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Downloading from Unlawful Sources. Reflections following the Villalón Opinion on AciAdam and Others.

Downloading illegal

This blog post discusses the recent Opinion by Advocate General Pedro Cruz Villalón in Case C-435/12 – ACI Adam and Others, delivered on 9 January 2014 (not available in English).

In this case, Advocate General Villalón considered whether reproductions from unlawful sources fall within the private copying exception of art. 5(2)(b) of Directive 2001/29/EC (Copyright Directive), as well as whether it is in line with the Directive to calculate the private copying levy based on reproductions from both lawful and unlawful sources. (All legal provisions cited hereinafter refer to this legal instrument, unless otherwise stated). The questions referred also relate to the effect of the application [...]

Germany: The Pixelio Stock photo case and the District Court of Cologne…again

benjamin-schuetze“According to Art. 13 of the German Copyright Act (“CA”) the author has the right to be identified as the author of the work. He may determine whether the work shall bear a designation of authorship and which designation is to be used.”

The District Court of Cologne (Landgericht Köln) apparently never sleeps. After its somewhat questionable role in a surge of so called Redtube warning letters which infested some 10.000 unsuspecting German internet users in December 2013, the Court surprises both internet users as well as the legal community with a judgment (LG Köln, judgment of 30.1.2014, 14 O 427/13) on the moral right of recognition of authorship (Art. 13 Copyright Act) and its [...]

The Svensson case and the act of communication to a new public

Patricia mariscal“In other words, the initial communication by the copyright holder already encompassed the potential public that subsequently accessed the content via the links”


The long-awaited judgment of the CJEU in the Svensson case, judgment of 13 February 2013 in (C-466/12).

The legal definition of internet links has been a widely-discussed subject in recent times, pitting those who consider links an act of communication to the public within the meaning of article 3.1 of Directive 2011/29/EC (Directive of the Information Society) against those who, on equally justifiable grounds, argue that the creation of internet links does not, strictly speaking, constitute an act of communication to the publi [...]

The ECJ clarifies right to take action against individuals’ imports of unauthorized copies in the EU

Philippe-Laurent“The test in case of sale could therefore be reduced to the following simple question: would there have been an infringement if the seller had been established in the Member State where the buyer resides.”

On 6 February 2014, the Court of Justice of the EU issued a decision in the Blomqvist v Rolex SA Case (C-98/13) that has been welcomed by IP rights owners. It simplifies and clarifies the test that should be run to determine whether goods acquired on-line from a seller established in a non-member state are goods infringing intellectual property rights in the sense of Regulation 1383/2003 of 22 July 2003.

The regulation gives a specific definition to the “goods infringing an intellectual [...]

France: no copyright protection for perfume

Brad-SpitzThe Supreme Court maintains its position in a case concerning a Lancôme perfume, stating that ‘copyright only protects creations in their tangible form, so far as this form is identifiable with sufficient precision to permit its communication; whereas the fragrance of a perfume … is not a form that has this characteristic, and therefore cannot be protected by copyright’.

Article L.112-1 of the French Intellectual Property Code (IPC) protects ‘the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose’, without giving a definition of originality.

French case law has defined originality as the expression of the personality of the autho [...]

The Court of Justice on Links: It is Allowed to Link. At Least In Principle.

tomasztargosz-sqThe Court of Justice delivered its highly anticipated decision on linking. A breath of relief is allowed: linking seems to be legal. But when one looks a little closer, disturbing things begin to emerge.

First things first. The decision in Case C‑466/12, resulting from a request for a preliminary ruling from a Swedish court (Nils Svensson and others v Retriever Sverige AB) comes to the conclusion that providing on a website a link to another website, where a copyright work is “freely available”, does not constitute an ‘act of communication to the public’ in the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmon [...]

The Netherlands: a hyperlink to unfindable files

bdpb“In that case, the publication of an hyperlink is, in principle, not an autonomous communication to the public”

It is a common fact that the sex-industry, along with the arms industry,  is a driving force behind many new developments. Porn is a major force on the internet and it also shouldn’t come as a surprise that important legal questions surface in porn-related cases. One example is the recent  commotion in Germany about tens of thousands of cease and desist letters for watching a porn-stream on the internet (see this earlier blog) and another example is a judgment of the Amsterdam Court of Appeal in a case about playboy-photo’s that were leaked to or found by other media an [...]

Italy: Gay Pride photo doesn’t infringe portrait rights

spedicato “Those who take a train have to accept the risk of being identified abstractly in the crowd of passengers, as this is simply part of the ‘risks of the life’.”

The Italian Supreme Court rules that, according to Article 97 of the Italian Copyright Act, the public displaying of the portrait of a person is not an infringement of his rights when it is associated with facts or events, such as the Gay Pride parade, which are of public interest and which take place in public.

On October 24, 2013, the Italian Supreme Court published a decision concerning the public displaying of the portrait of a person without his consent in a context (i.e. the Gay Pride parade) where the honour and dign [...]

Jurisdiction in EU copyright cases: accessibility of a website is a criterion

Brad-SpitzFor the ECJ, in the meaning of Article 5(3) of the Regulation 44/2001, a harmful event may arise from the possibility of obtaining a reproduction of a work from an internet site accessible within the jurisdiction of the court seised.

In its judgement Pinckney v. KDG Mediatech AG of 3 October 2013 (case C-170/12), the European Court of Justice answered a request for a preliminary ruling from French Supreme Court, concerning the interpretation of Article 5(3) of the Regulation 44/2001 on jurisdiction and recognition, which provides that “A person domiciled in a Member State may, in another Member State, be sued (…) in matters relating to tort, delict or quasi-delict, in the courts fo [...]

Czech Supreme Court: Embedding is communication to the public

Martin HusovecIn February this year, the Czech Supreme Court ruled that a mere posting of an embedded link that links to copyright-protected material, must be regarded as a communication to the public and therewith as a direct copyright infringement. The Court was either unaware of pending cases in Luxembourg, or too impatient to wait for the CJEU. Paradoxically, whatever the response of CJEU in BestWater C-348/13 will be, the Czech court cannot be said to be wrong with regard to the direct infringement issue.

A few weeks ago, the Czech Constitutional Court (III. ÚS 1768/13) rejected a constitutional complaint of a young man, who was found guilty of copyright infringement by all court instances, includin [...]

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