IPPT20170614, CJEU, Brein v Ziggo-XS4ALL
The making available and management of an online sharing platform such as The Pirate Bay that offers an index classifying protected works and a search engine that allows users of that platform to locate those works and to share them in the context of a peer-to-peer network is a “communication to the public”. New public: the operators of The Pirate Bay were informed that this platform provides access to works published without authorisation of the rightholders. Sharing platform such as The Pirate Bay is carried out with the purpose of obtaining profit.
The sale of a multimedia player on which add-ons are installed that link to websites on which protected works are made available to internet users without the consent of the copyright holders, constitutes 'communication to the public'.
Full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory, is not subject to the requirement that authorisation be obtained from the author, provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication.
National legislation which states that there is no copyright infringement in the case of the immediate retransmission by cable including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations is contrary to Article 9 of the Copyright Directive.
The communication of television and radio broadcasts by means of TV sets installed in hotel rooms does not constitute a communication made in a place accessible to the public against payment of an entrance fee.
The conclusion of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled falls within the exclusive competence of the European Union because the body of obligations laid down by the Marrakesh Treaty falls within an area that is already covered to a large extent by common EU rules and the conclusion of that treaty may thus affect those rules or alter their scope. The rules of the Marrakesh Treaty which provide for the introduction of an exception or limitation to the rights of reproduction, distribution and making available to the public cannot be held to have a specific link with international trade such as to signify that they concern the commercial aspects of intellectual property, the rules of the Marrakesh Treaty governing the export and import of accessible format copies do however relate to international trade. The conclusion of the Marrakesh Treaty does not fall within the common commercial policy (article 207 CJEU) because the cross-border exchange for which the Marrakesh Treaty provides cannot be equated with International Trade for commercial purposes.
First acquirer of a computer program may not provide his back-up copy of that program when the original is damaged, destoryed or lost without authorisation of the rightholder.
Article 5(2)(b) of Directive 2001/29/EC precludes national legislation that depends on agreements between, on the one hand, an entity which has a legal monopoly on the representation of the interests of authors of works and, on the other hand, those liable to pay compensation or their trade associations where only the final user can request an unduly paid levy
A member state may require that a provider of access to a communication network prevents that third parties make copyright-protected work available to the general public
Posting hyperlinks to protected works on a website constitutes a communication to the public when those links are provided with the pursuit of financial gain by a person who knew of could reasonably have known the illegal nature of the publication of those works on that other website. Having regard to the foregoing considerations, the answer to the questions raised is that Article 3(1) of Directive 2001/29 must be interpreted as meaning that, in order to establish whether the fact of posting, on a website, hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, constitutes a ‘communication to the public’ within the meaning of that provision, it is to be determined whether those links are provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website or whether, on the contrary, those links are provided for such a purpose, a situation in which that knowledge must be presumed.
Article 5(2)(b) of Directive 2001/29 does not allow financing fair compensation from the General State Budget.
Copyright Law: Concept “similarity” has the same meaning when used for relative grounds for refusal in article 8(1)(b) (similarity with earlier trade mark for similar goods and services) and article 8(5) CTMR (similarity with earlier trade mark). Article 8(5) CTMR requires a lower similarity than article 8(1) under b CTMR because only a possible link between marks and no confusion is required. The General Court EU was right in saying that only a small conceptual similarity was required for likelihood of confusion as set out in 8(1)(b) CTMR. Because of the small conceptual similarity should have examined whether the public is establishing a link with the renown or reputation of the earlier mark for the purpose of 8(5) CMTR.
Copyright Law: No act of communication to the public at ‘point to point’ transmission of programme-carrying signals to distributors
Copyright Law: Restrictions for (i) reproduction on paper or any kind of photographic or (ii) copies for private use. Because of differences in the compensation for damages, the term ‘reasonable compensation’ requires a distinction between (i) reproduction by any random user and (ii) private copies without commercial ends on any medium by a natural person. Member state is not authorized to allocate a part of the fair compensation payable to rightholders to the publishers of works created by authors, those publishers being under no obligation to ensure that the authorise benefit, even indirectly, from some of the compensation of which they have been deprived.Fair compensation can not be recovered via an undifferentiated system which also covers (i) the copying of sheet music and (ii) which also covers counterfeit reproductions made from unlawful sources.System that combines, in order to finance the fair compensation payable to rightholders, two forms of numeration namely (i) lump-sum remuneration paid prior to the reproduction operation by the manyfacturer, and (ii) proportional remuneration paid after that reproduction operation and determined solely by mean of a unit price multiplied by the number of copies produced.
Uniform interpretation of “Communication to the public” in article 3(1) Directive 2001/29/EC and article 8 Directive 2006/115/EC. Act of communication to the public in case of intentionally transmitting copyright protected works by an operator of a rehabilitation centre to patients via television sets that are placed in several areas in this centre. The presence of a profit-making nature is relevant for determining the amount of remuneration.
A holder of an exclusive right to distribute is allowed to prohibit offers for sale or targeted advertisement, even if it is not established that the advertisement gave rise to the purchase of that protected work by an EU buyer, in so far as that advertisement invited EU consumers to purchase it. It is irrelevant for an infringement of the distribution right, that such advertising is not followed by the transfer of ownership of work.
IPPT20150326, CJEU, C More Entertainment v Sandberg
Broadcasting organizations: the exclusive rights of broadcasting organizations as referred to in Article 3(2)(d) of the Copyright Directive can be expanded to live sports events on the internet, if it does not affect the protection of copyright.
IPPT20150122, ECJ, Hejduk v EnergieAgentur
Judge Member State wherein allegedly infringing website can be consulted, competent as judge of place where damage occurred. Seised court has jurisdiction only in regard of damage caused in own Member State.
IPPT20150115, CJEU, Ryanair v PR Aviation
Database directive: does not preclude the author of the database from laying down contractual limitations on its use by third parties
Embedding a copyright protected work on a website through framing technology cannot be considered as ‘communication to the public’ according Art. 3(1) 2001/29/EC, as long as the copyright protected work is not communicated to a new public, nor communicated by technical means that differ from the technical means of the initial communication.
Copyright Law: The concept 'purchase of licensing terms'in Article 5(3)(n) Copyright Directive includes that the concept of 'purchase or licensing terms' provided for in Article 5(3)(n) of Directive 2001/29 must be understood as requiring that the rightholder and an establishment, such as a publicly accessible library, referred to in that provision must have concluded a licensing agreement in respect of the work in question that sets out the conditions in which that establishment may use that work.
IPPT20140903, CJEU, Deckmyn en Vrijheidsfonds v Vandersteen
Parody: must be regarded as an autonomous concept of EU law and must strike a fair balance between the interests and rights of the holder of the creator of the work and the freedom of expression
IPPT20140605, CJEU, PRCA v NLA
Acts of reproduction: when viewing website in terms of on-screen copies and cached copies of a temporary nature and when viewing website is integral and essential part of technological process.
IPPT20140410, CJEU, ACI v Thuiskopie
Private copy exception: national legislation that makes no distinction between lawful private copies from unlawful sources and lawful sources conflict with objectives of Copyright Directive
Jurisdiction: a court of Member State within which damage is caused, where supposed perpetrator did not act, has jurisdiction only to rule on damage cause within territory of Member State to which it belongs
IPPT20140327, CJEU, UPC Telekabel v Constantin Film
ISP's: a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, is using the services of the internet service provider of the persons accessing that subject-matter
Communication to the public: communication to the public by providing access to works via television and radio devices in rooms of spa establishment
IPPT20140213, CJEU, Svensson v Retriever
Provision of clickable links is an act of communication: making it available to indeterminate and fairly large number of recipients. No act of communication to new public when clickable links provide direct access to original site; users deemed to be part of the public taken into account during initial communication.
IPPT20140206, CJEU, Blomqvist v Rolex
Council Regulation 1383/2003: affords protection over goods sold through an online sales website in a non-member country from the moment that the goods enter the territory of the Member State, irrespective of whether the goods were subject of an offer for sale or advertising targeting consumers of that State, prior to the sale.
Videogame: complex matter comprised of computer program and graphic and sound elements. Legal protection against circumventing technological measures: only applies in the light of protecting the rightholder against acts which require his authorization. A “technological measure” can also include technological measures portable equipment or consoles intended to ensure access to those games and their use. National court should determine efficacy of other measures or measures which are not installed in consoles, taking into account proportionality, effectivity and actual use.
IPPT20131003, CJEU, Pinckney v Mediatech
Jurisdiction: court of the location where the damage as a result of copyright infringement has taken place only has jurisdiction to determine the damage caused in the state which it is situated.
IPPT20130711, CJEU, Amazon v Austro-Mechana
System of indiscriminate application of private copying levy on placement on the market for commercial purposes under a pecuniary claim by all natural persons, with reimbursement permitted in case use of media does not meet levy criteria, where justified as a result of practical difficulties and the right to reimbursement is effective
Rebuttable presumption of private use by natural persons is permitted under those circumstances
System whereby half of funds received shall be paid to social and cultural institutions set up for the benefit of those entitled, is permitted
IPPT20130627, CJEU, VG Wort
Copyright Directive not applicable to acts of using protected works between the date of entry into force 22 June 2001 and transposition date 22 december 2002
IPPT20130331, CJEU, ITV v TVCatchup
Communication to the public through direct retransmission of internet stream of television broadcast by another organisation:
- Funding by advertising and profit-making nature of retransmission not influential
- Unimportant whether organisations compete
IPPT20130122, CJEU, Sky Osterreich v ORF
Article 16 (freedom to conduct a business) and article 17 (acquired legal position) of Charter do not preclude limited compensation for short news reports of major events under article 15(6) of Audivisual Media Services Directive: priority is given to the public access to information over contractual freedom.
Copyright: Distribution to the public in a Member State: when a trader targets the public in that Member State and enables delivery in that Member State, whether or not via a third party. Articles 34 and 36 TFEU do not preclude (national) criminal prosecution for prohibited distribution to the public, concluded in Member State where works are not or no longer protected by copyright
Functionality of computer program, programming language, and format of data files not a form of expression of that program; not protected by copyright. Licensee allowed to use and to analyse he program to determine the ideas and principles of program. Reproduction in computer program or user manual of elements, protected by copyright, from another program, may constitute infringement. Individual keywords, syntax, commands, options, defaults, etc., not an intellectual creation; the choice, sequence and combination of words, figures or mathematical concepts however might be.
Copyright Directive makes aspects of Berne Convention part of European Union law. The expression “by means of their own facilities” must be interpreted within the framework of European Union law. By means of their own facilities also includes third parties acting on behalf of or under the responsibility of broadcasting organisation. Broadcasting organisation is required to pay compensation for any adverse effects of the acts and omissions of such third party
Exhaustion of the distribution right with regard to a copy of a computer program that has been licensed for an unlimited period in return for payment of a fee. Second and subsequent acquirer of a copy of a computer program for which the distribution right is exhausted is a lawful acquirer of copy of computer program
Internet service provider can be ordered to give personal information of alleged infringer to copyright holder
“Communication to the public” does not cover broadcasting, free of charge, of phonograms within private dental practices, enjoyed by patients without any active choice on their part. According to European law, individuals may not rely directly on TRIPS, WPPT and the Rome Convention. Concept of “communication to the public” must be interpreted in the light of TRIPS, WPPT and the Rome Convention.
Hotel operator (i) which provides televisions and/or radios is a user making a communication to the public of a phonogram which may be played in a broadcast and is obliged to pay equitable remuneration, and (ii) which provides other apparatus and phonograms which may be played on or heard from such apparatus is also a user making a communication to the public of a phonogram and is obliged to pay equitable remuneration. Hotel operator does not fall under the private use exception
Originality: making free and creative choices and thus stamp personal touch. Copyright on database: selection or arrangement of the data which amounts to an original expression of the creative freedom of its author; not mere intellectual effort, labour an skill. Copyright on database: Database Directive harmonises copyright protection of databases
Injunction against hosting service provider to install contested filtering system precluded: that Directives 2000/31, 2001/29 and 2004/48, read together and construed in the light of the re-quirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against a hosting service provider which requires it to install the con-tested filtering system.
Rights to exploit a cinematographic work must by operation of law be vested in the principal director. Rebuttable presumption of transfer of rights to exploit the cinematographic work allowed. Principal director must be directly entitled to the right to fair compensation for private copying. Presumption of transfer of right to fair compensation for private copying not allowed.
Acts of temporary reproduction allowed during data capture process. During a data capture process, those acts must constitute an integral and essential part of a technological process, notwithstanding they initiate and terminate that process and involve human intervention
Connected claims: risk of irreconcilable judgments. Intellectual creation and scope of protection: portrait photograph. Newspaper publisher may not use of their own volition a work protected by copyright by invoking an objective of public security. Right to quote: not required that press report quoting a work is itself protected by copyright; obligation to indicate the source, including the name of the author or performer.
Communication to a public: a public which is not present: no direct physical contact.
Precluded injunction made against an ISP to install peer-to-peer filtering system: requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other.
Indirect and direct transmission of TV programs: a single, indivisible communication to the public, which may require authorisation. Authorisation for satellite package provider required – new public
CONDITIONAL ACCES DIRECTIVE: “illicit device” does not cover foreign decoding devices which have been falsely obtained. Prevention of use of falsely obtained foreign decoding devices permitted under directive. Ban on import or use of foreign decoding devices not permitted also in case of falsely obtained devices for commercial purposes. Acts of reproduction within the memory of a satel-lite decoder and television screen permitted. Communication to the public: transmission to cus-tomers present in a public house. Obligation not to supply decoding devices outside licensed territory not permitted. National intellectual property protection of sporting events permitted.
Remuneration for public lending has to take account of the extent of public lending.
Fair compensation for reproduction on a private basis: Final user is responsible for paying fair compensation for reproduction on a private basis. System of private copying levy open to Member States when able to pass on that levy in price paid by final user. With system of private copying levies it is for the Member State to ensure authors actually receive fair compensation. Interpretation of national law to allow recovery from person acting on a commercial basis, if recovery from purchaser is impossible, permitted.
Copyright protection not affected by expiration of national design right. Legislation reviving copyright protection – no safe harbour for previous public domain designs irrespective of date of manufacture or marketingof products.
Graphic user interface not a form of expression of a computer program: a graphic user interface is not a form of ex-pression of that program within the meaning of Article 1(2) of Directive 91/250 and thus is not protected by copyright as a computer program under that directive. Such an interface can be protected by copyright if that interface is its author’s own intellectual creation. Criterion of originality cannot be met by compo-nents of the graphic user interface which are differentiated only by their technical function. Broadcasting of graphic user interface no com-munication to the public: television broadcasting of a graphic user interfa-ce does not constitute communication to the public of a work protected by copyright within the mea-ning of Article 3(1) of Directive 2001/29.
IPPT20101021, CJEU, Padawan v SGAE
Link necessary between the levy to finance fair compensation and the deemed use of digital reproduction equipment. Fair compensation - damages: Based on harm caused to authors by the introduction of the private copying exception
Permissible restriction of the transfer on succession of the resale right to the artist's heirs: Article 6(1) of Directive 2001/84 must be interpreted as not precluding a provision of national law which reserves the benefit of the resale right to the artist’s heirs at law alone, to the exclusion of testa-mentary legatees. It is for the referring court to take due account of all the relevant rules for the resolution of conflicts of laws relating to the transfer on succession of the resale right.
IPPT20100318, CJEU, Hotelier
Communication to the public: The hotelier, by installing televisions in his hotel rooms and by connecting them to the central antenna of the hotel, thereby, and without more, carries out an act of communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
Abuse dominant position by requiring payment of a fee for all packaging put into circulation in Germany, even if there is no use of the DGP system
The act of printing out an extract of 11 words, during a data capture process does not fulfil the condition of being transient in nature and, therefore, that process cannot be carried out without the consent of the relevant rightholders. An extract of a protected work comprising 11 words, is such as to come within the concept of reproduction in part if the elements thus reproduced are the expression of the intellectual creation of their author.
IPPT20090219, ECJ, LSG v Tele2
Obligation to disclose to private third parties personal data relating to Internet traffic in relation to copyright infringement allowed. Internet access providers are intermediaries
Abuse of a dominant position by copyright management organisation: A remuneration model according to which the amount of the royalties corresponds to the use is not abuse of a dominant position. Using a different remuneration model for commercial companies and public service undertakings is abuse of a dominant position.
Distribution demands transfer ownership of object: That the concept of distribution to the public, otherwise than through sale, of the original of a work or a copy thereof, for the purpose of Article 4(1) of Directive 2001/29, applies only where there is a transfer of the ownership of that object.
Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings.
National provisions such as those at issue in the main proceedings – in so far as such provisions introduced, after the implementation of Directive 83/189, the obligation to affix the distinctive sign ‘SIAE’ to CDs of works of figurative art for the purposes of marketing them in the Member State concerned – constitute a technical regulation which, if not notified to the Commission, cannot be invoked against an individual.
From the obligation to remunerate authors for the lending carried out by them, Ireland has failed to fulfil its obligations.
The distribution of a signal by means of television sets by a hotel to customers staying in its rooms, whatever technique is used to transmit the signal, constitutes communication to the public. The private nature of hotel rooms does not preclude the communication of a work by means of television sets from constituting communication to the public within the meaning of Article 3(1) of Di-rective 2001/29.
IPPT20060912, ECJ, Laserdisken v Kulturministeriet
Copyright: exhaustion of distribution rights harmonized: requires placing work on the market within the Community by the rightholder or with his consent. Article 4(2) Directive 2001/29 valid
No rental right for producers of videograms
IPPT20060706, ECJ, Commission v Portugal
Failure to properly implement directive by exempting all categories of public lending establishment form remuneration obligation
Article 12 EC, which lays down the general principle of non-discrimination on grounds of nationality, must be interpreted as meaning that the right of an author to claim in a Member State the copyright protection afforded by the law of that State may not be subject to a distinguishing criterion based on the country of origin of the work.
IPPT20030115, USSC, Eldred v Ashcroft
Copyright Term Extension Act (“CTEA”) The CTEA’s extension of existing copyrights does not exceed Congress' power under the Copyright Clause. Guided by text, history, and precedent, this Court cannot agree with petitioners that extending the duration of existing copyrights is categorically beyond Congress' Copyright Clause authority. In placing existing and future copyrights in parity in the CTEA, Congress acted within its authority
The prohibition of discrimination precludes the term of protection granted by the legislation of a Member State to the works of an author who is a national of another Member State being shorter than the term granted to the works of its own nationals.
Copyright term directive – transitional law: Article 10(3) of Council Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights does not preclude a provision of national law which lays down a limited period in which soundrecording media may be distributed by persons who, by reason of the expiry of the rights relating to those media under the previous legislation, had been able to reproduce and market them before that Law entered into force.
IPPT19971104, ECJ, Dior v Evora
The proprietor of a trademark or holder of a copyright can not oppose a reseller that advertises in a way that is customary for that sector of trade, unless use of the goods seriously damages the reputation of the trademark.
The principle of non-discrimination precludes a Member State from making the grant of an exclusive right subject to the requirement that the person concerned be a national of that State.
Originality necessitates independent creation and a modicum of creativity.
Originality compilation of facts: Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protec-tion extends only to those components of the work that are original to the author, not to the facts them-selves. This fact/expression dichotomy severely limits the scope of protection in fact-based works. Originality not “sweat of the brow” is the touch-stone of copyright protection
IPPT19890124, ECJ, EMI Electrola v Patricia
Difference in protection period under national law: Articles 30 and 36 of the EEC Treaty do not preclude the application of a Member State' s legislation which allows a producer of sound recordings in that Member State to rely on the exclusive rights to reproduce and distribute certain musical works of which he is the owner in order to prohibit the sale, in the territory of that Member State, of sound recordings of the same musical works when those recordings are imported from another Member State in which they were lawfully marketed without the consent of the aforesaid owner or his licensee and in which the producer of those recordings had enjoyed protection which has in the mean time expired
IPPT19880517, ECJ, Warner Brothers
Copyright and free movement of goods: No exhaustion: National right to make the hiring-out of video-cassettes subject to permission, not exhasuted when the video-cassettes have - with the consent of copyright holder - been put into circulation in another Member State whose legislation enables the author to control the initial sale, without giving him the right to prohibit hiring-out
IPPT19810122, ECJ, Dansk Supermarked v Imerco
Judicial authorities may not prohibit, on the basis of a copyright or of a trade mark, the marketing of a product if that product has been lawfully marketed on the territory of another member state by the proprietor of such rights or with his consent. Mere import cannot be classiefied as unfair commercial practice, either by law or by agreement
Exhaustion: Neither the copyright owner or his licensee, nor a copyright management society acting in the owner's or licensee's name, may rely on the exclusive exploitation right conferred by copyright to prevent or restrict the importation of sound recordings which have been lawfully marketed in another member state by the owner himself or with his consent
IPPT19710608, ECJ, Deutsche Grammophon Gesellschaft v Metro
The exercise of exclusive right to prevent the marketing of products distributed with the consent of the holder of the right in another member state is in conflict with free movement of products. Mere exercise of an exclusive right not sufficient to constitute a dominant position; the power to impede the maintenance of effective competition over a considerable part of the relevant market also require. Difference in price may be decisive factor to determine abuse.
IPPT19540308, USSC, Mazer v Stein
Statuettes copyrightable. Idea-expression dichotomy: Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea - not the idea itself.Utilitarian-nonutilitarian dichotomy: Regulation 202.8, supra, makes clear that artistic articles are protected in "form but not their mechanical or utilitarian aspects."