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Fair compensation for private use of broadcasts broadcasting organisations. Article 5(2)(b) Copyright Directive (2001/29) precludes national legislation which excludes broadcasting organisations, whose fixations of broadcasts are reproduced by natural persons for private use and for non-commercial ends, from the right to the fair compensation provided for in that provision, in so far as those organisations suffer potential harm which cannot be classified as ‘minimal’.
IPPT20230713, CJEU, Ocilion v Seven.One
No “private copying” when at the initiative of an end user by an operator of online retransmission of TV broadcasts recorded TV broadcasts, are made available to an indefinite number of users wishing to view the same content. No 'communication to the public' by operator of online retransmission of TV broadcasts who provides its commercial customers with hardware and software that enables that commercial customer to provide its own customers with delayed access to online TV broadcasts, even though it knows that its service can be used to access protected programme content without the consent of its authors.
Consent by holders of copyright and related rights is required to be obtained only in the Member State in which the program-carrying signals are introduced into the communication chain running to the satellite. Such communication to the public by satellite is deemed to take place only in the Member State in which the program-carrying signals are introduced into the communication chain running to the satellite. It would be contrary to the objective of Directive 93/98 for a satellite package provider to have to obtain consent from the relevant holders of copyright and related rights in other Member States as well.
Collective management organisations entrusted with exemptions from payment and reimbursements must grant this in accordance with objective criteria which do not allow that legal person to refuse an application on the basis of considerations and the decisions of that legal person refusing such an application may be challenged before an independent body. National legislation which provides that exemption certificates in respect of compensation for private copying and reimbursements must be granted in good time on the basis of objective criteria which do not entail any discretion on the part of the person competent to examine applications submitted for that purpose is, in principle, capable of complying regards the requirements arising from Article 5(2)(b) of the directive. In order to avoid any risk of bias on the part of such a legal person in the grant of exemption certificates and reimbursements it must be possible to challenge the decisions of that legal person refusing to grant such a certificate or reimbursement before an independent body, whether judicial or otherwise. Collective management organisations may request access to the information necessary for the exercise of the powers of review. In so far as the information in question is confidential, the legal person and the management organisations which become aware of such information in the context of their duties are required to safeguard the confidential nature of that information.
IPPT20220426, CJEU, Poland v European Parliament and Council
By its action, Poland, asks to annul the obligations imposed on online content-sharing service providers. The prior automatic review (filtering) of content uploaded by users) has been accompanied by appropriate safeguards by the EU legislature.
No exclusive right for broadcasting organisation regarding cable retransmission. Article 1(3) of the Satellite and Cable-directive (93/83/EEC) must be interpreted as meaning that it does not provide for an exclusive right for broadcasting organisations to authorise or prohibit cable retransmission, within the meaning of that provision. Cable retransmission limited to retransmission by an operator of a classic cable network. No “cable retransmission” in case of the simultaneous, unaltered and unabridged distribution of television or radio programmes broadcast by satellite and intended for reception by the public, where that retransmission is carried out by a person other than a cable operator, within the meaning of that directive, such as a hotel, does not constitute cable retransmission.
The expression ‘reproductions on any medium’, referred to in that provision, covers the saving for private purposes by the provider of a cloud computing service. National legislation that does not make the providers of storage services in the context of cloud computing subject to the payment of fair compensation is not precluded, in so far as that legislation provides for the payment of fair compensation to the rightholders.
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.
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.
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.
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.
Submission of non-physical copies of a work not distribution to the public but communication to the public within the meaning of the Copyright Directive: As a preliminary point, it must be noted that it is apparent from the request for a preliminary ruling that the photograph at issue in the main proceedings was sent by electronic mail to the court seised, in the form of an electronic copy. The transmission by electronic means of a protected work to a court, as evidence in legal proceedings between individuals, cannot be regarded as a ‘communication to the public’: the protected work is received by a clearly defined and closed group of persons exercising public service functions in a court, and not to an indefinite number of potential recipients.
Articles 2 to 5 of Directive 2001/29 must be interpreted as meaning that the copyright protection provided for therein applies to a product whose shape is, at least in part, necessary to obtain a technical result: the product must be an original work resulting from intellectual creation. The existence of other possible shapes which can achieve the same technical result is not decisive, the national court has to verify this and the reffering court has to take accoun of all the relevant aspects of the present case, as they existed when that subject matter was designed, irrespective of the factors external to and subsequent to the creation of the product.
The hiring out of motor vehicles equipped with radio receivers does not constitute a communication to the public: in the case of the supply of a radio receiver forming an integral part of a hired motor vehicle, which makes it possible to receive, without any additional intervention by the leasing company, the terrestrial radio broadcasts available in the area in which the vehicle is located there is no intervention to give his customers access to a protected work, such a supply differs from (case-law on) acts of communication by which service providers intentionally broadcast protected works to their clientele, by distributing a signal by means of receivers that they have installed in their establishment.
The supply to the public by downloading, for permanent use, of an e-book is covered by the concept of ‘communication to the public’: from the explanatory memorandum of the Directive follows that the intention was that any communication to the public of a work, other than the distribution of physical copies of the work, should be covered not by the concept of ‘distribution to the public’, but by that of ‘communication to the public’. Usedsoft judgment - in which the CJEU held that exhaustion does not extend only to copies of computer programs on a physical medium - does not apply to e-books: an e-book is not a computer program, unlike the Software Directive 2009, the EU legislature did not desire assimilation of tangible and intangible copies of works protected for the purposes of the relevant provisions of the Copyright in Information Society Directive, the sale of a computer program on a material medium and the sale of a computer program by downloading from the internet are similar from an economic point of view. However, the supply of a book on a material medium and the supply of an e-book cannot be considered equivalent from an economic and functional point of view, the fact that an e-book may form part of an e-book so as to enable it to be read cannot result in the application of software provisions. Subject to verification by rechtbank Den Haag (District Court, The Hague, Netherlands) must the making available of an e-book by Tom Kabinet be regarded as being communicated to a public: there is “communication” because the works are available to anyone who is registered and that these persons are being able to access the site from a place and at a time individually chosen by him or her, there is a “public” because the number of persons who may have access, at the same time or in succession, to the same work via that platform is substantial, there is a “new public” because a communication is made to a public that was not already taken into account by the copyright holders.
Copyright protection may not be granted to designs on the sole ground that, over and above their practical purpose, they produce a specific aesthetic effect: designs must constitute the expression of original works if they are to qualify for such protection.
A German provision prohibiting internet search engines from using newspaper or magazine snippets without the publisher’s authorisation must be disregarded in the absence of its prior notification to the Commission: that provision constitutes a rule on information society services and, therefore, a ‘technical regulation’ the draft of which is subject to prior notification to the Commission.
Copyright directive does not fully harmonise the exceptions or limitations. European fundamental rights are not capable of justifying exceptions or limitations not provided for in the directive. In striking the balance between the rights of the author and the rights which derogate from the former, there must be fully adhered to the fundamental rights enshrined in the Charter: there is nothing whatsoever in the wording of the Charter or in the Court’s case-law to suggest that an IP-right is inviolable and must for that reason be protected as an absolute right. Article 5(3)(c) of Directive 2001/29 precludes a national rule restricting the application of the exception or limitation provided for in that provision in cases where it is not reasonably possible to make a prior request for authorisation with a view to the use of a protected work for the purposes of reporting current events. Reference made by means of a hyperlink to a file which can be downloaded independently, is covered by quotation exception. A work has ''already been lawfully made available to the public'' within the meaning of the quotation exception where that work, in its specific form, was previously made available to the public with the rightholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation.
Phonogram producer can prevent under Article 2(c) Copyright Directive another person from taking a sound sample, even if very short ("sampling"), of his or her work for another phonogram, unless that sample is included in the phonogram in a modified form unrecognisable to the ear. Concept of ‘copy’ (Article 9(1)(b) Rental Directive) must, according to its preambule, be interpreted consistently with the same concept as it is used in the Geneva Convention. Reproduction of all or a substantial part of a phonogram constitutes a 'copy'. Member State cannot, in its national law, lay down an exception or limitation, other than those provided for in Article 5, to the phonogram producer’s right provided for in Article 2(c) of that directive. Use of a sound sample taken from a phonogram (sampling) may amount to a "quotation", on the basis of Article 5(3)(d) Copyright Directive, provided that that use has the intention of entering into dialogue with the work from which the sample was taken. Concept of ‘quotations’ (Article 5(3)(d) Copyright Directive) does not apply when it is not possible to identify the work concerned by the quotation in question. Article 2(c) Copyright Directive constitutes full harmonisation.
Military status reports constituting purely informative documents, the content of which is essentially determined by the information which they contain and that those reports are thus entirely characterised by their technical function, are not protected by copyright: creativity has not been expressed in an original manner and there is no own intellectual creation. Article 5(3)(c) Copyright Directive does not constitute measures of full harmonisation of the scope of the relevant exceptions or limitations. Discretion in the implementation is circumscribed in several regards: discretion must be exercised within the limits imposed by EU law, discretion cannot be used so as to compromise the objectives of that directive, discretion also circumscribed by Article 5(5) of the directive, lastly, it is for the Member States to ensure a fair balance is struck between the various fundamental rights protected by the European Union legal order. Freedom of information and freedom of the press, enshrined in Article 11 of the Charter of Fundamental Rights of the European Union, are not capable of justifying exceptions or limitations to the copyright not provided for in the Directive. In striking the balance between the exclusive rights of the author and the rights of the users of protected subject matter, the latter of which derogate from the former, a national court must rely on an interpretation of those provisions which fully adheres to the fundamental rights enshrined in the Charter. Publication of military status reports may amount to ‘use of works ... in connection with ... reporting’ within Article 5(3)(c), second case, of Directive 2001/29: reports are presented in a structured form in conjunction with an introductory note, further links and a space for comments
The storage by a retailer of goods bearing a motif protected by copyright on the territory of the Member State where the goods are stored may constitute an infringement of the exclusive distribution right of article 4(1) of the InfoSoc Directive: the distribution right may include an act prior to the actual sale of a work or a copy thereof with the objective of making such a sale, it must nonetheless be proven that the goods concerned are actually intended to be distributed to the public on the territory of the Member State in which those goods are protected by copyright, this cannot be inferred from the mere fact that the stored goods and the goods sold instore are identical, as regards the determination of the purpose of the goods considered, account must be taken of all relevant factors, including the distance between the storage facility and the place of sale, the regular restocking of the shop with goods from the storage facilities at issue, accounting elements, the volume of sales and orders as compared with the volume of stored goods, or current contracts of sale.
The taste of a food product cannot be classified as a work: the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, the taste of a food product will be identified essentially on the basis of taste sensations and experiences which are subjective and variable, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of taste.
Article 8(1) and (2) of the Copyright Directive read in conjunction with Article 3(1) thereof, and Article 3(2) of the Enforcement Directive must be interpreted as precluding national legislation under which the owner of an internet connection used for copyright infringements through file-sharing cannot be held liable to pay damages if he can name at least one family member who might have had access to that connection without providing further details as to when and how the internet was used by that family member: such a legislation would make proving the alleged infringement of copyright and who was responsible for that infringement impossible and thereby not respect the requirement to ensure a fair balance between the various fundamental rights in question.
IPPT20180807, CJEU Land Nordrhein-Westfalen v Renckhoff
Posting a photograph that was published on another website, made with the same technical means, without any restrictive measures and with consent of the copyright holder falls under the concept “communication to the public”: There is an “act of communication” when such posting gives visitors to the website on which it is posted the opportunity to access the photograph on that website. There is communication to a “public” when it covers all potential users of the website on which the photograph is posted. There is a “new public” when that public was not already taken into account by the copyright holders when they authorised the initial communication to the public of their work. Case-law about hyperlinks not applicable.
IPPT20171129, CJEU, VCAST v RTI
National legislation which permits, without the copyright holders’ consent, an online recording service for television programmes which are freely accessible in the territory of the Member State, where it is the provider of the service, and not its users, that receives and records the broadcasting signal, is in breach of Article 5(2) under b of the Copyright Directive. Sum of by recording service targeted persons constitutes a 'public'. Original transmissions are made under specific technical conditions and using a different means of transmission. Transmission referred to thus constitute communications to different publics, and each of them must therefore receive consent.
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.
Lending within the meaning of Article 6(1) Rental Directive covers the lending of a digital copy: in compliance with one copy – one user. Member States may require that the digital copy of the book must have been put into circulation by a first sale or other transfer of ownership of that copy by the holder of the right of distribution to the public or with his consent. Public lending exception precluded if the copy was obtained from an unlawful source.
The Copyright Duration Directive doesn’t apply to copyrights which was initially protected by the national legislation but which was extinguished prior to 1 July 1995. The European Union was not obliged to apply the provisions of the TRIPs Agreement, which states that Article 5(2) Berne Convention (prohibition of formalities) must be complied with, before January 1996. The Member State concerned must comply with its obligations under Article 5(2) of the Berne Convention and is liable for any infringement of that convention.
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.
Article 5(2)(b) Copyright Directive does not preclude legislation for fair compensation in respect of multifunctional media such as mobile telephone memory cards, irrespective of whether the main function of such media is to make such copies, provided that one of the functions of the media enables the operator to use them for that purpose. Legislation for fair compensation in respect of the supply of media that may be used for copying for private use (such as mobile telephone memory cards), but not for components whose main purpose is to store copies for private use (such as the internal memories of MP3 players) is allowed, provided that those different categories are not comparable or the different treatment they receive is justified. Producers and importers who sell mobile telephone memory cards can be required to pay the fair compensation, if they do not know whether the final purchasers of the cards will be individuals or business customers. Member States permitted to provide in certain cases for an exemption from payment of fair compensation, provided the prejudice caused to rightholders is minimal. Where a Member State has excluded any right for rightholders to authorise reproduction of their works for private use, authorisation by the rightholder cannot give rise to an obligation to pay fair compensation. Use technological measures has no effect on the fair compensation payable in respect of private reproductions made by means of such devices. No fair compensation in respect of reproductions made using unlawful sources. Fair compensation allowed in respect of reproductions of protected works made by a natural person by or with the aid of a device which belongs to a third party.
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: consequently, it must be held that, in adopting the injucntion requiring the ISP to install the contested filtering system, the national court concerned would not be respecting the 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. In the light of the foregoing, the answer to the questions submitted in that Directives 2000/31,2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an ISP which requires it to install the contested filtering system.
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
The enforcement of copyrights against the importation and marketing of gramophone records in the United Kingdom lawfully manufactured and placed on the market in the Portuguese Republic by licensees does not constitute a restriction on trade: does not constitute a means of arbitrary discrimination or a disguised restriction on trade between the Community and Portugal.
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
The provisions of the Treaty relating to the freedom to provide services do not preclude an assignee of the performing right in a film in a Member State from relying upon his right to prohibit the exhibition of that film in that State, without his authority, by means of cable diffusion in the film so exhibited is picked up and transmitted after being broadcast in another Member State by a third party with the consent of the original owner of the right
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."