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UK Damages for Copyright Infringement: More than Flagrancy?

By Jeremy Blum and Luke Maunder, Bristows

Blum_Jeremy2A recent decision in the UK Intellectual Property and Enterprise Court (IPEC) provides some helpful guidance on the application of the ‘user principle’ and, more importantly, on the interplay between damages for flagrant infringement under s.97(2) of the Copyright Designs and Patents Act 1988 (CDPA) and damages under Article 13 of the IP Enforcement Directive (Directive 2004/48).  The case is Absolute Lofts South West London v Artisan Home Improvements (read the judgment in full.)

Both parties were engaged in roof loft conversions, although geographically they were not competitors.  Artisan had admitted to using 21 photographs of loft conversio [...]

Incidental Inclusion of Works – Mere Incidental Relevance of the Exception according to the German Bundesgerichtshof

Jan Bernd NordemannCase I ZR 177/13 of November 17, 2014: Moebelkatalog [Furniture Catalogue] published here.

According to a recent ruling of the German Highest Civil Court, the Bundesgerichtshof (“BGH”), the copyright exception for “incidental inclusion of a work or other subject matter in other material” (Article 5 (3) lit. i) Copyright Directive 2001/29) has to be interpreted narrowly. It is the first decision of the BGH on this copyright exception. The BGH did not refer the case to the CJEU, but thought its opinion was acte clair.

Facts of the case

The case name “Moebelkatalog” [Furniture Catalogue] refers to the furniture catalogue at issue in this case, published by the defendant, a manufactu [...]

Poland: Plagiarism, Supreme Court of Poland, V CSK 125/14, 23 January 2015

The Polish Supreme Court held that the use of elements of a work of authorship, which are widely known and available (in the public domain), in another work in which those elements were combined in a different way, constitutes an expression of individual creative thought, and cannot therefore be regarded as an infringement of copyright in the first work (plagiarism).

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

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 [...]

Portugal: TV sets in hotel rooms, Court of Appeal of Lisbon, 163/14.8YHLSB.L1-6, 27 December 2014

The installation of TV sets in hotel rooms, which show videograms through the TV signal distributed by a cable operator, constitutes a public performance and the making available to the public of those videograms.  Consequently, authorisation is required from concerned rightholders and equitable remuneration is payable under the relevant provisions of the Code of Copyright and Related Rights (Articles 178(1)(a) and 184(2)(3)).

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

The UK Consults on the Collective Rights Management Directive

By Jeremy Blum and Jade McIntyre, Bristows

Blum_Jeremy2 The EU Directive on the collective management of copyright and multi-territorial licensing of online music (“the Directive”), published on 26 February 2014, entered into force on 10 April 2014 and must be transposed into national law by 10 April 2016. The policy underpinning the Directive is part of the European Commission’s ‘Digital Agenda for Europe’ and the ‘Europe 2020’ strategy for ‘smart, sustainable and inclusive growth’.

The purpose of the Directive is to:

  • Modernise and improve standards of governance, financial management and transparency of all EU collective management organisations (CMOs), so that rights-holders have [...]
Update on the UK Private Copying Exception

Blum_Jeremy2We reported here last month that the private copying exception, which took effect on 1 October 2014 as s.28B of the Copyright, Designs and Patents Act, was declared unlawful by the High Court. The court found that the evidence relied on by the government in order to introduce the exception without also providing a means of “fair compensation” to rights holders was flawed.

In a follow-up judgment, available here, the High Court formally quashed the regulations which created the private copying exception following further submissions from the parties.

Perhaps surprisingly, the regulation was quashed with the agreement of the UK government. The Secretary of State stated that the government [...]

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 [...]

Poland: Appropriate remuneration for an author, Court of Appeal of Kraków, I ACa 1420/14, 30 December 2014

In determining the amount of remuneration that an author might obtain for the copyright in his photographs, it was necessary to determine the remuneration that he would have received if the person who violated his rights had entered into an agreement with the author concerning the use of the work. Such a determination should be based on the remuneration rates in the photography market, taking into account the quality and the possible usage of these photos.

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

Poland: Derived work, Supreme Court of Poland, I CNP 10/14, 14 November 2014

The Supreme Court held that it is a matter of fact, not law, whether a work created from fragments of another work is a derivative work (according to Article 2 of the Copyright Act) or another kind of non-independently created work. Therefore this type of issue cannot be debated in an action for determining the lawfulness of the court’s judgment. The Supreme Court likewise acknowledged the legality of the appeal court’s views with regard to the applicability of Article 78(2) of the Copyright Act, rather than Article 445 §3 of the Civil Code, in cases where damages are sought after the author’s death. Although this legal issue is questionable in the Polish literature, the Supreme Court recog [...]

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