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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 [...]

Private Copying, an Institution Shaped by the Courts

Pablo HernandezThe progressive breakdown of the legal system regulating compensatory remuneration for private copying has given rise to some unusual cases.  We consider this to be true of a Spanish Supreme Court judgment of 6 March 2015 which had to rule on whether mobile telephones and memory cards were subject to compensatory remuneration payment, the amount of that payment and the application of the Padawan doctrine.  The legislation on which the court was to base its findings was shaky and limited to the general principle governing devices suitable for making recordings.  In view of this, the court had to decide on the royalty payable and the Padawan effect on such devices where the damages exceeded [...]

Third Time Unlucky – the Polish Constitutional Tribunal Axes the Triple Licence Fee

For quite a long time nothing special has been happening in Polish copyright law. Some court decisions here and there (in all fairness unlikely to be called ground-breaking) and some new legislative initiatives (that will be worthy of presenting if eventually passed). However, yesterday (June 23, 2015) the Polish Constitutional Tribunal issued a decision on the art. 79.1 (3 a) of the Polish Copyright Act, declaring the provision unconstitutional. Several facets of the case deserve wider attention and may be relevant in the context of the general discussion on the enforcement of copyright and the desired level of sanctions available in copyright law.

Polish law is very friendly towards copyr [...]

UK: 1967 Ltd v. British Sky Broadcasting Ltd., High Court of England and Wales, Chancery Division, Case No.: HC14C02952, 23 October 2014

This case concerned blocking orders pursuant to s97A of the Copyright Designs and Patents Act 1988 (CDPA). The Court found that there was copyright infringement by both UK users and operators of file-sharing websites, insofar as there was communication of copyright works, the communication was to the public, and the act of communication took place in the UK.  This was the case not only for the websites that allowed users to upload torrent files but also for those that only aggregated links to torrent files on other websites.  Further, the operators of the websites were also held to authorise the infringing acts of their UK users and to be jointly liable for infringements by the users. [...]

UK: Twentieth Century Fox Film Corp v. Sky UK Ltd, High Court of England and Wales, Chancery Division, [2015] EWHC 1082 (Ch), 28 April 2015

The claimants, all members of the Motion Picture Association of America holding copyright in a large number of films and TV programmes, were granted a blocking order preventing the use of Popcorn Time, an open source streaming application which used the BitTorrent protocol to download the claimants’ copyright content.

A full summary of this case has been published on Kluwer IP Law and this case is discussed on the Kluwer Copyright Blog here.

The Netherlands: NSE v. Stichting BREIN, Court of Appeal of Amsterdam, ECLI:NL:GHAMS:2014:3435, 19 August 2014

The Court of Appeals held that a European Usenet Service Provider (‘USP’), ‘NSE’, was excluded from liability for infringement of copyright and neighbouring rights, pursuant to the provisions for mere conduit service providers and hosting service providers in Articles 12 to 15 of Directive 2000/31/EC (The E-Commerce Directive) as implemented into Dutch law. In the context of an Usenet service, an efficient Notice-and-Take-Down procedure is sufficient to establish an expeditious act to remove or disable access to the information in the situation where the USP obtains knowledge or awareness of copyright infringing material. Although NSE was excluded from liability, other measures c [...]

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

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 [...]

Tank Man hits the Constitutional Court

bielik-photoRegular readers of this blog will be familiar with an earlier decision by the Slovak Supreme Court about unauthorised use of a famous Tank Man picture in the Slovak media. The case has now hit the Slovak Constitutional Court, thus providing it with the first ever opportunity to discuss the interface of copyright and freedom of expression. And it is very interesting reading.

Some background first. In 1968, when Soviets invaded Czechoslovakia following the Prague Spring, the Tank Man picture was splashed across the front page of major newspapers globally. It was taken by a young photographer, Ladislav Bielik, and showed a bare-chested man in front of the occupiers’ tank who was ready to be sho [...]

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