The court of appeals held that as there was no evidence that the Defendants had gained any profit from a public display of sculptures, they were not liable to pay royalties in respect of the exhibition. However, the defendants were ordered to discontinue sales of products bearing pictures of the copyright sculptures as this activity was of a commercial nature.
In relation to the claim for moral damages, since the works themselves had not been damaged and the use on sweet boxes or postcards did not affect the reputation of the authors, the court of appeals rejected the request to compensate by way of moral damages.
In 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 [...]
“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 [...]
“A generalised principle of the “targeted” country might well become a recognised point of attachment in copyright conflicts of laws, at least in cases where such target jurisdictions can clearly be identified.”
The distribution of industrial products protected by copyright law can amount to a criminal offence as a violation of the distribution right. In CJEU, 21 June 2012, case C 5/11 (Donner), the CJEU clarified the interface between European law and national criminal sanctions in case such products are protected in the country of export but not in the originating country. The CJEU took the view that European legislation does not stand in the way of applying criminal law provisions c [...]
“With a bit of pathos one may say that the CJEU has restored the old exhaustion principle to its full glory in the digital age. In order to do so the Court did not hesitate to be adventurous with legal interpretation and has also opened new fields for discussion.”
On July 3 the CJEU delivered its judgement in the UsedSoft case concerning the question that according to the recital 29 of the 2001/29 directive “does not arise”, i.e. the question about ‘online exhaustion’. When it, however, arose and when the CJEU answered it, there are only bits and pieces of the traditional copyright wisdom to be collected and discarded. Not so long ago I reported the Advocate General’s opinion in th [...]
On April 24, 2012 the Advocate General Yves Bot delivered his opinion in the UsedSoft case (C-128/11) concerning exhaustion in digital products that have not been distributed on a material carrier.
I think this may be one of the more interesting and bold opinions in the area of copyright law, although I am aware the competition is stiff. Should the Court accept the AG’s views this may even be a small forerunner of important changes in how copyright law adapts itself to the internet era.
The questions asked by the Bundesgerichtshof were :
1. Is the person who can rely on exhaustion of the right to distribute a copy of a computer program a ‘lawful acquirer’ within the meaning of Article 5(1) [...]
“It can be argued that the Commission looks at this type of decisions as a mandate to legislate, at least to a certain extent. The possibility of further harmonization based on a possible CJEU decision cannot therefore be ruled out.”
On 29 March 2012 the Advocate General (AG) Jääskinen delivered his Opinion in Case C-5/11 – Criminal proceedings against Titus Donner. The case concerns Dimensione, a company located in Italy, which sells copies of well-known pieces of furniture. In Italy, these items are either not protected by copyright law or copyright in them is unenforceable in practice. However, Dimensione sells the items to German costumers, and in Germany those items are protec [...]
On 6 September 2011, General Advocate Verica Trstenjak released her Opinion on case C-277/10 (the original German version of the Opinion is available here, other language versions here). The case deals a.o. with the controversial cessio legis provision of the Austrian Urheberrechtsgesetz (Copyright Act – UrhG). According to this provision included in Art. 38(1) UrhG, the exploitation rights to commercially produced cinematographic works belong to the producer of the film with the exception of the restriction of § 39(4) UrhG (translation and adaptation of the work). With regard to the author’s statutory remuneration rights, only 50% belong to him/her while the other 50% belong to the film [...]
Court of Appeal The Hague, 28 June 2011, Stichting Leenrecht v. VOB
Lending rights. Plaintiff, the Dutch Association for Lending Rights, argues that an extended loan of library books should be considered a new loan and that therefore public lending rights are due. The Court of Appeal The Hague disagrees and concludes by referring to the rental and lending right directive that an extension cannot be considered to be a new communication to the public. The extension is part of the original loan, not a new loan and payment of a new remuneration for the extension period is therefore not due.
For the full text of this case click here.
A summary of this case will be posted on www.KluwerIPCases.co [...]
Live-streaming: In a case on internet live-streaming retransmission of TV broadcasts and films, the High Court ruled that the introduction in the UK Copyright Act of a general right of communication to the public with respect to broadcasts was not invalidly enacted. The Court also reached the provisional conclusion that the retransmission of broadcasts and films via live streaming amounts to an act of communication to the public, but referred the question to the European Court of Justice for clarification. In the view of the Court, live streaming retransmission amounts to authorisation of [...]