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Tank Man hits the Constitutional Court

bielik-photoRegular readers of this blog will be familiar with an earlier decision by the Slovak Supreme Court about unauthorised use of a famous Tank Man picture in the Slovak media. The case has now hit the Slovak Constitutional Court, thus providing it with the first ever opportunity to discuss the interface of copyright and freedom of expression. And it is very interesting reading.

Some background first. In 1968, when Soviets invaded Czechoslovakia following the Prague Spring, the Tank Man picture was splashed across the front page of major newspapers globally. It was taken by a young photographer, Ladislav Bielik, and showed a bare-chested man in front of the occupiers’ tank who was ready to be sho [...]

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 [...]

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 [...]

Italy: copyright protection only for ‘high level’ industrial design

The “Arco” lamp is protected by copyright. But Italy is still struggling with the moratorium of the copyright protection of industrial design.

With a 56-pages decision of the District Court of Milan published on 12 September 2012 and made available last week, the “Arco” lamp case, started as far back as 2006, has finally come to an end. In the meanwhile, a few amendments to the relevant norms and a judgment of the European Court of Justice (case C‑168/09) intervened. But let’s start this story from the beginning.

In November 2006 FLOS SpA, the Italian company producing the famous Arco floor lamp designed in 1962 by Achille and Pier Giacomo Castiglioni, brought proceedings against [...]

[Updated] As had long been suspected: The proposed Press Publishers Right is meant as a lex Google after all (Germany)

“Some said this would be like an Opera House charging the taxi drivers for taking the audience to the venue.”

It has been more than three years now since the infamous idea of a new neighbouring right for press publishers appeared in the coalition agreement of the second Merkel government out of thin air. On the face of it, the approach seemed somewhat reasonable: To give press publishers a neighbouring right just like the ones enjoyed by other key players of content production, f.e. film and phonogram producers.

First ideas for an implementation circled around a kind of online press levy, to be payed by any commercial or public entity. There were reports about the respective collecting socie [...]

What is a “work”? Apparently only fine art, Portuguese Appeals Court rules

On 30 June 2011, the Lisbon Court of Appeals has issued its decision in case 323/07.8TVLSB.L1-2 (unfortunately there is no English translation of this). The facts of the case are as follows: a company wanted to hire an artist to create a sculpture, and for that purpose it received a few proposals from different artists. The appellant was one of the artists who sent in a proposal, which was comprised of several elements, including sketches and a maquette. The company did not hire the appellant in the end, so he asked for the preparatory material back. However, the maquette wasn’t returned. It had disappeared, probably because it had been destroyed. The artist sued for damages, alleging inte [...]

UK: Lucasfilm Ltd & Ors v Ainsworth & Anor (Supreme Court), 27 july 2011

UK:  Lucasfilm Ltd & Ors v Ainsworth & Anor, Supreme Court, 27 july 2011.

Helmets and harmours created for the characters of the Imperial Stormtrooper in the film Star Wars are not “sculptures”, and therefore are not copyrightable subject matter within the Copyright, Designs and Patents Act 1988. Nevertheless, a claim for infringement of a US copyright is justiceable in the United Kingdom, provided there is a basis for in personam jurisdiction over the defendant. (Stavroula Karapapa &  Maurizio Borghi, Brunel University).

For the full text of this case click here.

A summary of this case will be posted on soon.

Lying on a copyrightable chaise longue?

The saga of copyright protection of industrial design works continues.

Historically, Italian courts had been very reluctant to recognize copyright protection to industrial design works due to a provision (now abrogated) contained in the Copyright Law that clearly excluded copyrightability of creative works whereas the artistic value of the work was not separable from the industrial nature of the product (for example, on this basis, a Supreme Court decision in 1994 had denied copyright protection to the famous chaise longue by master LeCorbusier).

The approach radically changed with the implementation of Directive 71/98/EC in Italy, that introduced art. 2 n. 10) of the Copyright Law, recogniz [...]

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 [...]

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