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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 [...]

Opinion of the Advocate General of the ECJ in the Painer case (2): the notion of originality in photographs

The Advocate General’s Opinion in Case C-145/10, Painer v Standard VerlagsGmbH et al., parts of which have already been discussed in an earlier blog post (here), also deals with the copyrightability of portrait photos. In this case, German and Austrian newspaper publishers had published portrait photos of Natascha Kampusch, and a photo-fit based on one of the photos, following Natascha’s escape from her abductor in 2006. The portrait photos were produced by Eva-Maria Painer. Since she had not consented to publication, she brought an action against the newspaper publishers for copyright infringement.

Because the referring court (the Handelsgericht Wien) was uncertain about whether the pub [...]

James Joyce Estate finally gives Kate Bush Permission to use Molly Bloom soliloquy

By Luke McDongagh, PhD Candidate, QMIPRI

The Irish Times has recently reported that the Joyce estate has, after many years of
refusal, finally granted the English singer Kate Bush permission to use the famous Molly
Bloom soliloquy from James Joyce’s seminal novel Ulysses as the lyrical basis for a
song. The soliloquy, spoken at the end of the novel by Molly Bloom, the wife of the main
character Leopold Bloom, is famous for including one of the longest sentences in the
English literature (over 4000 words). Kate Bush was refused permission to use the extract
in the original version of her album The Sensual World in 1989.

The decision is notable due to the previous unwillingness of the Joyce es [...]

Supreme Court, 22.06.2010, IV CSK 459/09 – Subject matter of copyright

What is and what is not a copyright work is a question even copyright lawyers find difficult to answer when confronted with subject matter on the verge of the required standard of originality. Polish copyright law has quite a long tradition of setting the threshold rather low, which may encourage frivolous lawsuits forcing courts to ponder whether simple graphic designs, short lines of text or even names should or should not be protected by copyright law. Protection by copyright law has an obvious advantage for plaintiffs since in Poland liability for copyright infringements is rather far-reaching. Not only is it strict as far as cessation of infringement is concerned, but also damages in th [...]

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