2021

IPPT20211028, CJEU, Ferrari v Mansory
Making available to the public of a design consisting of a part of a (complex) product (article 3(a) CDR, article 4(2) CDR, article 6(1) CDR, article 11 CDR) The making available to the public of images of a product (such as the publication of photographs of a car) entails the making available to the public of a design, consisting of (a) part of that product or of (b) a component part of that product, as a complex product, provided that the appearance of that part or component part is clearly identifiable at the time the design is made available. In order for it to be possible to examine whether that appearance satisfies the condition of individual character (article 6(1) CDR), it is necessary that the part or component part in question constitute a visible section of the product or complex product, clearly defined by particular lines, contours, colours, shapes or texture.

IPPT20211014, CJEU, Nadorcott mandarin trees

The three-year period of prescription in respect of claims of a holder of a plant variety right starts to run from the date on which, first, the plant variety right was granted and, second, the holder had knowledge of the act and of the identity of the party liable, irrespective of the ongoing nature of an act of infringement or the date on which that act ended. Article 96 of the Community Plant Variety Rights Regulation (No 2100/94) lays down two conditions for determining the time from which the three-year period starts to run, one preceding the other. In case of a set of acts of infringement brought after more than three years have elapsed are time barred only from when, first, the plant variety right was finally granted and, second, the holder had knowledge of each individual act and of the identity of the party liable. The unauthorised acts referred to in article 13(2) of the regulation Community Plant Variety Rights Regulation (No 2100/94) are those which would have required authorisation of the holder of the Community plant variety right and therefore, for the purposes of applying Article 96 of Regulation No 2100/94, each act of infringement corresponding to the acts listed in Article 13(2) of that regulation must be taken into account individually, irrespective of whether it is repeated, ongoing or forms part of a set of acts.

IPPT20211006, CJEU, Top System

The lawful purchaser is entitled to decompile all or part of the computer program to correct errors in accordance with article 5 section 1 directive 91/250 (Software Directive), including when the correction consists in disabling a function that is affecting the proper operation of the application of which the program forms a part of. This interpretation is not called into question by Article 6 of Directive 91/250 which, contrary to Top System’s submission, cannot be interpreted as meaning that the only permitted decompilation of a computer program is that effected for interoperability purposes. The lawful purchaser of a computer program is not required to satisfy the requirements laid down in Article 6 of the Software Directive when he wishes to decompile that program in order to correct errors affecting the operation thereof; Any use of such decompilation may only be conducted to the extent necessary to effect that correction. Decompilation may only be conducted in compliance with the conditions laid down in the contract with the holder of the copyright in that program and the end result of decompilation may not be used for purposes other than the correction of errors. Any reproduction of that code remains subject to the authorisation of the holder of the copyright in that program.

IPPT20210617, CJEU, Mircom v Telenet BVBA

Uploading previously downloaded media file containing a protected work by a user to the terminal equipment of another user constitutes making available to the public: users peer-to-peer network have knowledge of granting access to protected works to an indeterminate number of potential recipients. Holders of IP rights who only want to claim damages can make use of measures, procedures and remedies from the Enforcement Directive: to ensure a high level of protection of IP rights in the internal market. Article 6 GDPR does not, in principle, preclude the systematic processing of IP addresses of users of peer-to-peer networks in the event of infringing acts: the recovery of claims in the prescribed manner by an assignee may constitute a legitimate interest.

IPPT20210309, CJEU, VG Bild-Kunst v SPK

The embedding, by means of framing, of a work available on a freely accessible website with the consent of the right holder, on the website of a third party, constitutes ‘communication to the public’ if, in doing so, the adopted or imposed measures to prevent framing are circumvented: to permit such inclusion would be incompatible with the exclusive and inexhaustible right of the copyright holder to authorise or prohibit any communication to the public of his works pursuant to Article 3(1) and (3) of the Copyright Directive.

IPPT20210306, CJEU, CV-Online Latvia v Melons

Indexing and copying to your own server of substantial content of a database which is freely accessible on the internet is extraction and re-utilisation within the meaning of Article 7 Database Directive, which may be prohibited provided that they have the effect of depriving that person of income intended to enable him or her to redeem the cost of that investment.

IPPT20210121, CJEU, UMCR-ADA v Asociatia Culturala Suflet de Roman

The holder of copyright in musical works supplies services for consideration within the meaning of the VAT Directive: there is a legal relationship of reciprocal exchange of services and remuneration are actual consideration for the service. Collective management organization is acting as a taxable person within the meaning of Article 28 of the VAT Directive: in this case, collective management is mandatory, exclusive property rights cannot be transferred to the organisation, the organisation is obliged to grant non-exclusive licenses and the permission granted will include amounts received by the organisation in its own name but on behalf of the copyright holders