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UK: John Kaldor Fabricmaker v. Lee Ann Fashions, High Court of England and Wales, Chancery Division, [2014] EWHC 3779 (IPEC), 21 November 2014

A claim for infringement of copyright and design rights failed. There was no good reason to reject evidence that the fabric in question was created without sight of the claimant’s fabric; the similarities between the designs were not sufficient to infer that there had been subconscious copying.

A full summary of this case has been published on Kluwer IP Law

New Turkish Construction Regulations Impair the Copyright Protection on Architectural Works

Emre BayamlıoğluA brief outline of the copyright protection granted for architectural designs

In Article 2/1,  the Berne Convention counts architectural works, together with plans, sketches and three-dimensional works relative to architecture, as copyrightable subject matter.

Turkish law treats architectural creations in two different categories: as “literary works” and “works of fine art”. Accordingly, under Law No 5846 on Artistic and Intellectual Works, the architectural work itself and the plans, sketches and three-dimensional works relative to architecture are classed as two different types of work.

Article 4 of Law No 5846 titled “Works of Fine Art” grants copyright protection to archite [...]

Italy: Buma di Paolo Buscema v Data Bridge, Supreme Court of Cassation of Italy, 13524/2014, 13 June 2014

The Italian Supreme Court confirmed that software which derives from a pre-existing computer program is eligible for copyright protection provided it demonstrates a minimal level of originality, even if it reproduces the main structure of the pre-existing program.

A full summary of this case has been published on Kluwer IP Law

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 [...]

NL: Confusing slavish imitation of a painting style is not illegitimate.

Duijs Broer small“The law does not allow for additional protection of the maker of a work against so-called slavish imitation of a style or of elements of style.”

Supreme Court of the Netherlands, 29 March 2013 (Duijsens/Broeren).   

Although the legal concept of coat-tail riding is usually associated with trademark law, it is certainly not unfamiliar to copyright law. But whereas in trademark law the mere association with a popular brand is used to sell the non-identical brand of the coat-tail rider, in copyright law it is often the style of an artist or a work , that is used as a means to stay as close to these work(s) without literally imitating them.

Unfortunately for those whose coat-tails are r [...]

Goodbye, Geschriftenbescherming!

Bernt-HugenholtzBesides tulips, cheese, football and other recreational matters, the Netherlands are famous for its copyright protection of non-original writings. Geschriftenbescherming, as the Dutch call this legal anomaly (and only they know how to pronounce it), is a remnant of an ancient eighteenth-century printer’s right that lives on until this day in the Dutch Copyright Act of 1912. Deviating from the idea of author’s right (droit d’auteur) to which Dutch law otherwise subscribes, the Dutch Act protects ‘writings’ that do not meet the test of originality. Article 10 (1), first item, of the Act, mentions as protected subject matter ‘books, brochures, newspapers, periodicals and all other wri [...]

Originality of a computer program under French law

The usefulness of a computer program is not sufficient to characterise the originality of the program.

There is nothing more subjective, and often arbitrary and unfair, than the notion on which copyright protection is based: originality. Under French law, the Intellectual Property Code protects “the rights of authors in all works of the mind, whatever their kind, form of expression, merit or purpose” (article L.112-1), without giving a definition of originality. French case law has defined originality as the expression of the personality of the author. European case law validated the French conception of originality, in particular in Infopaq and in Painer (para. 88: “As stated in recita [...]

A Story to be Told. The fine line between plagiarism and story-(re)telling

“What seems to lack in the decision of the Court, at the end of the day, is a clear test of what constitutes a structural element in the ‘embryonic stage’.

Last 19 October 2012, the Italian Supreme Court published a decision on a case of plagiarism related to a literary work which told the true story of a II World War hero. The facts, in brief: the plaintiff wrote a book about the story of an officer of the Italian navy and a pioneer of scuba diving, Luigi Ferraro, based on a number of talks and interviews that the two had had. The book was mostly biographic, but it also mixed the story of Luigi Ferraro with the war experiences of the author, who was in the Italian army in the same period. [...]

Belgian Supreme Court: against the tide of the CJEU’s case law on “originality”?

On 26 January 2012, the Belgian Supreme Court decided to quash an appeal decision deeming that “when requiring that a work must show the stamp of the author’s personality in order to benefit from copyright protection, the judges of appeal do not validate their decision in law”. According to the Supreme Court, a literary or artistic work is protected by copyright on condition that it is original in the sense that it is the author’s own intellectual creation, and it is therefore not required that the work carry the stamp of the author’s personality. One should stress that such decision is all the more surprising that the “stamp of the author’s personality” can be considered as ha [...]

Another piece of the puzzle, or is it? CJEU on photographs as copyright works

By Mireille van Eechoud, Institute for Information Law (IViR)

Of the many questions addressed by the Court in its Painer judgment (Case C-145/10) the most impact will probably be on the construction of an EU wide originality criterion for copyright works.

Infopaq, BSA and Murphy went before, seemingly extending the originality standard implicit in the Software Directive and the Database Directive to all works of authorship. Now the standard of art. 6 Term Directive, morphed to a ‘personal touch stamp’ seems the latest generic test. Which is odd, considering that art. 6 Term Directive’s primary function is to set a harmonized term of copyright protection for works of photography, distin [...]

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