection a secondary burden to present the facts. The owner discharges that secondary burden to the requisite standard by explaining that other persons, whose identity he discloses, where appropriate, had independent access to his internet connection and are therefore capable of having committed the alleged infringement of copyright. Although a family member of the owner of the internet connection had access to that connection, the owner of that connection is not, however, required to provide further details relating to the time and the nature of the use of that connection, having regard to the protection of marriage and family guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the corresponding provisions of the German Basic Law.

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

‘1. Should Article 8(1) and (2), in conjunction with Article 3(1), of Directive 2001/29/EC be interpreted as meaning that “effective and dissuasive sanctions” for infringements of the right to make works available to the public are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?

2. Should Article 3(2) of Directive 2004/48/EC be interpreted as meaning that “effective” measures for the enforcement of intellectual property rights are still provided for even when the owner of an internet connection used for copyright infringements through file-sharing is excluded from liability to pay damages if the owner of that internet connection can name at least one family member who, besides him or her, might have had access to that internet connection, without providing further details, established through appropriate investigations, as to when and how the internet was used by that family member?’

The Court ‘s decision:

Article 8(1) and (2) of Directive 2001/29/EC, of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, read in conjunction with Article 3(1) thereof, and Article 3(2) 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 precluding national legislation, such as that at issue in the main proceedings, under which, as interpreted by the relevant national courts, the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection, without providing further details as to when and how the internet was used by that family member.