2021 CJEU
Print this pageIPPT20211028, 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.
IPPT20210916, CJEU, Software Incubator v Computer Associates
The term 'sales of goods' includes electronic delivery of computer software: the concept of 'sales of goods' referred to in Article 1(2) of Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents must be interpreted as meaning that it may refer to the electronic delivery of computer software to a customer against payment of a price, when such delivery is accompanied by the granting of a permanent license to use that software.
IEPT20210909, CJEU, Champanillo
Article 103(2)(b) of Regulation No 1308/2013 (common organisation of the markets for agricultural products) protects designations of origin (PDO) against acts which concern both products and services. The 'evocation’ referred to in Article 103(2)(b) of Regulation No 1308/2013 does not necessarily require that the product covered by a PDO and the product or service covered by the contested sign be identical and similar. The concept of 'evocation’ covers a situation in which the sign used to designate a product contains part of a protected geographical indication or of a PDO. 'Evocation' is present when the use of a designation evokes, in the minds of a reasonably well-informed and reasonably observant average European consumer, a sufficiently direct and obvious link between that designation and the PDO. The existence of such a link may be shown by various elements, in particular the fact that that name contains part of the protected name, the phonetic and visual similarity between the two names and the resulting correspondence and, even in the absence of those elements, by the fact that the PDO and the name in question are conceptually close or that the products covered by that PDO and the products or services covered by that name are similar. ‘Evocation’ is not dependent on a finding of unfair competition.
At the current state of EU law the operator of a video-sharing platform or a file-hosting and ‑sharing platform, on which users can illegally make protected content available to the public, does not make a ‘communication to the public’ of that content: users perform ‘act of communication’ now that they act autonomously and are responsible for their own actions, the mere fact that the use of a platform is necessary in order for the public to be able to access the work is not sufficient to assume that the operator of the online platform performs an ‘act of communication’, the operator does, however, communicate this content to the public in violation of copyright if it does not merely make the platform available, but also intervenes with full knowledge of the consequences of doing so, with the aim of giving the public access to the protected works, deliberate character of intervention can appear from not putting in place the appropriate technological measures that can be expected from a reasonably diligent operator in its situation in order to counter credibly and effectively copyright infringements on that platform, the mere fact that the operator knows that protected content is made available illegally on its platform is not sufficient ground to conclude that it intervenes with the purpose of giving internet users access to that content, unless that operator, despite having been warned by the rightholder refrains from expeditiously taking the measures necessary to make that content inaccessible, aim of making profit is not a decisive circumstance.The operator can invoke the liability exemption laid down in Article 14(1) of the Directive on Electronic Commerce if he does not play an active role of such a kind as to give it knowledge of or control over the content uploaded to its platform: for such an operator to be excluded it must have knowledge of or awareness of specific illegal acts committed by its users relating to protected content. Article 8(3) of the Copyright Directive does not preclude that a copyright holder or holder of a related right may not obtain an injunction against an intermediary whose service has been used by a third party to infringe his or her right, that intermediary having had no knowledge or awareness of that infringement, unless, before court proceedings are commenced, that infringement has first been notified to that intermediary and the latter has failed to intervene expeditiously in order to remove the content to ensure that such infringements do not recur: in the absence of such a condition, such an operator would be required to actively to monitor all the content uploaded by users of that platform in order to prevent infringements of that type and to avoid being the subject of an injunction and being exposed to those costs on account of those infringements, such a condition is compatible with Article 15(1) of the Directive on Electronic Commerce.
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.
