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Turkish Constitutional Court annuls the amendment empowering the Cabinet to arbitrarily “confiscate” copyright

Emre BayamlıoğluOn the 13th of May 2015, the Turkish Constitutional Court quashed by a majority decision an amendment to Article 47 of the Law on Intellectual and Artistic Works (No: 5846) which empowered the council of ministers for the State to appropriate the copyright in works that are either authored by Turkish citizens or authored in Turkey, and that are found to be of importance to ‘national culture’, after the death of the Author, but before the term of protection of 70 years expires.

The amendment in question

Prior to the amendment dated 10th September 2014, Article 47 allowed for the appropriation of copyright only in cases where the work has been out of print for more than two years and, in a [...]

The National Lottery wins the prize

GeriA recent judgment by the CJEU set aside a decision of the General Court annulling an OHIM decision to invalidate a Community trade mark owned by the National Lottery Commission, based on the presumed existence of an earlier copyright. The CJEU remitted the case back to the General Court for a ruling taking into account the right of the parties to a fair trial. After eight years and after passing through the entire gamut of the European Union’s appeal proceedings, the copyright was finally declared non-existent and the trade mark valid.

On 2 October 2007 the applicants, the National Lottery Commission (now the Gambling Commission), obtained Community trade mark registration no. 4800399, repro [...]

Back on the Green Road: How Imperative are Imperative Rules?


Echos from the Dutch legal and scientific communities indicate that opinions widely diverge on the topic of the imperative character of proposed article 25 fa) of the Dutch Copyright Act in situations bearing an international dimension.

As discussed in my previous blogpost, this new provision would give authors of short works of science for which the research is funded in whole or in part by Dutch public funds, the right to make the work available to the public for free, after a reasonable time after the first publication, provided that the source of the first publication is indicated. In view of the international character of scientific research and of the scientific publishing market, I [...]

Almost there! In Support of the Green Road to Dutch Science!

Image from page 447 of "The theory and practice of horticulture; or, An attempt to explain the chief operations of gardening upon physiological grounds" (1855) The Netherlands Organisation for Scientific Research (NWO), the main public funding agency in the country, has been enforcing already for a few years an Open Access (OA) policy for the dissemination of the results of the research that it finances (both publications and data). The NWO does not mandate a specific form of OA: Green is as good as Gold! But the practical implementation of the Green Road is, as often the case, subject to the capability of individual authors to secure the right to deposit their article in an institutional repository, once they have transferred their rights to a publisher.

For an equally long period of time the Dutch legislator has been engaged in a process to am [...]

Who owns the World Cup? The case for and against (intellectual) property rights in sports.

KCB 490 Bently IVIR influx 
During the recent  25th anniversary  conference of  the IViR (2-4 July in Amsterdam) many interesting lectures were given and many intriguing panel discussions were held. In the unfortunate case you missed the conference, you can find several  fotos and videos of the event on the webpage of the conference and on  IViR’s YouTube channel.

Readers of this blog already know that the last day of the conference, just after the splendid closing keynote by James Boyle, a panel was dedicated to an event very high in (almost) everybody’s minds, at least at that time – the 4th of July was the day of the FIFA World Cup quarter finals.

The title of the panel was “Who owns the world cup? T [...]

French Supreme Court on 5(2) BC: national law determines who is the copyright owner

Brad-Spitz“The law of the country where protection is sought governs all matters relating to the exercise and enjoyment of copyright, including the determination of the rights holder.”

Article 5(2) of the Berne Convention for the Protection of Literary and Artistic Works provides that “The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of [...]

France: Presumption of ownership extended to neighbouring rights

Brad-Spitz“In the absence of any claim from the phonogram producer, or its assigns, the natural or legal person who publicly, peacefully and unambiguously exploits recordings, is deemed to be the holder of the rights in the recordings as regards third parties against whom an infringement case is brought.”

The French Intellectual Property Code deals with copyright and neighbouring rights separately. As regards copyright, the French case law has long established a presumption of ownership to facilitate infringement proceedings initiated by natural or legal persons who exploit copyrighted works against alleged infringers.

On the grounds of article L.113-5 of the Intellectual Property Code, which provides [...]

Presumption of authorship: only natural persons

Estonian Supreme Court, 7 February 2012, Case No3-2-1-155-11,  Herlitz PBS AG vs. Realister OÜ (plaintiff in the prededing proceeding).

The Estonian Supreme Court found in its recent judgement in the Realister case that the presumption of authorship as laid down in the Sections 4(6) and 29(1) of the Estonian Copyright Act (hereinafter referred to as the CA) is only applicable in case the right holder relying on the presumption of authorship is a natural person, who has created the work, not a legal person who has obtained the economical rights under the law or a contract.

In this case the owner of the authors’ economical rights is a legal person that claims to have economical copyrights [...]

Cultural heritage institutions concerned over proposed European orphan works directive

The Proposal for a Directive on certain permitted uses of orphan works, introduced in the European Parliament on 24 May 2011, has been following its merry way through the legislative meanders ever since. The debates around the text of the proposal are heating up right now, for the European Commission pushes for rapid adoption while stakeholders watch out against any measure possibly affecting their respective interests.

Already since the beginning of this year, the Danish Presidency has published two revised compromise proposals, one on 6 January and the second one on 10 February 2012. The last proposal was followed by a Presidency non-paper on a possible single database for orphan works for [...]

UK: The photographs are pictures of drugs

Patents Court London, 19 January 2012, Hoffman v Drug Abuse Resistance Education. A charity infringed copyright in photographs by including them in its website withouth the author’s permission. The fact that the charity was under a good-faith impression that it had permission to use the photographs, as they appeared in a website that was covered by Crown copyright, did not prevent the finding of infringement. Moreover, the innocence defence can apply as a bar to damages only when it can be shown that, at the time of the infringement, the defendant did not know, or had no reason to believe, that copyright subsisted in the work (CDPA, sec. 97). However, the defence does not apply when one beli [...]

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