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“Backseat conversations” not protected by copyright

endstra“The occasional use of an unusual expression – such as “she has a black belt in shopping, so uh …” to describe the shopping behavior of Endstra’s wife  – is not enough to make a copyrighted work of an otherwise banal or trivial designed conversation.”

Amsterdam Court of Appeal, 16 Juli 2013 (Endstra heirs vs. Nieuw Amsterdam Publishers).

The 2008 decision of the Dutch Supreme Court in the Endstra-tapes case was, in the words of Professor Hugenholtz , “the most controversial decision of the decade. The case concerned the  question whether the so called ‘backseat conversations,’  a series of conversations between the resale estate investor Willem Endstra and the Dutch police on [...]

Germany: The Federal Court of Justice and ‘the reality’ about embedded content

benjamin-schuetze“The BGH thus insinuates that framing may be a yet “unnamed right of exploitation” within the scope of Art. 15(2) Copyright Act.”

On 16th May 2013 the first Senate of the German Federal Court of Justice (BGH), delivered its judgment in another case revolving around the issue of hyperlinking or framing. If one had hoped for a final decision to put the matter to rest, one could only be disappointed, since the BGH referred the case for a preliminary ruling to the European Court of Justice (ECJ). The reference to the ECJ concerns the question whether a website operator who embeds copyright protected videos in his website that is publicly available via another website (“framing”) infring [...]

Embedding is no criminal offence, the Brussels Court of Appeal says

“No need to wait for the ECJ, the Court replied.”

In Belgium, besides being a tort from a civil law perspective, a copyright infringement can also be a criminal offence, on the condition that it is done “with malicious or fraudulent intent”. When copyright infringements are committed by unknown perpetrators (which is quite common on the internet), it is usual to file a complaint with an examining magistrate who is endowed with specific criminal investigation powers.

This is what the producer of “Fait d’hiver” (an Academy award nominee short film) did after noticing that the movie had been entirely uploaded on YouTube and embedded in the pages of two websites, namely koreus.com and [...]

European Copyright Society issues opinion on Svensson hyperlinking case

Bernt-HugenholtzThe European Copyright Society, a group of prominent European scholars, today issued an opinion on the Svensson case (Case C-466/12), which is currently before the European Court of Justice. The case, which was referred to the Court by the Swedish Court of Appeal (Svea hovrätt) on 18 October 2012, raises the important question whether setting a hyperlink to a copyright protected work amounts to ‘communication to the public’ within the meaning of Article 3(1) of the Information Society Directive.

In a detailed, 17-page opinion the European Copyright Society argues that the answer to this question should be a resounding no. According to the Society, “The importance of this particular re [...]

Playing Catch 22 with the Public Domain

Goethe-BouquetPlaying Catch 22 with cultural heritage is quite simple: since cultural heritage institutions hardly ever are in a position to digitize their collection because of a lack of financial resources, they obtain funding on the basis of public/private partnerships.

Chances are that in return for the financial support needed for digitization, the private party will seek to retain exclusivity over the digitized objects and to impose restrictions on their further reproduction and making available to the public. The result: the collection is certainly digitized, but the public’s expectation of being able to freely re-use digitized works remains frustrated for as long as the private party has decided.

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Open access by law – proposal for a new regulation in Poland

Tomasz TargoszThe Polish Ministry of Administration and Digitisation has initiated discussion on the law providing free access to public resources.

The Ministry has made available on its webpage a document entitled “Draft Guidelines for the Proposal of the Act on Open Public Resources” and has invited interested parties to comment. Thus a process of “open access by law” has begun. It has been long thought that public resources of various kinds should be, when possible, made available on the internet for free along the motto: what has been paid for by public money is public property. Usually such initiatives have been voluntary and have thus relied on either good will or political pressure. Now, ho [...]

First hotel rooms, then dental practice, and now spa establishments

“When providing healthcare in healthcare facilities, there is no obligation to pay remuneration for communication to the public of copyright works. But, is a hotel room where occasionally health treatment is performed a healthcare facility?”

On 24 July 2012, Krajský soud v Plzni (Czech Republic) lodged a reference for preliminary ruling with the CJEU in case C-351/12, Ochranný svaz autorský pro práva k dílům hudebním, o.s. (OSA) v Léčebné lázně Mariánské Lázně, a.s., referring three questions dealing with separate issues related to a case taking place between a Czech collecting society and a business providing spa services, including both accommodation and healthcare servic [...]

France: Radioblog condemned to damages for over €1 million

The French Supreme Court (“Cour de Cassation”) has upheld, in a ruling of 25 September 2012, a judgment of the Court of Appeal of Paris condemning Radioblog and its managing directors to the payment of damages amounting to over €1 million, in addition to a suspended prison sentence of nine months and a €10,000 fine.

The case is interesting for two reasons: the gigantic amount of damages and the application, for the first time, of new provisions of the French Intellectual Property Code condemning the provision of software applications intended to be used for infringing copyright.

The facts are the following: the website Radioblog provided a software called ‘RadioBlogClub’ to Internet user [...]

The Link Wars Rage on: France and Germany Consider Exclusive Right over Snippets

“According to the current formulation of the draft law, material quoted by humans for commentary and analysis, as opposed to that automatically selected by a computer, may be copied freely.”

The link wars have once again broken out in Europe. In August, the German cabinet gave its backing to a draft law allowing news publishers to collect compensation for the republication of headlines and the introductory sentences of articles by aggregators and search engines. Under the proposal, which would protect content for one year, news publishers would be able to license out snippeting rights for a royalty and start proceedings against those found to infringe their newfound neighbouring right. T [...]

Dr. Strangelaw or: How Portugal Learned to Stop Worrying and Love P2P

On January 5, 2011, representatives of ACAPOR (a Portuguese association representing commercial retailers of cultural and entertainment works), wearing t-shirts with the slogans “piracy is illegal” and “1000 complaints per month”, filed a petition with the Prosecutor General’s Office (“PGO”) giving notice of the practice of 1000 acts of alleged usurpation of authors’ rights via peer-to-peer (“p2p”) networks by unknown individuals. Said petition was supplemented in April 2011, with notice of a further 1.000 acts.

Following an Opinion by the PGO (“PGO Opinion”), the Department of Investigation and Penal Action (“DIAP”) of Lisbon decided not to file any criminal char [...]

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