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Dutch Supreme Court: Cable retransmission has ended, but the levy might be reintroduced

DVisserImportant ruling by Dutch Supreme Court on cable retransmission, film copyright and collective management of rights

Guest blog by Prof. Dr D.J.G. Visser, Institute for Private Law, Leiden University 

“This could well mean that several Dutch collecting societies, in particular those representing actors, screenwriters and directors (Norma, Lira and Vevam) can no longer claim remuneration for cable (re)transmission of programs broadcast by Dutch broadcasters.”

The cable distribution of Dutch television programs as it currently takes place in The Netherlands is no longer a ‘cable retransmission’ in the sense of the EU Satellite and Cable (SatCab) Directive, because it is no longer precede [...]

CJEU in UPC Telekabel Wien: A totally legal court order…to do the impossible

Christina-Angelopoulos“This indicates the main danger of the ruling, that of fragmentation. This was foreseen by the Austrian referring court, which suggested that guidelines assessing the proportionality of blocking measures be laid down by the CJEU – that would have been welcome indeed! That absence is certainly the biggest deficiency of the ruling.”

Last Thursday, the Court of Justice of the European Union issued its judgment on Austria’s Oberster Gerichtshof reference for a preliminary ruling in Case C-314/12, UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH.   

The case begun when film production companies Constantin Film Verheih and Wega Filmproduktionsgesellschaft GmbH noticed their copy [...]

Artist’s Resale Rights: French preliminary question to the ECJ

Brad-SpitzCan an auction house transfer the responsibility of paying the resale right royalty from the seller to the buyer?

Directive 2001/84/EC created a resale right (‘droit de suite’) in the EU for the benefit of the author of an original work of art. This resale right is ‘defined as an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author’ (Article 1). The directive was adopted in 2001 but only came into force on 1 January 2010.

Article 1(4) of Directive 2001/84/EC states that ‘The royalty shall be payable by the seller’, and that Member St [...]

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 [...]

Do most US authors still only enjoy a copyright term of life plus 50 in the EU?

Naamloos-1Both the US and the EU now have basic copyright terms of the life of the author plus 70 years.  But when US authors simultaneously publish in Canada, they may end up truncating their term of copyright in the EU. 

Moreover, simultaneous Canadian publication decades ago could have an immediate effect on works by US authors who died between 50 and 70 years ago – a list that includes Ernest Hemingway, William Faulkner, Edgar Rice Burroughs, Jerome Kern, W.C. Handy, Buddy Holly, Alfred Stieglitz, Frank Lloyd Wright.  Here’s why, with a few twists and complications along the way. 

In 1993, the EU directed its member states to set the basic term of copyright to life plus 70.  Yet it contem [...]

EU: Does Innoweb hinder innovation on the web?

Martin Husovec“The activity of the operator of a dedicated meta search engine (…) comes close to the manufacture of a parasitical competing product.”

Christmas somewhat overshadowed the publication of a particularly interesting CJEU decision: case C-202/12 (Innoweb), dealing with the legal protection of databases in relation to meta search engines. The judgment was published on 19 december 2013.

The preliminary questions referred to the CJEU arose in Dutch civil proceedings against Innoweb, a company that operates the dedicated car meta search engine ‘GasPedaal’ (literally ‘accelerator pedal’), which enables users to simultaneously carry out searches in several collections (databases) of ca [...]

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