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Historic conviction of the administrators of a downloads site: Youkioske Judgment handed down by the Spanish National High Court (Criminal Chamber) on 5 March 2015

Patricia MariscalOn 5 March 2015, the Spanish National High Court convicted the administrators of the website Youkioske of an aggravated intellectual property offence and of promoting and establishing a criminal organisation.  The judgment can be deemed ‘historic’ since it is the first time that the operators of a downloads site have faced a penalty of this magnitude – no less than 6 years’ imprisonment, a fine equivalent to a period of 20 months at a rate of 10 Euros per day, disqualification from operating websites professionally for a period of five years and the attachment of the almost 200,000 Euros that had been made from the unlawful activities.  It does not end there, however, for the guilt [...]

Everything you always wanted to know about private copying but were afraid to ask (Case C-463/12 Copydan Båndkopi v Nokia Danmark A/S)

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On March 5, 2015 the Court of Justice of the European Union (the ‘Court’ or ‘CJEU’) ruled on Case C-463/12 Copydan Båndkopi v Nokia Danmark A/S (‘Copydan’). The case marks the seventh occasion on which the Court has ruled on the issue of the private copying limitation under art. 5(2)(b) Directive 2001/29/EC (the ‘Directive’), following Padawan, Stichting de Thuiskopie, Luksan, VG Wort, Amazon.com and, most recently, ACI Adam. Currently, at least two more cases are pending: C-572/13 Hewlett-Packard and C-470/14 Egeda.

This blog post is structured as follows. Section 1 briefly discusses Copydan’s background and facts, while clarifying the issues examined by the Advocate Ge [...]

ECJ: Auction houses may transfer cost of artist’s resale royalties to the buyer

Brad-SpitzAn auction house may transfer the responsibility of paying the artist’s ‘droit de suite’ from the seller to the buyer.

This judgment, rendered by the European Court of Justice on 26 February 2015 in response to a reference from the French Supreme Court, will satisfy the auction houses and art dealers in Europe (Christie’s France SNC v Syndicat national des antiquaires, Case C-41/14). The ECJ has held that under Article 1(4) of Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art, the seller or an art market professional involved in a transaction may agree with any other person, including the buyer, that the said other person will bear the [...]

Spain: APM v. SGAE, Spanish National Competition Commission, Resolution S/0460/13, 6 November 2014

In a recent decision, the Spanish Market and Competition Commission (CNMC), imposed a fine of 3.1 million Euros on the Spanish collecting society, SGAE, for demanding an excessive fee for concert licensing.

This decision is of particular interest because the Spanish competition authority has taken a new approach when interpreting the European law on the method of analysing the fairness of a fee.  This could lead to considerable uncertainty if this line of interpretation should become established.

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

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CJEU: Mere Accessibility of Websites Enough for Jurisdiction

Martin HusovecIs the mere accessibility of a copyright infringing website sufficient to establish jurisdiction in a Member State? The Court of Justice of the European Union says a resounding “yes” in Pez Hejduk C-441/13.

The decision does not come as a big surprise, given the earlier (in)famous Pinckney C-170/12 ruling (reported on this blog here) – the ruling which many were refusing to believe was true. But it is. Pez Hejduk clears up any doubts.

Ms Hejduk is an author of photographic works depicting the buildings of the Austrian architect, Georg W. Reinberg. The defendant – EnergieAgentur – used Ms Hejduk’s photographs on its “.de” website. Taking the view that her copyright had been infringed, [...]

Italy: Buma di Paolo Buscema v Data Bridge, Supreme Court of Cassation of Italy, 13524/2014, 13 June 2014

The Italian Supreme Court confirmed that software which derives from a pre-existing computer program is eligible for copyright protection provided it demonstrates a minimal level of originality, even if it reproduces the main structure of the pre-existing program.

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

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France: TF1, Court of Cassation of France, First Civil Law Chamber, 13-22401, 13 November 2014

In this judgment, the French Supreme Court ruled that an author who is a member of a collecting society may not take action in infringement cases to protect his economic rights, except in the case of a deficiency on the part of said collecting society.

In the same judgment, the Supreme Court ruled that publishing agreements for the assignment of rights of an author must be in writing, and it is not possible to demonstrate the existence of an agreement by reference to the behaviour of the authors as regards the exploitation of the work.

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

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Czech Republic: “Bike Shop v. Masters of Sound”, Constitutional Court of the Czech Republic, II. ÚS 3076/13, 15 April 2014

In a case concerning the use of a radio set in a small bike shop, the Constitutional Court ruled that in order to assess whether a user is making a communication to the public, the situation of the specific user and of all the persons to whom he communicates the protected works must be assessed.

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

 

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The Dutch courts apply UsedSoft to the resale of eBooks

Portret SabaOn 20 January, the Dutch court of appeals (Hof Amsterdam) gave its preliminary ruling in the case of Tom Kabinet. In this ruling the court had to consider whether the CJEU UsedSoft rationale applies to eBooks as well. Without giving a final judgment, the court indicated that it considers it quite likely that exhaustion of rights, as described in art 4(2) of the Infosoc Directive, also applies to intangible goods, such as eBooks.

Tom Kabinet, a Dutch company, started a business in ‘used’ eBooks. The owner of an eBook can sell his copy through the website of Tom Kabinet. In order to sell used eBooks, the owner needs to declare that he obtained the copy legally, by agreeing to Tom Kabinet [...]

Allposters ECJ Decision: no exhaustion of rights in modifications of the copyright work.

Olivier SasserathIn its recent decision (22 January 2015) in the Allposters case (C-419/13), the ECJ confirmed that exhaustion of the distribution rights does not apply to works that have been modified. The copyright owner can therefore still oppose the distribution of the modified work, even if he had agreed to the distribution of the original work.

The degree of modification needed -or sufficient- to claim that exhaustion of rights does not apply is still uncertain: the ECJ confirmed that if the modification amounts to a new reproduction, the exhaustion of rights will not apply (even if the “original” copy is destroyed in the process of making the new copy). This is the case if the physical medium on w [...]

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