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Red light for Sabam’s pricing system for Internet access providers: up- and downstream IAP traffic do not constitute communication or making a work available to the public

Rosario-Debilio2On the 13th March 2015, the President of the Brussels French speaking Court of First Instance pronounced a judgment to the detriment of Sabam, an important collective management organisation in Belgium. In 2011 Sabam decided to claim a fee from Internet access providers in exchange for a licence which allows these providers to communicate copyright protected works to the public (see here). I shall first discuss the control on the pricing system set up by Sabam. I shall then study how electronic communication law’s notions were used to define the scope of this pricing system. A final discussion will be dedicated to the rest of the procedure in this case setting the Belgian State against Sab [...]

Blocking Marrakesh: an argument based on a house of cards

Ana-Ramalho Back in April 2014, following the Council’s authorization, the EU signed the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or otherwise Print Disabled (“Marrakesh Treaty”). Under the Treaty, parties are to adopt copyright exceptions to facilitate access to formats of works accessible to persons who are blind, visually impaired, or print disabled. Countries must moreover provide for the cross-border exchange of accessible-format works.

There were however no less than 7 Member States that considered that the Treaty fell under an area of shared competence between the EU and the Member States. According to the opposing Member State [...]

USA: Gregory S. Markantone, DPM, P.C. v. Podiatric Billing Specialists, LLC, United States Court of Appeals, Third Circuit, No. 14-3097, 28 April 2015

A podiatric medical practice and its principal could not bring a copyright infringement claim against a billing company for unauthorized use of the practice’s medical data, including office procedures, patient information, and operational rules, because the data at issue had not been registered with the Copyright Office, the U.S. Court of Appeals in Cincinnati has decided (Gregory S. Markantone, DPM, P.C. v. Podiatric Billing Specialists, LLC, April 27, 2015, Fuentes, J.). In addition, the plaintiffs failed to allege that the billing company violated any of the exclusive rights listed in Section 106 of the Copyright Act.

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

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France: Apple Distribution International, Conseil d’Etat, 358734, 19 November 2014

In this judgment, the French Supreme administrative Court, the Conseil d’Etat, confirms the validity of a decision taken on 9 February 2012 by the Commission in charge of setting the compensation for private copying. This decision adopted the new tariffs applicable for recording media subject to the remuneration for private copying, including portable media players, external hard drives, smartphones and tablet computers.

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

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EAÜ v MTÜ Safari Seiklused: An interesting Estonian case about damages awardable for copyright infringement

Elise-Vasamae-KCBIn its recent judgment in EAÜ v MTÜ Safari Seiklused (the “Safari” case), the Estonian court held that where a person has signed a licence agreement with an authors’ collecting society, with the intention of using the rights of authors commercially for a public performance, they must unquestioningly fulfil all of the terms of that agreement. According to the licence agreement signed between an Estonian concert organiser, MTÜ Safari Seisklused, and the Estonian Authors’ Society (EAÜ) the amount of the licence fee did not depend on how many authors EAÜ in fact represents. Therefore, although in this case EAÜ represented only one author from three whose works were being played publicl [...]

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

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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 [...]

Flexibility. Is it all a matter of methodology and assumptions?

Image from page 53 of "American Fence, Catalog no. 27" (1915) Benjamin Gibert’s report for the Lisbon Council entitled ‘The 2015 Intellectual Property and Economic Growth Index: Measuring the Impact of Exceptions and Limitations in Copyright on Growth, Jobs and Prosperity’ raised eyebrows in The Netherlands. Not that the conclusion that ‘countries that employ a broadly “flexible” regime of exceptions in copyright also see higher rates of growth in value-added output throughout their economy’ came as a surprise, but no one ever expected The Netherlands to score lower than France on the topic of flexibility in copyright! Really!

How to explain my and other Dutch copyright experts’ dismay at this finding? Would the answer perhaps lie in the methodolo [...]

The Next Great Copyright Act: Remember the Authors!

This article was originally published on the Media Institute website – see here.  It is reproduced here with the kind permission of the author.

In a previous column for the Media Institute (Feb. 17, 2015), I urged that any copyright reform legislation that emerges from the preparations for “the next great copyright act” should ensure both authors’ attribution and economic interests.  The earlier column addressed attribution; this column will consider remuneration, a matter that has lately been the subject of copyright reform in the Netherlands and France as well.

The Anglo-American legal tradition, not generally known for solicitude toward the weaker party in contract negotiations, [...]

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 [...]

TV Catchup in CJEU Repeat

Savvides_TheoIn a decision that could have serious implications for websites providing real time streaming of free to air broadcasts, the English Court of Appeal has recently handed down its Judgment in the case of ITV Broadcasting Limited and others v TV Catchup Limited and others [2015] EWCA Civ 204.  The outcome is that the action brought by a number of British free to air broadcasters (ITV, Channel 4 and Channel 5) against TV Catchup, an internet TV streaming service, has been referred to the Court of Justice of the European Union (the “CJEU”) for a second time. 

Background

Readers may remember that this case has already been referred to the CJEU (Case C-607/11), who held that the concept of c [...]

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