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Portugal: TV sets in hotel rooms, Court of Appeal of Lisbon, 163/14.8YHLSB.L1-6, 27 December 2014

The installation of TV sets in hotel rooms, which show videograms through the TV signal distributed by a cable operator, constitutes a public performance and the making available to the public of those videograms.  Consequently, authorisation is required from concerned rightholders and equitable remuneration is payable under the relevant provisions of the Code of Copyright and Related Rights (Articles 178(1)(a) and 184(2)(3)).

A full summary of this case has been published on Kluwer IP Law

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The UK Consults on the Collective Rights Management Directive

By Jeremy Blum and Jade McIntyre, Bristows

Blum_Jeremy2 The EU Directive on the collective management of copyright and multi-territorial licensing of online music (“the Directive”), published on 26 February 2014, entered into force on 10 April 2014 and must be transposed into national law by 10 April 2016. The policy underpinning the Directive is part of the European Commission’s ‘Digital Agenda for Europe’ and the ‘Europe 2020’ strategy for ‘smart, sustainable and inclusive growth’.

The purpose of the Directive is to:

  • Modernise and improve standards of governance, financial management and transparency of all EU collective management organisations (CMOs), so that rights-holders have [...]
Update on the UK Private Copying Exception

Blum_Jeremy2We reported here last month that the private copying exception, which took effect on 1 October 2014 as s.28B of the Copyright, Designs and Patents Act, was declared unlawful by the High Court. The court found that the evidence relied on by the government in order to introduce the exception without also providing a means of “fair compensation” to rights holders was flawed.

In a follow-up judgment, available here, the High Court formally quashed the regulations which created the private copying exception following further submissions from the parties.

Perhaps surprisingly, the regulation was quashed with the agreement of the UK government. The Secretary of State stated that the government [...]

The National Lottery wins the prize

GeriA recent judgment by the CJEU set aside a decision of the General Court annulling an OHIM decision to invalidate a Community trade mark owned by the National Lottery Commission, based on the presumed existence of an earlier copyright. The CJEU remitted the case back to the General Court for a ruling taking into account the right of the parties to a fair trial. After eight years and after passing through the entire gamut of the European Union’s appeal proceedings, the copyright was finally declared non-existent and the trade mark valid.

On 2 October 2007 the applicants, the National Lottery Commission (now the Gambling Commission), obtained Community trade mark registration no. 4800399, repro [...]

Poland: Appropriate remuneration for an author, Court of Appeal of Kraków, I ACa 1420/14, 30 December 2014

In determining the amount of remuneration that an author might obtain for the copyright in his photographs, it was necessary to determine the remuneration that he would have received if the person who violated his rights had entered into an agreement with the author concerning the use of the work. Such a determination should be based on the remuneration rates in the photography market, taking into account the quality and the possible usage of these photos.

A full summary of this case has been published on Kluwer IP Law.

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Poland: Derived work, Supreme Court of Poland, I CNP 10/14, 14 November 2014

The Supreme Court held that it is a matter of fact, not law, whether a work created from fragments of another work is a derivative work (according to Article 2 of the Copyright Act) or another kind of non-independently created work. Therefore this type of issue cannot be debated in an action for determining the lawfulness of the court’s judgment. The Supreme Court likewise acknowledged the legality of the appeal court’s views with regard to the applicability of Article 78(2) of the Copyright Act, rather than Article 445 §3 of the Civil Code, in cases where damages are sought after the author’s death. Although this legal issue is questionable in the Polish literature, the Supreme Court recog [...]

Freedom of panorama: what copyright for public art and architectural works?

Lilla MontagnaniThe relationship between copyright and public art has always been difficult. From the initial reluctance to include architectural works as copyrightable subject matter because of their functional dimension, to the attempt at copyrighting works that, like the Egyptian pyramids, have never been protected (see here), passing on through the cases of “duplitectural marvels”. Moving beyond the question of why, when in China, we would want to visit the Austrian town of Hallstatt, these trends do say something. They show that we have entered into the age of repeatability for architecture, as recently demonstrated by the copy of Zaha Hadid’s Wangjing Soho that has been built in Chongqing. On t [...]

Bulgaria: Commercial case No.199 of 2014, Supreme Court of Cassation of Bulgaria, 218, 16 June 2015

The time at which extraction from an electronic database takes place is the time at which the materials being extracted are placed on a medium other than that of the original database, independently of whether they are placed there permanently or temporarily (Case 545/07, Apis Hristovih EOOD v. Lakorda AD, paragraph 45). The time of extraction is essential for civil proceedings for infringement of database rights and the burden to prove this specific moment lies with the claimant (in addition to proving the fact of infringement). In proceedings for infringement of database rights the content of the respective databases should be compared as at the time of claimed extraction.

Where the claima [...]

The Netherlands: Rubik v. Beckx Trading, Supreme Court of the Netherlands, ECLI:NL:HR:2014:2737, 19 September 2014

Erno Rubik, creator of the famous Rubik’s Cube, brought suit against a Dutch enterprise that trades in gift articles, including the so-called ‘Magic Cube’, which strongly resembles Rubik’s own ‘Rubik’s Cube’. Prior to the Supreme Court proceedings, the Arnhem Court of Appeals ruled that the (combination of) the Rubik’s Cube’s characteristic six colours was considered to meet the ‘own intellectual creation’ threshold needed for copyright protection. However, the Rubik’s Cube as such – abstracted from its colours – did not meet this standard, as the characteristic elements of the Rubik’s Cube merely serve a technical function, precluding it from being protectable by cop [...]

Performers’ Rights and the Performance Right: A Constitutionally Confusing Conflation of Constructs

halpern_env-page-001The bizarre saga known as Garcia v. Google has finally come to end with an eleven judge en banc decision of the United States Court of Appeals for the Ninth Circuit (Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015)). That holding came in response to a remarkable, if not astonishing holding by a two to one majority of a Ninth Circuit panel. The en banc hearing, and its result, overturning the panel majority, was not at all surprising. The issue, however, was disturbing enough to have generated  the filing of thirteen different amici curiae briefs on behalf of more than forty different purported amici.

While the end result was fully anticipated the case itself raises significant issues a [...]

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