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Germany: No Digitisation without Reproduction

benjamin-schuetzeOn 16th April 2015 the German Federal Court of Justice (BGH) delivered its final judgment in a lengthy legal standoff, which began its journey through the judiciary in 2009. The judgment is not yet available but is discussed in a press release here.  Since that time libraries and publishing houses have fought with one another over the meaning of access to digital content, the right to reproduction and traditional copyright exploitation schemes. The dispute at hand revolved around Sec. 52b of the German Copyright Act (Urheberrechtsgesetz), containing a statutory copyright limitation which permits certain institutions such as public libraries, museums and archives to make published works of w [...]

In breach of EU copyright law, Paris Court refuses to protect Mankowitz’s photo of Jimi Hendrix

poznati,bwjimihendrix,blackwhite,jimihendrix,geredmankowitz,hendrix-3d940e6f3d92f277d66e8d68a9b5d962_hThis ruling, rendered by the IP specialist section of the High Court of First Instance of Paris, breaches the most basic EU and French copyright law, by refusing copyright protection to an obviously original photographic work. This very surprising ruling is unfortunately just another ruling contrary to the elementary rules of copyright law that has been given by the High Court of Paris.

On 21 May 2015, the High Court of First Instance of Paris (Tribunal de Grande Instance) rendered a judgment in which it ruled that a famous photograph of Jimi Hendrix, taken by Gered Mankowitz, is not original and therefore not protected by copyright. The photograph is reproduced hereabove. The 3rd Chamber o [...]

The Netherlands: Photo on YouTube Channel, Court of Appeal of ‘s Hertogenbosch, ECLI:NL:GHSHE:2014:284, IEF 11605 and ECLI:NL:GHSHE:2014:2524, IEF 14082, 29 July 2014

This case in the Court of Appeal of ‘s-Hertogenbosch concerned the use of a photograph of a photo model by two rappers in one of their music videos. The video was uploaded to YouTube after which it was disseminated via their own website’s homepage and their YouTube Channel. Although the rappers were authorised to do so by the photo model in question, they did not have the consent of the photographer, i.e. the rightholder. Consequently, the photographer brought suit against the two rappers on the basis of copyright infringement.

In order to estimate her damages, the photographer provided the Court with an indicative rates list for photography assignments. Although the Court found t [...]

Portugal: Tryptic Shop Deco, Supreme Court of Justice of Portugal, 3952/08.9TJVNF.P1.S1, 17 December 2014

The Supreme Court held that pictures of tryptic paintings, as copyrightable artistic works, cannot be used as decoration of shops and on online catalogues without the authorisation of the owner of the copyright in those paintings.

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

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UK: John Kaldor Fabricmaker v. Lee Ann Fashions, High Court of England and Wales, Chancery Division, [2014] EWHC 3779 (IPEC), 21 November 2014

A claim for infringement of copyright and design rights failed. There was no good reason to reject evidence that the fabric in question was created without sight of the claimant’s fabric; the similarities between the designs were not sufficient to infer that there had been subconscious copying.

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

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Chesterton’s work still alive in Spain

Patricia MariscalA recent judgment by the Spanish Supreme Court draws a line under the legal dispute between the heirs of the British writer G. K. Chesterton and a Spanish publishing house concerning the term of protection applicable to the former’s works in Spain. The judgment declares that Chesterton’s works, just like those of any national or foreign author who had died whilst the Spanish Act of 1879 was in force, are protected in Spain for a period of 80 years post mortem auctoris. 

Protection of G. K. Chesterton’s works in Spain for a period of 80 years would not be quite so startling if it were not for the fact that in the United Kingdom, the writer’s country of origin, the rights in those wor [...]

Bulgaria: Commercial case No. 3824 of 2014, Court of Appeal of Sofia, 478, 11 March 2015

In this case, the Court of Appeal was required to determine the amount of damages payable when the fact of infringement was ascertained but there was insufficient evidence on the total amount of damages incurred.  The court held that the circumstances related to the type, nature and gravity of the infringement, the lost profit, any moral damages incurred and the revenue gained as a result of the infringement should all be taken into account, in accordance with the equity principle.

In this case, which concerned copyright infringement through the publication of two photographs in two issues of a daily newspaper, the court took into account the following: the significant circulation of t [...]

Popcorn Time – a website blocking order decision with a slightly different flavour

Blum_Jeremy2Another blocking order in the UK, however, this time there was some complexity about the actual acts of infringement. In Twentieth Century Fox Film Corporation & Ors v Sky UK Ltd & Ors, the High Court considered the circumstances in which website blocking orders should be granted against websites facilitating the use of a “sophisticated and user friendly” application known as Popcorn Time, which uses the BitTorrent protocol to obtain infringing film and TV content from one or more host websites. Although the court ultimately granted the order on the basis of joint tortfeasance, on the particular facts of this application the court did not consider that infringing acts of communication to [...]

Red light for Sabam’s pricing system for Internet access providers: up- and downstream IAP traffic do not constitute communication or making a work available to the public

Rosario-Debilio2On the 13th March 2015, the President of the Brussels French speaking Court of First Instance pronounced a judgment to the detriment of Sabam, an important collective management organisation in Belgium. In 2011 Sabam decided to claim a fee from Internet access providers in exchange for a licence which allows these providers to communicate copyright protected works to the public (see here). I shall first discuss the control on the pricing system set up by Sabam. I shall then study how electronic communication law’s notions were used to define the scope of this pricing system. A final discussion will be dedicated to the rest of the procedure in this case setting the Belgian State against Sab [...]

France: Apple Distribution International, Conseil d’Etat, 358734, 19 November 2014

In this judgment, the French Supreme administrative Court, the Conseil d’Etat, confirms the validity of a decision taken on 9 February 2012 by the Commission in charge of setting the compensation for private copying. This decision adopted the new tariffs applicable for recording media subject to the remuneration for private copying, including portable media players, external hard drives, smartphones and tablet computers.

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

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