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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Breaking News – The EU Council approves DSM Directive

The EU Council has approved the DSM Directive. You can see how every Member State voted below:

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The next step is the transposition of this Directive into the national legislation of every EU Member State, which has to be done within 24 months.

Source: IP Kat.

Breaking news – EU Parliament gave its approval to the EU copyright reform

2048393.jpgToday, 26.03.2018, the European Parliament approved the controversial copyright reform with 348 votes in favor, 274 against. This brings the reform one step closer to its final adoption in the EU. What will follow is formal approval by the European ministers. In a nutshell this reform concerns:

  • Social media platforms will have to keep even a closer eye on every possible copyright violation;
  • Web content providers will have to sign license agreements with right holders;
  • News providers will have to negotiate and get a license from publishers in order to use their news and articles;
  • Non-profit organizations, including websites such as Wikipedia, are not bound to these rules;
  • Startup companies with annual turnover up to 10 million dollars are excluded too.

More information can be found here.

Source: DW.

 

 

Brief IP news

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1. No likelihood of confusion deemed between “an apple” and the letter „J“. For more information here.

2. Calculating copyright infringement damages using hypothetical license fees. For more information here.

3. Evaluation of EU legislation on design protection. For more information here.

Free use of copyrighted works for advertisement in Denmark – an important Court’s decision

flag-2526294_960_720Emil Jurcenoks and Peter Nørgaard reported for one interesting and at the same time an important decision of the Danish Supreme Court.

The case concerns advertising photographs made by the Danish supermarket chain Coop which contained among other tableware by the Danish designer Kasper Heie Würtz for which use, however, there wasn’t a concent by the designer nor any remunerations.

A lawsuit was been initiated. According to Coop there was no copyright infringement because the Danish legal practice allows minor use of copyrighted works in case that the works are not famous and the use is only as a background and minimal.

Würtz won the case before the first instance Maritime and Commercial High Court.

The Supreme Court upheld this decision. According to the court, Coop failed to prove that there is a legal practice which allows such copyright exceptions for applied art for advertising purposes. What’s more, the Court considers the use at hand as not minor due to the fact that all photographs contain the aforementioned tableware. An exception is possible but in very narrow cases where relevant works are not distinctive enough and are not essential elements in the reproductions.

The full article is accessible here.

Source: IPKat.

Storage of goods and copyright infringement – a European Court’s decision

forklift-835340_960_720The European Court has ruled in case C‑572/17 Imran Syed, which concerns the following:

Mr Syed ran a retail shop in Stockholm (Sweden) in which he sold clothes and accessories with rock music motifs. In addition to offering the items for sale in that shop, Mr Syed stored such goods in a storage facility adjacent to the shop and in another storage facility located in Bandhagen (Sweden), in a suburb of Stockholm. It is established that Mr Syed’s shop was regularly restocked with merchandise from those storage facilities.

It has been determined that the sale of several of those items infringed trade marks and copyrights. Criminal proceedings were brought against Mr Syed for trademark infringement and breach of Law (1960:729) before the tingsrätten (District Court, Sweden). According to the åklagaren (Public Prosecutor, Sweden), Mr Syed infringed the claimants’ copyright by unlawfully making available to the public clothes and flags bearing the motifs protected by copyright. The prosecutor therefore took the view that all of the goods bearing such motifs which were in the shop and in the storage facilities were being offered for sale or distributed to the public, and that such acts therefore constituted an infringement of Law (1960:729).

The tingsrätten (District Court) found Mr Syed guilty of trade mark infringement concerning all the goods discovered. That court also found him guilty of infringing Law (1960:729) with regard to the goods bearing a copyrighted motif which were in the shop he was running, as well as with regard to the goods stored in both the storage facilities at issue, in so far as identical goods were offered for sale in the shop. The tingsrätten (District Court) took the view, in holding Mr Syed liable for the goods in the storage facilities as well, that the concept of ‘offering for sale’ goods which infringe the copyright held by the claimants did not apply solely to the goods which, at a given point in time, were located in Mr Syed’s shop, but also applied to the identical goods in the storage facilities. In contrast, that court held that the other goods in the storage facilities could not be regarded as having been offered for sale. For all of those infringements, the tingsrätten (District Court) sentenced Mr Syed to a suspended custodial sentence and to 80 per diem fines.

Hearing the case on appeal, the Svea hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Stockholm, Sweden: patent and commercial division) found that Mr Syed had infringed Law (1960:729) only in so far as the goods located in his shop were concerned and not in relation to the goods in the storage facilities. That court took the view that Mr Syed had stored those goods for the purpose of sale. However, it could not be considered that those goods had been offered for sale or distributed to the public. Similarly, the handling of goods in the storage facilities did not, according to the court hearing the appeal, constitute an attempt or preparation to commit an infringement of Law (1960:729). The sentence given to Mr Syed was reduced, in so far as Mr Syed was sentenced to a suspended custodial sentence and 60 per diem fines.

Before the Högsta domstolen (Supreme Court, Sweden), the referring court in this case, the Riksåklagaren (Prosecutor-General) claimed that Mr Syed should be found guilty in respect of the same goods as those which the tingsrätten (District Court) had found to establish an infringement of Law (1960:729). He also submitted that the Högsta domstolen (Supreme Court) should refer the matter to the Court of Justice for a preliminary ruling concerning the interpretation of Article 4(1) of Directive 2001/29.

Before the referring court, Mr Syed argued that it followed from the case-law of the Court of Justice that infringement of a rightholder’s distribution right by an offer for sale requires acts directed towards the public with the aim of transferring each specific item. He contended that the purchase and storage of goods cannot be considered to be such acts. An interpretation to the contrary would extend the scope of criminal liability, in breach of the principle of legality.

The referring court notes that Law (1960:729) and Directive 2001/29 do not expressly prohibit the storage of goods bearing a copyrighted motif for the purpose of sale. It adds that, following the decision of the Court of Justice of 13 May 2015, Dimensione Direct Sales and Labianca (C‑516/13, EU:C:2015:315), there may be an infringement of an author’s exclusive right under Article 4(1) of Directive 2001/29 as a result of measures or steps that take place prior to the performance of a contract of sale. Nonetheless, the question arises whether goods bearing a protected motif which are kept, by a person, in storage facilities can be regarded as being offered for sale when that person offers identical goods for sale in a retail shop run by him.

In those circumstances, the Högsta domstolen (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. When goods bearing protected motifs are unlawfully offered for sale in a shop, can there also be an infringement of the author’s exclusive right of distribution under Article 4(1) of Directive 2001/29 as regards goods with identical motifs, which are held in storage by the person offering the goods for sale?

2. Is it relevant whether the goods are held in a storage facility adjacent to the shop or in another location?’

The Court’s decision:

Article 4(1) 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 must be interpreted as meaning that the storage by a retailer of goods bearing a motif protected by copyright on the territory of the Member State where the goods are stored may constitute an infringement of the exclusive distribution right, as defined by that provision, when that retailer offers for sale, without the authorisation of the copyright holder, goods identical to those which he is storing, provided that the stored goods are actually intended for sale on the territory of the Member State in which that motif is protected. The distance between the place of storage and the place of sale cannot, on its own, be a decisive element in determining whether the stored goods are intended for sale on the territory of that Member State.

The Advocate General of the EU Court gave an opinion on a case regarding Kraftwerk’s music and free(fair) use of works

smartphone-vintage-technology-music.jpgThe Advocate General of the European court issued an opinion on Case C‑476/17 Pelham GmbH, Moses Pelham, Martin Haasm срещу Ralf Hütter, Florian Schneider-Esleben. This case concerns the following:

Mr Ralf Hütter and Mr Florian Schneider-Esleben, claimants at first instance and respondents in the appeal on a point of law in the main proceedings (‘the respondents’), are members of the music group Kraftwerk. In 1977, the group published a phonogram which features the song Metall auf Metall. The respondents are the producers of that phonogram, but also the performers of the work in question and Mr Hütter is also the author (composer).

Pelham GmbH, a company governed by German law, defendant at first instance and appellant on a point of law in the main proceedings, is the producer of a phonogram which features the song Nur mir, performed, inter alia, by the singer Sabrina Setlur. Mr Moses Pelham and Mr Martin Haas, also defendants at first instance and appellants on a point of law in the main proceedings, are the authors of that work.

The respondents claim that Pelham, Mr Pelham and Mr Haas (‘the appellants’) copied — electronically sampled — approximately two seconds of a rhythm sequence from the song Metall auf Metall and incorporated it, as a continuous loop, in the song Nur mir. They submit that the appellants thus infringed the related right they hold as producers of the phonogram in question. In the alternative, the respondents invoke the intellectual property rights they hold as performers and allege an infringement of Mr Hütter’s copyright in the musical work. In the further alternative, the respondents allege an infringement of competition law. However, the proceedings before the referring court concern only the rights of the respondents as producers of the phonogram.

The respondents requested the termination of the infringement, the award of damages, the provision of information and the surrender of the phonograms for the purposes of destruction. The court of first instance upheld the action and the appeal brought by the appellants in the main proceedings was unsuccessful. By judgment of 20 November 2008, the referring court, in response to an appeal on a point of law brought by the appellants, upheld the judgment of the appeal court and the case was referred back to the appeal court for further examination. The appeal court again dismissed the appeal brought by the appellants. By judgment of 13 December 2012, the referring court, in response to a second appeal on a point of law brought by the appellants, dismissed that appeal. That judgment was annulled by the Bundesverfassungsgericht (Federal Constitutional Court, Germany), (8) which referred the case back to the referring court.

In those circumstances, the Bundesgerichtshof (Federal Court of Justice, Germany) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is there an infringement of the phonogram producer’s exclusive right under Article 2(c) of Directive [2001/29] to reproduce its phonogram if very short audio snatches are taken from its phonogram and transferred to another phonogram?

(2) Is a phonogram which contains very short audio snatches transferred from another phonogram a copy of the other phonogram within the meaning of Article 9(1)(b) of Directive [2006/115]?

(3)  Can the Member States enact a provision which — in the manner of Paragraph 24(1) of the [UrhG] — inherently limits the scope of protection of the phonogram producer’s exclusive right to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram in such a way that an independent work created in free use of its phonogram may be exploited without the phonogram producer’s consent?

(4)  Can it be said that a work or other subject matter is being used for quotation purposes within the meaning of Article 5(3)(d) of Directive [2001/29] if it is not evident that another person’s work or another person’s subject matter is being used?

(5) Do the provisions of EU law on the reproduction right and the distribution right of the phonogram producer (Article 2(c) of Directive 2001/29 and Article 9(1)(b) of Directive 2006/115) and the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and Article 10(2), first sentence, of Directive 2006/115) allow any latitude in terms of implementation in national law?

(6) In what way are the fundamental rights set out in the Charter of Fundamental Rights of the European Union (‘the Charter’) to be taken into account when ascertaining the scope of protection of the exclusive right of the phonogram producer to reproduce (Article 2(c) of Directive 2001/29) and to distribute (Article 9(1)(b) of Directive 2006/115) its phonogram and the scope of the exceptions or limitations to those rights (Article 5(2) and (3) of Directive 2001/29 and Article 10(2), first sentence, of Directive 2006/115)?’

17. The request for a preliminary ruling was received at the Court on 4 August 2017. Written observations were submitted by the parties in the main proceedings, the German, French and United Kingdom Governments and the European Commission. All the parties concerned were represented at the hearing on 3 July 2018.

The Advocate’s decision:

(1) Article 2(c) 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 must be interpreted as meaning that taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram to authorise or prohibit the reproduction of his phonogram within the meaning of that provision where it is taken without the latter’s permission.

(2) Article 9(1)(b) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property must be interpreted as meaning that a phonogram which contains extracts transferred from another phonogram (samples) is not a copy of the other phonogram within the meaning of that provision.

(3) Article 2(c) of Directive 2001/29 must be interpreted as precluding the application of a provision of the national law of a Member State, such as Paragraph 24(1) of the Gesetz über Urheberrecht und verwandte Schutzrechte — Urheberrechtsgesetz (German Law on Copyright and Related Rights) of 9 September 1965, according to which an independent work may be created in the free use of another work without the consent of the author of the work used, to phonograms, in so far as it exceeds the scope of the exceptions and limitations to exclusive rights provided for in Article 5(2) and (3) of that directive.

(4) The quotation exception provided for in Article 5(3)(d) of Directive 2001/29 does not apply where an extract of a phonogram has been incorporated into another phonogram without any intention of interacting with the first phonogram and in such a way that it forms an indistinguishable part of the second phonogram.

(5) Member States are required to ensure the protection, in their domestic law, of the exclusive rights set out in Articles 2 to 4 of Directive 2001/29, in so far as those rights can be limited only in the application of the exceptions and limitations listed exhaustively in Article 5 of that directive. Member States are nevertheless free as to the choice of form and methods they consider appropriate to implement in order to comply with that obligation.

(6) The exclusive right of phonogram producers under Article 2(c) of Directive 2001/29 to authorise or prohibit reproduction, in part, of their phonogram in the event of its use for sampling purposes is not contrary to the freedom of the arts as enshrined in Article 13 of the Charter of Fundamental Rights of the European Union.