Copyright

• Flos SpA v Semeraro Casa e Famiglia SpA,

The District Court of Milan referred questions to the Court of Justice of the European Union for a preliminary opinion on the interrelation of the EU's Council Directive 93/98 on the duration of copyright protection and Directive 98/71 relating to Registered Designs. The Court held that the duration of copyright protection for a work that qualified for such protection should not be shortened just because it was also protected by a design right that had a shorter period of protection. Under Article 1 of the directive on protection of copyright, the duration of protection for artistic works isfor a period of the life of the author plus 70 years. Article 17 of the directive on design rights provides that: A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State. The dispute before the court related to importation from China of a lamp that copied stylistic and aesthetic features of a design that had been created in 1962 but for which no registered design protection had been obtained, but which the designers claimed had been slavishly copied in the imports from China. The Milan Court asked for an opinion from the Court of Justice as to whether the design of the lamp could still be the subject of enforceable copyright protection both in the case of designs which, before the date of entry into force of the national legislation transposing Directive 98/71 (April 19, 2001), were in the public domain because they had not been registered as designs and in the case of designs which, before that date, entered the public domain because the protection deriving from registration ceased to have effect. On the first question, the Court of Justice in its judgment of January 27, 2011 held that Article 17 of the Design Directive was inapplicable and the only question to be decided was whether under Italian law copyright protection existed in the original lamp and whether it was infringed. It will be recalled that there is still no harmonization of substantive copyright law within the European Union. On the second question, the Court of Justice held that Article 17 of the Design Directive precludes a member state from choosing whether or not to confer copyright protection for a design that was protected by a design right registered in or in respect of a Member State if the design meets the conditions under which copyright protection is conferred. Consequently, designs which were protected by a design right in or in respect of a Member State and which meet the conditions under which copyright protection is conferred by the Member States, in particular the condition relating to the level of originality, and in respect of which the term (of copyright protection afforded by the Copyright Term directive) had not yet expired (when the Copyright Term Directive came into effect), are eligible for copyright protection in that Member State. This conclusion applied irrespective of whether the design in question had already fallen into the public domain before the Copyright Term Directive came into effect, although the revival of copyright protection has no effect on acts of exploitation definitively performed by a third party before the date on which such rights became applicable and member states could adopt legislative measure intended to protect the acquired rights and legitimate expectations of a particular category of third parties as long as the measure does not have the effect of deferring for a substantial period the application of the new rules on copyright protection for designs. A principle of proportionality had to be applied. Consequently a 10 year moratorium in respect of copyright protection as was provided for under Italian law went beyond what is necessary, since, by taking 10 years off the period during which a work is protected (as a rule 70 years after the death of the author), the application of copyright protection is deferred for a substantial period.

Art 8(3) InfoSoc Directive

"Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right." General IPR enforcement provision in Art 11 Enforcement Directive UK transposed Art 8(3) as s97A CDPA: "The High Court ... shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright ..."

• Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor

Background The action was brought by Banner Universal Motion Pictures (BUMP, a UK company), in its capacity as assignee of the rights to the Minute Winner format developed in 2003 by a Danish citizen, against - amongst others - a Swedish TV production company (Friday TV). The claimant submitted that, further to a 2005 meeting in Stockholm at which confidential information was disclosed, including the disclosure of catch-phrase "You have a minute to win it" [at the time when the action was brought in the UK Swedish court had already ruled that no confidential information had been disclosed; the High Court of England and Wales declared that the cause of action estoppel operated], Friday TV misused such information to develop a gameshow format: Minute to Win It. This show first aired in the US in 2010 and was subsequently broadcast in the UK in 2011. Rights to Minute to Win It were sold in over 70 countries around the world. Kat format The Minute Winner format The format of the claimant is described in the Minute Winner Document presented bto the court as follows: "MINUTE WINNER Mini-format Game show Daily or weekly show. Or short one minute between main programs. Morning, Evening or Afternoon program. One minute, or 30 minutes with several winnings." Minute Winner is further described as "a television program in which people are given one minute to win something. WHERE? The program takes place in a studio (and in location: street, shopping mall or unexpected at people's homes). The program is cheaper to produce on location, as it only requires a cameraman, soundman, a host and a stopwatch PRIZES [examples are provided in the rest of the format document] The prizes are sponsored by firms/companies in exchange with advertisements during the program." The Minute Winner Document further adds that "The combination of luck and pure coincidence is a factor that would make people wish that one day they could be stopped on the street and be given a chance to win something on television." As to showing times, the Document clarifies that "The program can be shown daily (optional) as a one-minute fill in, before or after a main program. Minute Winner can also be shown either as a morning program, afternoon program or evening access prime time program." The Document also contains the following disclaimer: "Concept created by Derek Banner/Bump Productions. Copyright 2003, all rights reserved. This format is protected under the international copyright law and intellectual property protection. It shall not be transmitted, exploited, copied produced, used, disclosed or distributed, in part or in its entirety, without permission from its owner." BUMP submitted that copyright subsists in the Minute Winner Document as an original dramatic work under the CDPA. It did not submit that it was also a literary work, because such categories under UK law are mutually exclusive. Originality As regards originality, Snowden J recalled that - further to SAS v WPL [of course informed by relevant case law of the Court of Justice of the European Union which arguably mandates something more than the just "sufficient skill, labour or effort" traditionally indicated by UK courts since University of London Press], what is required is "that the work must be an expression of the author's own intellectual creation ... This does not, however, mean that every constituent aspect of a work must be original. The work must be taken as a whole, and can include parts that are neither novel nor ingenious." Notion of dramatic work The court then recalled that, although the expression 'dramatic work' is not defined in the statute, it must be given its ordinary meaning. This, in Norowzian v Arks Ltd (No 2) was said to be that of "a work of action, with or without words or music, which is capable of being performed before an audience." According to Snowden J, while the unauthorized re-enactment of a recorded episode of a TV game show or quiz show would likely amount to copyright infringement, what was at stake in this case was NOT the single episodes of Minute Winner, since the show was never produced. Dramatic Kat The question was rather "whether what is usually referred to as the "format" of a television game show or quiz show is separately capable of being protected by the law of copyright." The judge noted that his is a question that has been considered in comparatively few cases. A format as a protectable dramatic work Snowden J held that: "it is at least arguable, as a matter of concept, that the format of a television game show or quiz show can be the subject of copyright protection as a dramatic work. This is so, even though it is inherent in the concept of a genuine game or quiz that the playing and outcome of the game, and the questions posed and answers given in the quiz, are not known or prescribed in advance; and hence that the show will contain elements of spontaneity and events that change from episode to episode." [para 43] Requirements for protection What is required for a format to be protected is explained at para 44 of the decision: "copyright protection will not subsist unless, as a minimum, (i) there are a number of clearly identified features which, taken together, distinguish the show in question from others of a similar type; and (ii) that those distinguishing features are connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form." The format at issue Having affirmed the potential eligibility for copyright protection of TV formats, Snowden J however excluded that Minute Winner could be protected. In fact, "tested against any of those requirements [indicated above], there is no realistic prospect of BUMP persuading a court that the contents of the Minute Winner Document qualified for copyright protection. In my view, those contents are both very unclear and lacking in specifics, and even taken together they did not identify or prescribe anything resembling a coherent framework or structure which could be relied upon to reproduce a distinctive game show in recognisable form. The features were, in truth, commonplace and indistinguishable from the features of many other game shows." [para 46] Breach of confidence and passing off The court also dismissed the claims for breach of confidence (for the reason indicated above) and passing off, the latter on grounds that the claimant did not possess the necessary goodwill [including actual customers in the UK, as per the Supreme Court decision in Starbucks] to succeed in its claim. Conclusion This decision sheds light on an area of UK copyright that has remained uncertain for a long time, also due to the rigid and closed system of categories envisaged by the CDPA. However, as the outcome of the case confirms, wannabe holders of copyright in TV formats must pay substantial attention when drafting relevant documents, and provide as many details and information as possible. Another crucial aspect when it comes to potentially commercially valuable works like TV formats is to draft and rely on robust non-disclosure agreements, also to offset the fact that relevant documents should be sufficiently detailed.

• Eva-Maria Painer, C-145/10, EU:C:2011:798

Background The case relates to photographs of Natasha Kampusch at nursery school, taken by Ms Painer, a freelance photographer. Ms Kampusch was abducted in 1998 aged 10, and held captive until she escaped in 2006. Ms Painer had sold copies of the photographs without conferring any rights over them or consenting to their publication. She had simply charged the price for the prints. The copies had her name on. Austrian and German Newspapers and magazines published the photographs after Ms Kampusch's release. Ms Painer sued for copyright infringement in Austria. A number of questions were referred to the CJEU by the Austrian court. Do portrait photographs have copyright protection, and is it weaker than protection for other works? A key question was whether portrait photographs could be protected by copyright under the Term Directive, or whether the limited creative freedom portrait photography offers means not. The CJEU reiterated the Judgment in the Infopaq case - namely that copyright can subsist - in a photograph or other "subject matter" - which is original in the sense that it is the author's own intellectual creation. In this regard, an intellectual creation is an author's own if it reflects the author's personality, and so far as portrait photographs are concerned, a photographer can make free and creative choices in several ways and at various points - such as choosing the background, pose, lighting, angle, atmosphere and techniques. In doing so, the photographer may stamp his personal touch. As a result, the freedom available to the photographer will not necessarily be minor or non-existent. Accordingly, copyright can subsist in portrait photographs. Further, the protection enjoyed by a portrait photographer is no less than that enjoyed by other works. Use for the purposes of public security The InfoSoc Directive allows copyright works to be used for the purposes of public security without the need for permission from the copyright owner. The photographs of Ms Kampusch had originally been published when a search was underway for her after her abduction - i.e. in the interests of public security. The question arose as to whether the newspapers could rely on this exception to justify the later publication, or whether there needed to be a specific, current and express appeal by the security authorities for the publication in issue. The CJEU took the view that the media could not be allowed to confer on themselves the protection of public security - only a Member State could. In certain circumstances, however, a newspaper publisher might be entitled to publish a photograph without clearance with the objective of finding someone being searched for, but if they do so it should be by agreement with or in co-ordination with national public security authorities. Use for criticism and review The Info Soc Directive allows copyright works to be used for the purposes of criticism and review in certain circumstances - when the work has already been lawfully made available, where the author is identified (unless impossible to do so) and where the use is in accordance with fair practice. The CJEU took the view that this exception could apply to non-literary works like photographs. The newspapers claimed that they had acquired the photographs from a news agency but could not identify the author. On the assumption that the photographs came into the possession of the agency lawfully and that the photographer's name would thus likely have been known to the agency, the CJEU took the view that newspapers subsequently acquiring and publishing them should have been provided with the name and in turn be able to identify the photographer. However, it was not inconceivable that the national security authorities were responsible for making the photographs available to the newspapers, pursuant to the public security exception. As that exception does not require the photographer to be identified, the photographs could have been legally made available to the newspapers without attribution. If so, all the newspapers would have to do was indicate where they got the photographs from, not who the photographer was. Jurisdiction There was also a jurisdiction issue. Some of the defendants were German and some were Austrian, but all were sued in Austria. Normally, under the relevant jurisdiction Regulations, a defendant should be sued where it is domiciled. However, co-defendants can be sued in the domicile of one if "the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings". Here, the CJEU said that it was for the referring Court to decide whether there was such a risk. Just because Austrian and German copyright law was not identical did not automatically mean that there should be parallel proceedings in Germany and Austria. Comment In this Judgment, it appears that the CJEU have made clear that the Infopaq test of the author's own intellectual creation is intended to require some element of skill, or even merit, on the part of the author - such as that which results from the author's creative choices or that which has the stamp of the author's personality. Quite how high the bar is in terms of the skill required is not clear. Would an impulsive snap taken by me qualify? There has been some commentary that the Judgment is at odds with the Court of Appeal's interpretation of Infopaq in the Meltwater case. In that case, the Court of Appeal took the view that the reference to intellectual creation of the author was simply intended to denote the fact that the work had to be original (i.e. created independently and not copied). It will be interesting to see what the Supreme Court makes of the CJEU's Judgment in the pending Meltwater appeal. The CJEU also appears to have confirmed that the public security exception is not there to allow newspapers to publish material relying on their own determination that publication is in the interests of public security. The exception appears clearly confined to publication sanctioned by proper authorities - such as the police - presumably to avoid such authorities having to clear copyright in cases where the time and effort involved in clearance could jeopardise public security.

Mc Fadden v Sony (2016)

Case Summary and Outcome The European Court of Justice (hereinafter, "ECJ") ruled that a copyright-holder might be capable of obtaining an injunction against an intermediary service provider to prevent an infringement by the transmission of information from a third party but that it was not entitled to claim compensation from the service provider as a result of the infringement. Sony Music claimed compensation for breach of copyright against Mr. McFadden, a German retailer, who had offered a free and unsecure WiFi service to the general public which was used to download a musical work owned by the music company. The Court had to balance the fundamental rights of a copyright-holder to intellectual property protection, the right of a service provider to conduct the business of supplying access to a communication network and the right to freedom of information of the recipients of that service. It reasoned that the retailer was a "mere conduit" under the relevant E-Commerce Directive and exempt from liability for infringement of copyright having satisfied the necessary conditions but, balancing the competing rights, it said that Sony might be capable of obtaining an injunction to prevent the relevant copyright infringement from taking place and to force Mr. McFadden to password protect his service so that information about users committing infringements could be obtained. Notably, the Court also confirmed that there is no general obligation on network access providers to monitor information that is transmitted over the network, in other words, in this case it was not McFadden's responsibility to check to make sure whether users were using the service for illicit means. Facts Mr. McFadden, a German retailer offered a free and unsecure WiFi service to the general public. One of the reasons for offering this service was to try to attract potential customers to his lighting and sound system store. Back in 2010, a musical work owned by Sony Music was made available over his network for download in breach of Sony's copyright. On October 29, 2010, the producer sent a cease and desist letter to Mr. McFadden asking him to stop the copyright infringement in question. Mr. McFadden filed a lawsuit seeking an order to obtain a negative declaration (negative Feststellungsklage), which would confirm that he was not liable. In reply, Sony Music counterclaimed for i) payment of damages on the ground of Mr. McFadden's direct liability for the infringement of its rights over the phonogram, 2) an injunction against the infringement of its rights on pain of a penalty, and 3) reimbursement of the costs of giving formal notice and court costs. On January 16, 2014, the German Court upheld the claims of Sony Music. Mr. McFadden appealed the decision claiming that, according to Article 12(1) of the Directive 2000/31 (hereinafter, "e-Commerce Directive"), he qualified as a provider of an "information society service", that is a "mere conduit" and was not liable for the information transmitted by a third party. In the appeal, Sony Music argued that the court should uphold the judgment at first instance, alternatively should not hold Mr Mc Fadden directly liable but order him to pay damages on the basis of the indirect liability of wireless local area network operators for not having taken measures to protect his wireless local area network and for having thereby allowed third parties to infringe Sony Music's rights. In order to solve such conflicting positions, the German Court referred preliminary questions to the ECJ to advise on whether the exemption of liability for access providers, enshrined in Article 12(1) of the e-Commerce Directive and transposed into German law in Article 8(1) of the Law on electronic media, applied in Mr. McFadden's case. Decision Overview First of all, the ECJ specified that making available to the general public a free-of-charge Wi-Fi connection in order to attract potential customers is an "information society service" as provided for by Article 2(a) of the e-Commerce Directive. Secondly, the Court differentiated the liability exemptions that apply to different types of intermediary service providers pointing out that Articles 12(1), 13(1) and 14(1) of the e-Commerce Directive establish different conditions for exemption depending on the activity of the provider. The ECJ identified Mr. McFadden's activity as a "mere conduit" and set out the three cumulative conditions which must be satisfied for such a provider to escape liability for information that is transmitted by a third party: (i) the provider of the service must not have initiated the illicit transmission; (ii) it must not have selected the recipient of the illicit transmission; and (iii) it must neither have selected nor modified the information contained in the illicit transmission. On this basis, Mr. McFadden was exempt from liability and, as a result, Sony Music was not entitled to claim compensation and reimbursement of legal expenses. However, regarding the injunction, the Court said that the e-Commerce Directive does not preclude the right-holder from asking the competent national authority to order the service provider to prevent the relevant infringement from taking place. Therefore the issue was to find a deterrent measure which ensured the balance among the fundamental rights at stake. The Court said that the measure must be strictly targeted, in the sense that it must bring an end to a third party's infringement of copyright but without affecting the possibility of internet users lawfully accessing information using the provider's services. Failing that, the provider's interference in the freedom of information of those users would be unjustified in the light of the objective pursued. In this regard, an injunction which obliges the provider in question to introduce a password for its customer can ensure a balance between, on one hand, the intellectual property rights enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union and, on the other hand, the freedom to conduct a business of access providers and the freedom of information of the network users, as respectively provided for by Articles 16 and 11 of the same Charter.

• Rocknroll v News Group Newspapers Ltd,

C married the actress Kate Winslet in December 2012. D became aware of and wanted to publish photographs of C taken at a fancy dress party in 2010 which showed C partially-naked and were described by him as "innocent but embarrassing". The photographs were taken by a friend and had been available on the friend's Facebook page initially only to his 1,500 friends, until, he said, a recent change in privacy settings which made them available to the public. By the time of the hearing the photographs had been removed. C sought an interim injunction to prevent publication. Issue Whether C should be granted an injunction: (1) Did C have a reasonable expectation of privacy in the photographs and their content? (2) Was C likely to succeed, balancing C and his family's Article 8 rights with the countervailing Article 10 considerations? Held Granting the injunction: (1) C did have a reasonable expectation of privacy in the photographs and their content: (a) The photographs were taken at a private party on private premises and show him behaving in a way he would be unlikely to behave in public; (b) C had consented to the photographs being taken and shared with mutual friends, but this did not equate to consent to them being published in a national newspaper - D was most unlikely to establish such consent at trial; (c) C had not become a public figure in his own right, either through publicity relating to his first marriage, or his job at Virgin Galactic. Only on one occasion could he be said to have courted publicity, and he had sought no publicity about his relationship with Ms Winslet. In any event, the argument that having courted publicity on the occasion of his first marriage acts as type of waiver of privacy about this aspect of his life is an example of the discredited "zone argument". (d) The photographs had not come into the public domain through their posting on Facebook. It was not the case that there was nothing by way of privacy left to be protected by an injunction. The photographs had not been easily accessible, an internet search of C's name would not have found them. A tip-off was the most likely source. (2) As to the balancing exercise, C was likely to succeed: (a) The photographs and their contents would not contribute to a debate about matters of public interest. Nothing illegal or immoral was depicted and there was no hypocrisy argument to be made (Ferdinand v NGN [2011] EWHC 2454 (QB)). That a newspaper wishes to criticise the behaviour of someone in the public eye does not necessarily equate to contributing to a debate of public interest (von Hannover v Germany (2005) 40 EHRR 1). Although a margin of appreciation is to be given to journalists, the court can and should seek to assess, on the facts of the case before it, whether publication is sought in order to genuinely inform a debate of public interest, or rather to titillate those readers who are interested in the behaviour of persons in the public eye. (b) The timing of the threatened publication - very shortly after it came to the attention of the media that C had married Ms Winslet - also suggested that D intended to provide details of the private peccadillos of C to its readership rather than to contribute to a debate of public interest. (c) There was a real risk that publication would result in teasing or ridicule of Ms Winslet's children at school, such that it could damage the caring family relationship which C was seeking to establish with them. This is an important factor in the balancing exercise (ETK v NGN [2011] EWCA Civ 439). (d) C was not a person with a substantial public profile, either through his work or his marriages. Comment This case demonstrates the application well-established principles of both domestic and European case law but will be of interest to those in the media where it relates to privacy and public domain arguments regarding images available to substantial numbers of people on social media, a day to day consideration for many picture editors. The judge took a practical view of the public domain argument. Private information cases, where there may still be Article 8 rights to protect despite the material having been made available to some or all of the public, are to be distinguished from trade-secret confidentiality cases where once the information has been made publicly accessible it is no longer confidential. Just because material can be accessed via a social networking site does not necessarily mean it is public domain and can be published. The Courts have previously concluded that the intrusional rather than confidential aspects of privacy actions may support a reasonable expectation of privacy, even when the genie may be considered to be outside the bottle. As to who is to be considered a public figure, it is interesting to contrast this case with McClaren v NGN EWHC 2466 (QB). Here C, although currently of interest to the public (and therefore the newspapers), does not have and has never had a public profile in his own right.

• Dimensione Direct Sales Srl and Michele Labianca v Knoll International Spa

Does the distribution right under Article 4(1) of the InfoSoc Directive include the right to offer the original or copies of the work to the public for sale? In other words: does the distribution right encompass also the mere advertising for sale of copyright-protected works or their copies? This, together with other two questions, is what the Bundesgerichtshof (German Federal Court of Justice) asked [here] our beloved Court of Justice of the European Union (CJEU) to clarify in Dimensione Direct Sales srl and Michele Labianca v Knoll International SpA, C-516/13. This morning the CJEU issued its 36-paragraph decision, ruling that the right of distribution encompasses the right to prevent "an offer for sale or a targeted advertisement of the original or a copy of that work, even if it is not established that that advertisement gave rise to the purchase of the protected work by an EU buyer, in so far as that advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it." Background Knoll International SpA is an Italian company that trades in furniture. Also Dimensione Direct Sales (Mr Labianca is its director) is an Italian company that trades in furniture, which it offers for sale on its website www.dimensione-bauhaus.com. Between 2005 and 2006 Dimensione Labianca offered for sale in Germany items that would infringe copyright in furniture to which Knoll International owns the copyright. Litigation ensued before German courts, and Knoll succeeded at both first instance and appeal. The case eventually reached the Bundesgerichtshof, that decided to stay the proceedings and seek guidance from the CJEU as to the following: 1) Does the distribution right under Article 4(1) of Directive 2001/29/EC include the right to offer the original or copies of the work to the public for sale? If the first question is to be answered in the affirmative: 2) Does the right to offer the original or copies of the work to the public for sale include not only contractual offers, but also advertising measures? 3) Is the distribution right infringed even if no purchase of the original or copies of the work takes place on the basis of the offer? The AG Opinion In his Opinion [not yet available in English, but summarised here] on 4 December 2014, Advocate General (AG) Cruz Villalón noted that the factual background here differed from the one at stake in Cassina [here, in which the CJEU held that "[t]he concept of distribution to the public, otherwise than through sale, ... applies only where there is a transfer of the ownership of that object."], Titus Donner [here] and Blomqvist [here], in that in this case Dimensione Direct Sales made unequivocally clear its intention to market the alleged infringing furniture, but no sale or actual delivery of infringing goods actually occurred. The AG advised the Court to rule that Article 4(1) of the InfoSoc Directive must be interpreted in the sense that the right to distribution includes the right of the copyright owner to prevent anyone from offering for sale to the public said original or the copies without his/her consent, provided that such offer displays a clear intention to conclude a contract that would involve the transfer of ownership over the original or the copies of a work. OK, but is this also an act of distribution? Yes, said the CJEU Today's ruling The Court began by observing that the notion of 'distribution' constitutes an independent concept of EU law. This means that its "interpretation ... cannot be contingent on the legislation applicable to transactions in which a distribution takes place". By adopting the InfoSoc Directive, among other things the EU intended to implement into the EU legal order the WIPO Copyright Treaty (WCT). As such Article 4(1) of the InfoSoc Directive must be interpreted with regard to Article 6(1) WCT. This means that the notion of 'distribution to the public ... by sale' in Article 4(1) of the Directive has the same meaning as the expression 'making available to the public ... through sale' in Article 6(1) WCT. In Donner and Blomqvist the Court held that "distribution to the public is characterised by a series of acts going, at the very least, from the conclusion of a contract of sale to the performance thereof by delivery to a member of the public." Use of the phrase "at the very least" means that: "[I]t is not excluded that the acts or steps preceding the conclusion of a contract of sale may also fall within the concept of distribution and be reserved, exclusively, to the holders of copyright. Although the Court has already held that distribution to the public must be considered proven where a contract of sale and dispatch has been concluded ..., the same is true of an offer of a contract of sale which binds its author. In fact, such an offer constitutes, by its very nature, an act prior to a sale being made. As regards an invitation to submit an offer, or a non-binding advertisement for a protected object, those also fall under the series of acts taken with the objective of making a sale of that object. Indeed ... a trader who directs his advertising at members of the public residing in a given Member State and creates or makes available to them a specific delivery system and payment method, thereby enabling those members of the public to receive delivery of copies of works protected in that Member State, makes, in the Member State where the delivery takes place, a 'distribution to the public' under Article 4(1) of Directive 2001/29." The Laccio tables, among the pieces of furniture subject to the German litigation As a result, "There may be an infringement of the exclusive distribution right, under Article 4(1) of [the InfoSoc Directive], where a trader, who does not hold the copyright, sells protected works or copies thereof and addresses an advertisement, through its website, by direct mail or in the press, to consumers located in the territory of the Member State in which those works are protected in order to invite them to purchase it ... [I]t is irrelevant, for a finding of an infringement of the distribution right, that such advertising is not followed by the transfer of ownership of the protected work or a copy thereof to the purchaser." Conclusion This new CJEU decision appears to extend greatly the scope of the distribution right. The Court justified this outcome by recalling, among other things, that the InfoSoc Directive intends to provide a high level of protection to authors and [perhaps even more importantly] copyright owners. One may wonder whether this ruling represents a departure from earlier CJEU case law, notably Cassina. The Court itself addressed this point, and held that: "although it is true that .... the concept of distribution to the public of the original of a work or a copy thereof .... entails a transfer of the ownership of that object, the fact remains that an infringement of the distribution right can be observed where consumers located in the territory of the Member State in which that work is protected are invited, by targeted advertising, to acquire ownership of the original or a copy of that work." A more detailed analysis of this ruling will follow soon. For the time being, a very interesting part of the decision is how the Court stressed that the interpretation of copyright exclusive rights cannot be contingent on the legislation applicable to transactions in which a distribution takes place. Thus, one may now wonder, for instance, about the compatibility with EU law of the right of distribution under UK law. Section 18 of the Copyright, Designs and Patents Act 1988 defines it as the right to 'issue to the public of copies of the work', this being the 'the act of putting into circulation' by or with the consent of the copyright owner copies of works not previously put into circulation. One of the leading treatises on UK copyright, Copinger and Skone James on Copyright, states [7.91] that: "It is clear that the act of offering or exposing copies for sale is not capable of amounting to putting copies into circulation." But following today's decision in Labianca, is it still so? How is it possible to reconcile the meaning of 'issuing' copies with the idea that now to have an act of distribution issuing copies is not at all required?

• Mosley v United Kingdom,

Facts In March 2008 the News of the World published an article about the Applicant engaging in sado-masochistic activities with five dominatrices in a private flat. Several pages of the newspaper were devoted to the story which included still photographs taken from video footage secretly recorded by one of the participants in the activities. An edited extract of the video and further still pictures were published on the newspaper's website and elsewhere on the internet. The Applicant was refused an interim injunction because the material was already in the public domain but in the subsequent proceedings for invasion of privacy and breach of confidence he was awared £60,000 in damages. The court found that there were no Nazi connotations to the images and there was therefore no public interest in the disclosure of the Applicant's sexual activities. It further ruled that exemplary damages were not available for an invasion of privacy. The Applicant applied to the European Court, alleging that the UK had violated its positive obligations under Article 8 of the Convention to ensure respect for his private life, in particular by failing to require those intending to disclose private information to first notify the subject of that information. Issue (1) Whether the Applicant could be regarded as a victim of a violation of the Convention given the award of damages and/or the availability of alternative remedies; (2) Whether the United Kingdom had a positive obligation under Article 8 of the Convention to introduce a mandatory notification requirement on the newspaper which would have afforded the Applicant the opportunity to apply for an injunction prior to publication. Held Declaring the application admissible but finding no violation of Article 8: (1) The Applicant could be regarded as a victim given that no amount of damages awarded after publication could meet his complaint that no legal requirement existed in the UK obliging the media to give advance warning to a person of a publication which interfered with their private life. The Applicant's failure to appeal the ruling on exemplary damages, to claim an account of profits or to bring proceedings under the Data Protection Act 1998 did not amount to a failure to exhaust domestic remedies. (2) It was implicitly accepted in the Court's previous case-law that damages for an invasion of privacy could be an adequate remedy. Notwithstanding the merits of the Applicant's case, a pre-notification requirement would inevitably affect political reporting and serious journalism which called for the most careful scrutiny. The variety of remedies available in the United Kingdom, which included the possibility of injunctive relief where an individual was aware of an intended publication, was compatible with international standards including Parliamentary Assembly Resolutions on privacy and the media. The lack of clarity in how a pre-notification requirement would work in practice, given the need for there to be a public interest exception, would cause a chilling effect which might put such a requirement in breach of Article 10, especially if it were to be enforced by punitive or criminal sanctions. Given the wide margin of appreciation afforded to States in balancing the requirements of private life and freedom of expression, therefore, the Court found no violation of Article 8. Comment The analysis of the legal system pertaining to privacy in the United Kingdom by the European Court in this case, some ten years after the law began to develop under the Human Rights Act 1998, is of a system that is working effectively to balance the respective rights and interests under Articles 8 and 10. Where there has been a breach of an individual's private life, remedies are available which may include, but do not have to include, the availability of injunctive relief, an award of damages and non-legal remedies offered by the media regulators. A mandatory requirement on the media to notify the subject of an intended article prior to publication (even though this is a common journalistic practice) would, the Court found, be a step too far. The Court was no doubt influenced by the fact that the issue of privacy injunctions is kept under periodic review in the United Kingdom and the absence of any pre-notification requirement in any other Member State of the Council of Europe, as well as the practical problems of introducing such a requirement. The over-riding message of this judgment, therefore, is to keep calm and carry on.

• GS Media BV v Sanoma Media Netherlands BV and Others

GS Media BV v Sanoma Media Netherlands BV and Others (C-160/15) is a case decided by the European Court of Justice.[1] The case regards a request for a Preliminary ruling by the Supreme Court of the Netherlands on whether hyperlinking to a public third-party website that contains work(s) published without the consent of the rightholder constitutes a "communication to the public" within the meaning of article 3 of the Copyright Directive.[2][3] The case was decided on 8 September 2016, following the opinion of the Advocate General of 7 April 2016.[4] The Court decided that linking to freely available material placed on the internet without consent of the rights holder(s) constitutes a communication to the public (and thus possibly copyright infringement) if the person placing those links knew this consent was not given. If the link is placed "for profit" to infringing content, the linker is presumed to know about the lack of consent and thus presumed to make a communication to the public[5]. Contents 1 Facts 2 First Instance and Appeal decisions 3 At the Supreme Court of the Netherlands 4 Questions referred the European Court of Justice 5 References Facts Geenstijl.nl (owned by GS Media) is a Dutch blog that publishes news, revelations and journalism.[6] It reports having about 230,000 visitors a day and is one of the better read Dutch blogs.[6] In October 2011 Geenstijl received a message from an anonymous source about photographs of Britt Dekker on the Australian website FileFactory,[7] which were to be published in the December 2011 Dutch edition of Playboy Magazine, published by Sanoma. Before Geenstijl published the link to the photographs, Sanoma requested Geenstijl not to do so.[8] Geenstijl however published an post about the photographs including a hyperlink to the FileFactory from where the photographs could be found.[7] The link on filefactory went to a webpage, from where a zip file containing the photographs could be downloaded. Sanoma requested GS Media to delete the hyperlink in the article and summoned Filefactory to delete the file of its servers.[9] Filefactory complied with this request the same day. After Geenstijl received another summon, the blog published an article on it in which it included a hyperlink to Imageshack where some of the photographs still were hosted.[10] The third and last time a hyperlink to the photographs were posted by Geenstijl was in November 2011. First Instance and Appeal decisions The Amsterdam District Court concluded that the hyperlinks published by Geenstijl constituted a "communication to the public" in the sense of article 3 of the Infosoc Directive.[11] as the link allowed a "new public" to reach the photographs. The Court held that it was of particular interest that Geenstijl benefitted from the influx of visitors, and the court took in to account the repeated requests to delete the hyperlinks by Sanoma. The District Court finally held that there was a breach of copyright law and awarded damages. The Court of Appeal partially overturned this decision and held that as the internet is an openly accessible network, the person that publishes the work on the internet is (in this case: the person placing the photographs on FileFactory) the one that communicates it to the public.[12] The Court compared a hyperlink to a footnote in a book. Sanoma did not agree and argued that these specific files were not accessible to the public unless someone was handed the key to the "digital safe". Geenstijl argued anyone with the link could download the files and the location of the files could be indexed by search engines. The court agreed with the position of Geenstijl on this argument, but held that while no copyright infringement had taken place, Geenstijl had committed a tort by placing the links. At the Supreme Court of the Netherlands At the Supreme Court of the Netherlands the main question is whether there is a "communication to the public" in the case of a hyperlink to a website where the work is published without consent of the rightholder, taking into account that the work had never been published before.[2] The Supreme court relies on the previous decisions on hyperlinking in the ECJ cases Svensson and BestWater. The Svensson case related to a case where the work was published with consent of the rightholder, before the hyperlinking happened.[13] The criterium set out by the European Court of Justice constituted that it was of importance that the rightholder of the work had foreseen this extent of the audience at the time of the time of giving consent to communicating the work to that audience.[14] In the case of Svensson that could be any internet user as it had no restrictive measures in place for its work to be found on the internet. In the BestWater case a Youtube clip (placed on Youtube by the rights holder) was embedded without consent.[15] There was no communication to a new public, because the access to the original video was not restricted. The case discussed whether embedding could still amount to communication to a new public, because the video was shown on another website.[16] The European Court of Justice held that embedding videos that are freely available does not constitute an infringement under article 3. According to the Supreme Court it is necessary, in line with jurisprudence of the European Court of Justice, that for a "communication to the public" the following criteria are satisfied: A sizeable, not originally by the rightholder targeted, audience can be reached (a communication) This is a new audience, that has not been reached by a previous communication to the public (to the public) The Supreme Court concluded that there is not enough material in the Svensson and BestWater cases to answer the current question of GS Media v. Playboy. It has to consider whether with the hyperlinking a new audience has been reached. The courts held that hyperlinking to a source that is already open for anyone would not constitute a communication to a new audience, however in the Svensson case this had been done by the rights holder. It notes from a practical view that there is much content available on the internet without consent of the rightholder, therefore it is hard to find out whether a hyperlink is aimed at a work with consent of the rightholder or not. For the reasons mentioned above the Supreme Court decided to ask prejudicial questions to the European Court of Justice. Questions referred the European Court of Justice The questions that were asked by the Dutch Supreme Court are:[1] 1(a) If anyone other than the copyright holder refers by means of a hyperlink on a website controlled by him to a website which is managed by a third party and is accessible to the general internet public, on which the work has been made available without the consent of the rightholder, does that constitute a 'communication to the public' within the meaning of Article 3(1) of Directive 2001/29? 1(b) Does it make any difference if the work was also not previously communicated, with the rightholder's consent, to the public in some other way? 1(c) Is it important whether the 'hyperlinker' is or ought to be aware of the lack of consent by the rightholder for the placement of the work on the third party's website mentioned in 1(a) above and, as the case may be, of the fact that the work has also not previously been communicated, with the rightholder's consent, to the public in some other way? 2(a) If the answer to question 1(a) is in the negative: in that case, is there, or could there be deemed to be, a communication to the public if the website to which the hyperlink refers, and thus the work, is indeed findable for the general internet public, but not easily so, with the result that the publication of the hyperlink greatly facilitates the finding of the work? 2(b) In answering question 2(a), is it important whether the 'hyperlinker' is or ought to be aware of the fact that the website to which the hyperlink refers is not easily findable by the general internet public? 3. Are there other circumstances which should be taken into account when answering the question whether there is deemed to be a communication to the public if, by means of a hyperlink, access is provided to a work which has not previously been communicated to the public with the consent of the rightholder?

• Infopaq,

Infopaq International A/S v Danske Dagblades Forening (2009) [1] was a decision of the European Court of Justice concerning the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright, and the conditions for exemption of temporary acts of reproduction. It established that (1) an act occurring during a data capture process is within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29, if the elements reproduced are the expression of the intellectual creation of their author, and (2) the act of printing out an extract of words during a data capture process does not fulfill the condition of being transient in nature as required by Article 5(1) of Directive 2001/29. Facts Infopaq,[2] a media monitoring and analysis business, was engaged in sending customers selected summarized articles from Danish daily newspapers and other periodicals by email. The articles were selected on the basis of certain subject criteria agreed with by customers and made available by means of a data capture process. Danske Dagblades Forening (DDF),[3] a professional association of Danish daily newspaper publishers, assists its members with copyright issues. DDF became aware that Infopaq was scanning newspaper articles for commercial purposes without authorization and complained to Infopaq about this procedure. The data capture process comprises five phases. First, the publications are registered manually in an electronic registration database. Secondly, the publications are scanned, creating a TIFF (Tagged Image File Format) file created for each page. When scanning is completed, the TIFF file is transferred to an OCR (Optical Character Recognition) server. Thirdly, the OCR server translates the TIFF file into data that can be processed digitally. During that process, the image of each letter is translated into a character code which tells the computer what type of letter it is. The OCR process is completed by deleting the TIFF file. Fourthly, the text file is processed to find a search word defined beforehand. In order to make it easier to find the search word when reading the article, the five words which come before and after the search word are captured. At the end of the process the text file is deleted. Fifthly, at the end of the data capture process, a cover sheet is printed out for of all the pages where the relevant search word was found. Procedural history Infopaq disputed DDF's claim that the procedure required consent from the rightholders and brought an action against DDF before the Østre Landsret[4] (Eastern Regional Court), claiming that DDF should be ordered to acknowledge that Infopaq is entitled in Denmark to apply the above-mentioned procedure without the consent of DDF or of its members. After the Østre Landsret dismissed that action, Infopaq brought an appeal before the Højesteret, Denmark's highest court. The parties disagreed whether there was reproduction as contemplated by Article 2 of Directive 2001/29, as well as whether, if there is reproduction, the acts in question were covered by the exemption from the right of reproduction provided for in Article 5(1) of that directive. The Højesteret court then referred 13 questions to the European Court of Justice. The first was if the storing and subsequent printing out of a text extract from an article in a daily newspaper, consisting of a search word and the five preceding and five subsequent words, can be regarded as an act of reproduction protected under Article 2 of Directive 2001/29. Questions 2-12 related to whether acts of reproduction occurring during a data capture process satisfy the conditions laid down in Article 5(1) of Directive 2001/29 (the act is temporary; transient or incidental; is an integral and essential part of a technological process; and the sole purpose is to enable transmission in a network between third parties by an intermediary, or a lawful use of a work or protected subject-matter; and the act has no independent economic significance), thereby not requiring consent of the relevant right holders. The thirteenth question related to whether this data capture process can be regarded as constituting a special case which does not conflict with a normal exploitation of the newspaper articles and not unreasonably prejudicing the legitimate interests of the right holder as specified in Article 5(5) of Directive 2001/29. Judgment The ECJ held that printing is not transient in nature and consent was needed for Infopaq to use the publication. In response to the first question, an 11-word extract of a protected work is a reproduction in part within the meaning of Article 2 of Directive 2001/29/EC, if the words reproduced are the expression of the intellectual creation of the author. The ECJ stated that it was for the national courts of EU countries to decide when such a reproduction is the author's expression of intellectual creation. In response to questions 2-12, the act of printing out an 11-word extract during a data capture process does not fulfill the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant right holders. In light of the answer to questions 2-12, it was not necessary for the ECJ to address question 13. Significance This case highlights the problems of copyright infringement and new technology in new business models, especially those involving content aggregation.[5] This decision is considered to have had a high impact on fundamental principles of copyright law, in concluding that the European standard of originality (the author's own intellectual creation) applies not only in the limited contexts to which it has been applied in legislation such as software, photographs and databases; but to all Berne Convention "works" under the European acquis.[6]

Infopaq International A/S v Danske Dagblades Forening

Infopaq International A/S v Danske Dagblades Forening (2009) [1] was a decision of the European Court of Justice concerning the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright, and the conditions for exemption of temporary acts of reproduction. It established that (1) an act occurring during a data capture process is within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29, if the elements reproduced are the expression of the intellectual creation of their author, and (2) the act of printing out an extract of words during a data capture process does not fulfill the condition of being transient in nature as required by Article 5(1) of Directive 2001/29. Infopaq,[2] a media monitoring and analysis business, was engaged in sending customers selected summarized articles from Danish daily newspapers and other periodicals by email. The articles were selected on the basis of certain subject criteria agreed with by customers and made available by means of a data capture process. Danske Dagblades Forening (DDF),[3] a professional association of Danish daily newspaper publishers, assists its members with copyright issues. DDF became aware that Infopaq was scanning newspaper articles for commercial purposes without authorization and complained to Infopaq about this procedure. The data capture process comprises five phases. First, the publications are registered manually in an electronic registration database. Secondly, the publications are scanned, creating a TIFF (Tagged Image File Format) file created for each page. When scanning is completed, the TIFF file is transferred to an OCR (Optical Character Recognition) server. Thirdly, the OCR server translates the TIFF file into data that can be processed digitally. During that process, the image of each letter is translated into a character code which tells the computer what type of letter it is. The OCR process is completed by deleting the TIFF file. Fourthly, the text file is processed to find a search word defined beforehand. In order to make it easier to find the search word when reading the article, the five words which come before and after the search word are captured. At the end of the process the text file is deleted. Fifthly, at the end of the data capture process, a cover sheet is printed out for of all the pages where the relevant search word was found. The ECJ held that printing is not transient in nature and consent was needed for Infopaq to use the publication. In response to the first question, an 11-word extract of a protected work is a reproduction in part within the meaning of Article 2 of Directive 2001/29/EC, if the words reproduced are the expression of the intellectual creation of the author. The ECJ stated that it was for the national courts of EU countries to decide when such a reproduction is the author's expression of intellectual creation. In response to questions 2-12, the act of printing out an 11-word extract during a data capture process does not fulfill the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant right holders. In light of the answer to questions 2-12, it was not necessary for the ECJ to address question 13. This case highlights the problems of copyright infringement and new technology in new business models, especially those involving content aggregation.[5] This decision is considered to have had a high impact on fundamental principles of copyright law, in concluding that the European standard of originality (the author's own intellectual creation) applies not only in the limited contexts to which it has been applied in legislation such as software, photographs and databases; but to all Berne Convention "works" under the European acquis.[6]

• Peter Pinckney v KDG Mediatech AG,

Let me answer the question immediately: that is unlikely. It is however an interesting prospect and, who knows, might be a start. CRUZ VILLALÓN AG's Opinion in Pez Hejduk, case C-441/13 (at the time of writing available in plenty of languages but not in English), provides an excellent tour d'horizon of the application of the special jurisdictional rule of Article 5(3) [following the recast, Article 7(3)] Brussels I, to cases involving infringements of an intellectual property right. For trademarks, the most recent case is Coty, Case C-360/12, reviewed by Alberto Bellan here. Pez Hejuk concerns copyright: an intellectual property right for which no formality (such as registration) is required for it validly to exist. Pinckney, Wintersteiger, Football Dataco: the application of Article 5(3) [and the delineation with leges specialis in the IP field] is not exactly crystal clear and the need for distinguishing very high. This resulted in this particular case in the Handelsgericht Wien requesting ECJ back-up on the application in the case of Ms Hejduk, a professional photographer, suing EnergieAgentur for unauthorised use on its .de website of photographs which had only been authorised for one-off use during a conference. In view of Pinckney et al, the AG splendidly and concisely distinguishes the various strands of case-law and the raison d'etre for their consecutive jurisdictional criteria - please refer to the opinion itself for a summary by me would not do it justice. Encouraged in particular by Portugal and the EC, the AG then further distinguishes current case. As noted by Eleonora Rosati here, the AG emphasises that not only would it be difficult for the defendant having potentially to face actions in multiple Member States, but also the plaintiff would have limited benefits from seeking limited damages in more jurisdictions, and would find it difficult to prove such damage given the accessibility of the site. Which is why the AG suggests that further distinguishing is needed for what he calls cases involving 'delocalised damages' involving IP, leading to the suggestion that in such case, only the judges of the Member State in which the causal event occurred should have jurisdiction on the basis of Article 5(3) (general jurisdiction for the domicile of the defendant not withstanding, obviously: per Article 2 JR). In other words: only the locus delicti commissi would be upheld. Not the locus damni. Now, no reference is made to the case in the AG's Opinion, however, surely this amounts to no less than a reversal of Bier /Mines de Potasse d'Alsace, case C-21/76. the ECJ's extension in Bier, away from the literal meaning of Article 5(3) has, as I often have emphasised, triggered a long series of cases in which the ECJ has had to massage the ripple effect of the locus damni rule. If it were (which of course is not at all certain) to take up the AG's suggestion here, and drop locus damni, might it not eventually have to concede that in many if not all cases, it is difficult for the defendant having potentially to face actions in multiple Member States, and for the plaintiff to have to prove and seek limited damages in more jurisdictions. On that basis (that however narrowly distinguished, siding with the AG would mean acknowledging the weakness of the locus damni rule), I find it very likely that the ECJ will not run with it. Whence it might either not distinguish Hejduk from Pinckney, or assimilate it with eDate Advertising, or further distinguish and add an alternative, Hejduk rule, in the event of 'delocalised damages'.

Article 4 InfoSoc Directive

Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise. The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.

What does Berne say?

Moral rights independent from economic rights Last at least as long as economic rights But what about US? A breach? What rights? Attribution ("claim authorship") Integrity ("object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation") Does not really say whether they can be waived or assigned

Action triggered by existence of an obligation

No serious limits as to the type of information that can be protected Action developed till the point of covering privacy, lacking specific UK tort From breach of confidence to the (judicial) creation of a tort of misuse of private information Functions Allows ideas to be developed and shared with selected recipients without fear of misappropriation Protects individual autonomy, personality and privacy Another way to give effect to Article 8 EHCR (cf passing off and (lack of) image rights in UK)

• Creation Records [1997

Oasis A pop group had posed at a specially devised scene, consisting of a white Rolls Royce in the swimming pool of a hotel and incorporating various other props. The object of the exercise was to take a photograph to be used as a record cover. The defendants commissioned a freelance photographer to take photographs of the scene. Held: It was well arguable that the nature of the operation together with the imposition of security measures made the occasion one of confidentiality, at any rate as regards photography. However, the arrangement of a group of people on album cover was not sufficient to warrant protection by copyright.

• UsedSoft GmbH v Oracle International Corp

On 3 July 2012, the ECJ handed down its landmark decision in UsedSoft GmbH v Oracle International Corp (C-128/11), ruling that the owner of copyright in software cannot prevent a perpetual licensee who has downloaded the software from the internet from selling his 'used' licence. This decision has significant implications for the software and other digital industries. Background Oracle develops and markets computer software, most of which is downloaded by its customers from the internet. Each customer's right to use the software is governed by a licence agreement which provides that, in return for payment of a one-off fee, the customer receives a non-exclusive, non-transferable right to use the software for an unlimited period. Pursuant to a separate maintenance agreement, customers can also download updates and patches (programs for correcting faults) from Oracle's website. UsedSoft deals in second-hand software. It began to offer for sale 'used' Oracle licences, stating that these were 'current' in the sense that the maintenance agreement between the original licence holder and Oracle was still in force. Oracle obtained an injunction from the Munich Regional Court restraining UsedSoft from carrying out these activities. UsedSoft appealed to the German Federal Court which referred a number of questions on the interpretation of Directive 2009/24/EC on the legal protection of computer programs (codifying Directive 91/250/EEC) (the "Software Directive") to the ECJ. The relevant provisions of the Software Directive are summarised below: Article 4(1): the computer program rights holder has the exclusive right to do or authorise: (a) the reproduction of the program; (b) the translation or other alteration of the program; and (c) any form of distribution to the public of the program. Article 4(2): the first sale of a copy of a program by the rights holder or with their consent in the EU exhausts the distribution right of that copy within the EU (such that the rights holder loses its right to rely on its copyrights to oppose the resale of that copy). Article 5(1): unless the contract specifies otherwise, the acts of reproduction and translation (under Article 4(1)(a) and (b)) do not require authorisation by the rights holder where they are necessary for the use of the computer program by a lawful acquirer. The German Federal Court asked the ECJ whether: the right to distribute a copy of a computer program was exhausted under Article 4(2) where the acquirer had made a copy with the rights holder's consent by downloading the program from the internet; and an acquirer of the user licence was a "lawful acquirer" within the meaning of Article 5(1) such that it could rely on the exhaustion rule under Article 4(2) to run the program on its own systems. ECJ's decision on exhaustion: what is a 'sale of a copy'? The ECJ ruled that in order for a copyright holder's distribution right to be exhausted under Article 4(2) in respect of a copy of software (such that the copyright holder can no longer oppose the resale of that copy), the transaction between it and its customer must amount to a 'sale of a copy' of the program. Where a customer downloads a copy of Oracle's software and enters into a licence agreement under which it receives the right to use that copy for an unlimited period in return for payment of a fee, such a transaction amounts to a 'sale' for the purposes of Article 4(2) and involves a transfer of the right of ownership in that copy. This broad interpretation of Article 4(2) is necessary as otherwise the effectiveness of the rule of exhaustion would be undermined since suppliers would merely have to call the contract a "licence" rather than a "sale" in order to circumvent it. The ECJ said that the term 'sale of a copy' in Article 4(2) encompasses all situations in which there is a grant of a right to use a copy of a computer program for an unlimited period in return for payment of a fee, and any such 'sale' would trigger the exhaustion provisions of the Software Directive. Therefore, even if the licence agreement prohibits further transfer, the copyright holder can no longer oppose the resale of that copy. It is immaterial whether the computer program is made available in some physical form (e.g. a CD or DVD) or by way of internet download; in either case the transaction is a 'sale' of the relevant copy of the software. Moreover, the exhaustion of the distribution right extends to any corrections or updates made by the copyright holder under a maintenance agreement. Even if the maintenance agreement is for a limited period, the functionalities corrected, altered or added on the basis of such an agreement form an integral part of the copy originally sold and which can be used by the customer for an unlimited period. Restrictions on the reseller In order for a resale not to infringe, the original licensee must render his own copy unusable at the time of its resale. The ECJ said that it would be permissible for the copyright holder to make use of technical protective measures (e.g. product keys) to ensure that this is the case. This preserves the right of reproduction of the program which is not exhausted by the first sale. If the licence acquired by the first acquirer is in a "block" and relates to a greater number of users than he needs, that acquirer is not authorised by the effect of the exhaustion of the distribution right to divide the licence and resell only part of it. Is a second acquirer a 'lawful acquirer'? Since the copyright holder cannot object to the resale of a copy of software for which that rights holder's distribution right was exhausted, a second acquirer of that copy (and any subsequent acquirers) were "lawful acquirers" for the purposes of Article 5(1) who could download that copy from the copyright holder's website and copy it as required to use it on their own systems. How should the software industry respond? This is a landmark decision which effectively creates a secondary market for licensed software, regardless of the terms of the licence agreement. However, the judgment contains a number of important qualifications which should be borne in mind by software providers and resellers alike: Limited term licences - The ECJ placed a lot of emphasis on the fact that the Oracle licences were not limited in time, and for this reason concluded that a 'sale' of the copy of the program had occurred. This leaves it open for software providers to argue that they have not exhausted their distribution rights in software which is licensed for a limited time via a rental model. However, any such time limits are likely to have to be real and enforced, not merely nominal or formal, as courts (at both national and European level) are unlikely to allow the doctrine of exhaustion to be circumvented by mere formalities. For the same reason, very long licences (e.g. 99 years) are unlikely to persuade the courts that the arrangement is not in substance a 'sale' for the purposes of the Software Directive. Contracts for services - The ECJ was clear that the doctrine of exhaustion does not apply to maintenance agreements and contracts for services. We may therefore see more reliance on software being provided through online services such as 'the cloud' where the arrangement is less likely to be tantamount to a 'sale of a copy' of software. Multi-user licences - The principle of exhaustion does not allow licensees to divide and sell parts of multi-user licences. This may discourage software providers from 'selling' their software under block licences for small numbers of (or even individual) users, which would presumably be more readily tradable on the secondary market than single enterprise licences. Technical protective measures - Any acquirer who resells its licence must make his own copy unusable prior to the resale. The ECJ said expressly that copyright holders may make use of technical protective measures (e.g. product keys) to ensure that this is the case. Software providers may therefore wish to investigate the technical solutions available to them to monitor and police usage in this regard to avoid a free-for-all in respect of their software. It is not clear to what extent software providers can put measures in place to use technology to prevent the transfer of software - although given the free movement of goods principles behind the ruling, it appears unlikely that the courts would be sympathetic to such practices. The judgment also leaves a number of questions unanswered, perhaps most significantly: what usage terms apply to a second acquirer of software? The ECJ observed that, in considering whether a 'sale' had occurred, the downloading of a copy of a computer program and the conclusion of a user licence agreement form an "indivisible whole". Further, the rights acquired under Article 5(1) are those necessary for use of the computer program by the lawful acquirer "in accordance with its intended purpose" - which could only be ascertained by reference to the original licence terms. So it seems likely that the usage right transferred to the second and any subsequent acquirers will be limited by the scope of the permissions set out in the original user licence. However, there is nothing in the judgment that suggests that any other contractual obligations should apply as between the software provider and any new acquirer. Moreover, the ECJ was clear that any separate agreements such as maintenance and support agreements will not be transferred as these are not subject to the doctrine of exhaustion. As such, it is unlikely any new acquirer could demand any future patches, upgrades or support from the software provider without entering into a new agreement with the software provider directly.

Individual character: the Karen Millen decision

Overall impression which design produces on informed user must be different from that produced on such a user not by a combination of features taken in isolation and drawn from a number of earlier designs, but by one or more earlier designs, taken individually Informed user (fictional character) = the regular user of articles of the same sort as the design PepsiCo: "particularly observant one, either because of his personal experience or his extensive knowledge of the sector in question" though not an expert Not average consumer either (trade mark law)

... From "substantial part" to "part"?

Shift from "substantial, vital and essential part" to non-de minimis in UK courts Quality rather than quantity (Lord Hoffmann in NLA v Marks&Spencer) The part taken must be protectable How about this and Kanye West case? What does protectable mean?? Infopaq (once again)! So: is there still a UK infringement standard?

Differences from other IP rights

Subject-matter Requirements for (and entitlement to) protection Duration

Rights harmonized by EU directives

Subject-matter specific harmonization, eg Computer programs (Directive 2009/24/EC, aka Software Directive) Databases (Directive 96/9/EC, aka Database Directive) General harmonization: InfoSoc Directive Right of reproduction (Art2) Right of communication/making available to the public (Art3) Right of distribution (Art4) This is also why CJEU decisions matter so much!

• Temple Island Collections Ltd v New English Teas Ltd [

Temple Island v New English Teas was a case in the England and Wales Patents County Court, heard on 28 November 2011, in which Temple Island Collections Ltd. sued New English Teas Ltd. and Nicholas John Houghton over copyright infringement for using a monochrome image of the Houses of Parliament and London Bridge with a colour picture of a red London bus on the Westminster Bridge. Defence The defence turned largely on the fact that similar works had been pre-existent and seen by the defendants before the creation of the image at issue. Some of these images pre-dated the work the claimant had created; some did not. The defence also drew attention to differences between the images. Judgment Judge Birss QC, found for the claimant, as he found "the defendants' work does reproduce a substantial part of the claimant's artistic work."[1] Birss held that, while some aspects of the claimants' work were absent from the offending image, sufficient aspects were present to constitute copyright infringement, conversely he held that the claimant's submission of what would constitute an infringing work was over-broad saying "I am sure there are many things satisfying the claimant's definition which would not infringe."[1] Birss held that defence argument of prior works was irrelevant, since there was on the one hand no claim that the claimants work was influenced by these works, and on the other hand, there was a causal link between the defendants' desire to use an image like the claimant's image and the production of the offending image, that was not disturbed by the search for similar images.[1] Controversy The case caused some controversy, as appearing to widen the scope of copyright protection in the composition of visual images.[2] Intellectual property barrister Jane Lambert expressed unease at the decision, over the move towards protection of idea rather than expression of an idea.[3] The claimant asserted infringement of their copyright in a photograph. It showed the Houses of Parliament in black and white with a London bus in red. The original action had been settled and the proposed image withdrawn as a copy. The defendants had however produced their own image, but one which fitted the same description. Held: The work was infringing: ' I have not found this to be an easy question but I have decided that the defendants' work does reproduce a substantial part of the claimant's artistic work. In the end the issue turns on a qualitative assessment of the reproduced elements. The elements which have been reproduced are a substantial part of the claimant's work because, despite the absence of some important compositional elements, they still include the key combination of what I have called the visual contrast features with the basic composition of the scene itself. It is that combination which makes Mr Fielder's image visually interesting. It is not just another photograph of cliched London icons.' and ' I sympathise with Mr Houghton in his wish to use an image of London landmarks. He is free to do so. There are entirely independent images of the same landmarks available to be used which predate publication of Mr Fielder's picture. But the defendants do not want to use those, no doubt for their own good reasons. Perhaps they did not look as attractive as the claimant's image? The defendants went to rather elaborate lengths to produce their image when it seems to me that it did not need to be so complicated. Mr Houghton could have simply instructed an independent photographer to go to Westminster and take a picture which includes at least a London bus, Big Ben and the Houses of Parliament. Whatever image was produced could then have been used on the tins of tea. Such an image would not infringe. It may or may not have the same appealing qualities as the claimant's image. Even if it did they would be the result of independent skill and labour employed by the independent photographer. Again however that is not what happened.' Birss QC HHJ said: 'Reviewing the matter in court, a measure of clarity emerged, the upshot being that defendants deny infringement but they do not advance a case of independent design. They contend that the question of infringement can be decided objectively, considering two matters, first taking care about what exactly is original about the claimant's copyright work and second by conducting an objective comparison between the Tea Bag Tin Image and the 2005 Work. They contend that Mr Houghton's intention when he set out in February 2010 to produce a new red bus image was to avoid producing a substantial reproduction of the 2005 Work but they accept that his intention is irrelevant and accept that Mr Houghton obviously knew about the claimant's work in question'

Privacy protection

The 'right to be left alone' (Justice Brandeis) No privacy tort in the UK Protection stemming from the EU and CJEU GDPR - entered into force on 25/5/2018 Right to be forgotten (right to be delisted) - Google Espana, C-131/12 Requirements (paras 93-94) Inadequate Irrelevant or no longer relevant Excessive in relation to purposes and in the light of the time that has elapsed. Scale of delisting: Google v CNIL, C-507/17 (in progress) AG Szpunar: limited to EU (global delisting might unduly affect freedom of information/expression)

Stichting Brein v Ziggo (2017)

The case arose in the Netherlands, where Stichting Brein, an anti-piracy organisation, applied to the Dutch courts for an injunction against internet access providers Ziggo and XS4ALL that would order them to block access to TPB for their customers. When the case came before it, the Dutch Supreme Court noted that the permissibility of injunctions of this kind is dependent on the correct interpretation of Article 8(3) of the InfoSoc Directive. According to this provision, Member States must ensure that copyright holders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe copyright. The Dutch Supreme Court questioned whether the relevant 'third party' - in this case TPB - must be found to have committed direct copyright infringement itself before the obligation to ensure that injunctions are available to right holders can apply. As a result, what exactly TPB does became the focus of the case. As the CJEU explained, TPB is an indexer of BitTorrent files. BitTorrent is a protocol through which users can share files. In short, what TPB does is: "[make available and manage], on the internet, a sharing platform which, by means of indexation of metadata relating to protected works and the provision of a search engine, allows users of that platform to locate those works and to share them in the context of a peer-to-peer network." [18] The question before the court was therefore whether this activity amounts to a communication to the public and thus to copyright infringement. Judgment The CJEU approached the issue through its now familiar formula for finding a communication to the public. According to this, the infringement of this exclusive right requires two cumulative elements: a) an 'act of communication' of a work and b) the communication of that work to a 'public'. As the Court has repeatedly stressed, in interpreting each of these, it is necessary to take into account 'several complementary criteria, which are not autonomous and are interdependent.' These criteria must be applied individually and in light of their interaction with one another, given that in different specific situations, they may be met to varying degrees. Consequently, an 'individual assessment' of the circumstances of each case will always be necessary. a) 'Act of communication' As previous case law has indicated, the existence of an 'act of communication' will depend on whether the user has played an 'indispensable role' through a 'deliberate intervention'. Specifically, the user must have intervened, in full knowledge of the consequences of her action, to give access to a protected work to persons who would not otherwise have been able to enjoy it. In light of its earlier case law, the Court concluded that any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an 'act of communication'. Applying this principle to the facts of the case, the Court first noted that there was no doubt that works were, by means of TPB's website, being made available to the public. The pertinent issue was instead who was responsible for this making available. The Court acknowledged that the work was placed on the platform not by TPB itself, but by its users. Nevertheless, the Court concluded that the management of an online sharing platform amounts to an intervention to provide access to protected works in full knowledge of the consequences. In support of this conclusion the Court mentioned that, absent TPB, it would be either impossible or more difficult for the users to share the work online. The Court also stressed that the platform indexes torrent files in such a way that the works may be easily located and downloaded and classifies the works under different categories. The platform's operators additionally check to ensure that a work has been placed in the appropriate category, delete obsolete or faulty torrent files and actively filter some content. b) 'A Public' With regard to the second element of 'a public', as in earlier case law, the Court explained that this refers to a group of people of an indeterminate number that is of a certain, not insignificant, size. It is not necessary for the relevant audience to be reached simultaneously. Instead, the cumulative effect of making works available to a large number of people in succession must be taken into account. Given that TPB is used by a considerable number of 'peers', in the instant case this criterion was easily met. In line with the CJEU's standing case law, it is additionally necessary that either this 'public' be a 'new' one, i.e. one that was not already taken into account by the copyright holder when she authorised the initial communication to the public of the work, or that the communication take place through technical means different from those which she employed. According to the Court, in this case the first of these two possibilities is established. To achieve this result, the CJEU relied heavily on its earlier hyperlinking case law. As the Court first declared in last September's GS Media, the internet is of particular importance to freedom of expression and information. As a result, in enforcing copyright online, 'the right balance' must be struck between that freedom and the interests of copyright holders. In applying this principle in that case, it was established that a hyperlinker may only be held liable for linking to copyright infringing material if she knew or ought to have known that the hyperlink provides access to a work unlawfully posted online. A similar logic was followed in the present decision. The CJEU found that TPB had knowledge of the fact that its platform was being used by its users to infringe copyright. This was substantiated by reference to the following facts: The operators of the TPB were informed that their platform provides access to works published without the authorisation of the rightholders; They also made clear, on blogs and online forums, their intention that their platform be used to infringe and encouraged users to engage in such infringement; A very large number of torrent files on TPB relate to works published without the consent of the rightholders, meaning that its operators 'could not be unaware' that their platform provides access to works published without the consent of the rightholders; The making available and management of TPB is carried out for the purpose of obtaining profit, in the form of advertising revenues. As a result of the fulfilment of both of the two basic conditions, the Court concluded that TPB does indeed communicate works to the public. Consequently, the second question submitted by the Dutch court on whether an injunction can be ordered to block access to a website which does not itself engage in direct copyright infringement was not addressed. Comment Certainly, it's hard to argue with the basic sentiments behind the decision. As the CJEU notes, the operators of The Pirate Bay clearly intend to enable copyright infringement by their end-users. Moreover, in this particular instance, they had received notification that their platform in fact enables such infringement. As a result, it seems entirely appropriate that they should be held liable. Why the notion of 'communication to the public' had to be used to achieve this result is however less obvious. As the CJEU itself accepts, the infringed works were placed on TPB not by its own operators but by third parties. This would seem to indicate that it is in fact others who engage in the relevant act of communication. To mitigate the effect of the CJEU's decision to find otherwise, the operators are only held liable on the basis of their knowledge of this unlawful third party activity. In this way, the additional mental element first introduced by the CJEU in its hyperlinking case law is now given wider applicability. The result could have implications extending far beyond the liability of TPB, to the liability of any internet intermediary whose services are used by others in the infringement of copyright. Yet, as multiple commentators have pointed out, knowledge was never a traditional condition for direct copyright infringement. Instead, copyright infringement has generally been understood to be a strict liability tort. Why has the Court opted for this approach? The answer might be found in the AG's Opinion, which argued that a harmonised EU answer to the problem of online infringement is necessary. This idea is far from objectionable: in the era of the internet, a comprehensively harmonised European copyright law makes much more sense than a fragmented one. But the lack of a real harmonisation of indirect liability in the directives nevertheless remains the current reality of EU copyright law. In Ziggo, the Court attempts to sidestep that reality by over-expanding the harmonised rules of direct copyright liability. In essence, this amounts to a judge-made harmonisation of indirect copyright liability through the application of the rules of primary liability, adjusted for the purpose by appeal to freedom of expression, the Charter of Fundamental Rights and the need for balance. There is a certain ingenuity to this solution. Combined with the safe harbours of the E-Commerce Directive, the result could be a fairly robust EU harmonisation of indirect copyright liability: the directive-based safe harbours determine when liability cannot be imposed on indirect infringers and the CJEU-made expansive interpretation of the right of communication to the public determines when it can. The result is a pleasing complementarity between the E-Commerce Directive and the InfoSoc Directive. Gaps nevertheless do remain: a safe harbour system is not the same as a harmonised substantive indirect liability regime. With this in mind, whether the approach adopted by the Court truly solves the current absence of any real harmonisation of indirect liability is worth considering. What, for example, would be the position of a hypothetical BitTorrent indexing site that, unlike TPB, could not be said to have knowledge that its services were used to infringe copyright? Under the new knowledge-based case law, it would presumably be exonerated from any accusation of communicating works to the public. This alone however would not be enough to ensure complete harmonisation. Absent a safe harbour dedicated to peer-to-peer indexers, the CJEU will have to allow Member States to deal with questions of indirect liability as they see fit. Fragmentation will therefore persist, while in the meantime damage might be done to the traditional balance between the rules of direct and indirect copyright liability in those national systems that distinguish between the two. Another question concerns whether the exceptions and limitations of Article 5(3) of the InfoSoc Directive should now be taken to apply to indirect communicators to the public as well. The initial assumption ought to be yes, as no limitation for infringers acting with knowledge is introduced by that provision. Nevertheless, in GS Media the Court suggested (in para. 53) that that will not be the case with regard to hyperlinkers. In Ziggo, no relevant information is provided for torrent indexers. Admittedly, refusing to allow platforms that are knowingly involved in third parties' performance of restricted acts from relying on exceptions and limitations does make sense. Nevertheless, if both direct and indirect infringers are to be found to in fact be committing the same wrongdoing, some thought will have to be given to the mechanism that will allow for this result. In any case, given this turn of events, the obvious question arises: are we now to assume that knowledge forms a necessary condition of any finding of communication to the public? Has copyright infringement in the EU been turned into fault-based tort? For the moment at least, this remains doubtful. What is far more likely is that the CJEU will, in future, rely on the variable normative power it has assigned to the multiple interdependent criteria on which it establishes communication to the public to conclude that, in truly direct infringement cases, knowledge is not a prerequisite. In support of this conclusion it is worth noting that, in the present case, the knowledge condition was softened considerably in comparison to the earlier hyperlinking judgments. While in GS Media the CJEU introduced a rebuttable presumption of knowledge where the hyperlinking activity is carried out for profit, in Ziggo the Court makes no mention of such a mechanism. The Court does note that TPB operates for the purpose of obtaining profit, but only as one indication among many of TPB's knowledge of the infringements on its platform. This would seem to suggest that the kind of knowledge that is necessary to find an infringement can be calibrated depending on the circumstances of the case. At the same time, the Court did stop short of introducing a condition of actual knowledge, as had been advised by the AG. Depending on how future cases are decided, this could prove significant. The AG made his recommendation on the realisation that an 'ought to have known' construction would risk conflicting with the general monitoring obligation established by the E-Commerce Directive. In its judgment, the CJEU expressed no preference either way, but instead simply limited itself to making reference to a collection of evidence that seem to indicate both actual knowledge (e.g. notification of infringement) and constructive knowledge (e.g. the large number of torrent files). It thus remains to be seen how the Court would handle an intermediary with no actual knowledge, but with a profit-making nature and a large user-base. Presumably, in such cases, the directive-based prohibition on general monitoring will take precedence over a CJEU-introduced 'non-autonomous' criterion. It is moreover possible that this is a problem that could simply be solved by practical realities: if a platform has a reputation for infringement, it is likely that at least one notice will have been sent by rightholders. If it is a 'diligent economic operator', it will probably host large amounts of non-infringing content, so that it will be harder to claim that it 'could not have been unaware' of the existence of infringements on its services. In any case, as these considerations make clear, absent a principled division between the rules of direct and indirect copyright liability, the difficult issue in every case will be deciding what amount of knowledge it is appropriate to demand before liability can attach. Stating that an 'individual assessment' of the circumstances of each case is always necessary is all very well, but it does not lend itself to great legal certainty. It should be noted that the above concerns are all the more valid given that, in the present case, no real need to find that The Pirate Bay was itself communicating works to the public was necessary to enable the injunctions against Ziggo and XS4ALL that were, at the end of the day, the actual contested issue. As has earlier been argued, the wording of Article 8(3) of the InfoSoc Directive leaves plenty of room for injunctions against ISPs that require them to block websites used by third parties to infringe copyright. To the extent that the interests of the website itself must be taken into account, the CJEU's traditional 'fair balance' approach could have been easily tweaked to reflect that. This being said, the timing of the judgment might prove opportune. It is possible that the solution opted for by the Court can pre-empt the discussions currently unfolding on the liability of host service providers in the context of EU copyright reform. In Recital 38 of the Commission's new copyright proposal it is suggested that providers that host third party infringements in a public manner by definition go beyond the mere provision of physical facilities and perform acts of communication to the public. If that were the case, the only way for such providers to avoid liability would be to abide by the conditions of Article 14 of the E-Commerce Directive. The Recital then suggests that this provision will not apply where the provider 'plays an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature of the means used therefor'. There are many problems with this interpretation both as concerns EU copyright law and the safe harbour. The Court's new approach might however put it to rest. A consistent application of the new mental element to hosting services would mean that, arguably, unless such providers have knowledge of an infringement performed using their services, they cannot be said to have communicated works to the public in the first place. If that is the case, the expansive interpretation of an 'active role' advocated by the Commission would have no effect on their liability, unless they can be shown to be secondary infringers under national norms.

• Tidy v The Trustees of the Natural History Museum and Another (1995)

The case involved the cartoonist, Bill Tidy (1933-), in his claim that the reproduction of his cartoon sketches of dinosaurs in reduced size constituted a distortion, or was otherwise prejudicial to his honour or reputation. Tidy, who was well-known for his sketches for the satirical magazines Punch and Private Eye, entered into a contract, between December 1991 and January 1992, with the Trustees of the National History Museum, the first defendant, to create a series of cartoons about dinosaurs. The contract entitled the museum to display copies of the cartoons during a proposed exhibition scheduled for 1995. Each cartoon produced by Tidy measured 420 millimetres by 297 millimetres. The copyright in the original drawings remained vested with Tidy. In May 1993, the second defendant published and distributed a book entitled, 'The Natural History Museum Book of Dinosaurs'. The book contained reproductions of Tidy's dinosaur cartoons, but the reproductions of eight of the relevant cartoons in the book were reduced in size to 67 millimetres by 42 millimetres. Moreover, the cartoons were given a background colouring of pink and yellow, whereas the original cartoons had been entirely in black and white. Tidy, in an application for summary judgment, complained that the reproduction of the cartoons represented a breach of his copyright on two grounds. Firstly, he insisted, he had not consented to the reproduction. Further, he argued that the reproduction in the defendant's book amounted to derogatory treatment of the cartoons within the meaning of section 80 (1) of the Copyright, Designs and Patent Act 1988. In Tidy's view, the reproduction of his images on a smaller scale detracted from the visual impact of the cartoons, made some of the captions difficult to read, and gave the impression that Tidy "could not be bothered" to redraw the cartoons in a size suitable for publication in the book. The application came before Mr Justice Rattee on March 29th, 1995 in the Chancery Division of the High Court, London. The defence, filed on behalf of the Museum, initially did not admit to any breach of copyright. However, by the time Rattee J considered the matter, the defendant had admitted that reproducing the plaintiff's cartoons in a book without his consent did represent a breach of copyright. Therefore, the sole issue for Rattee J to consider was whether the plaintiff should have summary judgment for a declaration that the reproduction of the cartoons in the reduced size format amounted to derogatory treatment of the plaintiff's cartoons within section 80(1) of the 1988 Act. Section 80(1) provides that: 'The author of a copyright literary, dramatic, musical or artistic work... has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.' For the purpose of this section, 'treatment' of a work means any 'addition to, deletion from or alteration to or adaption of the work'. It was not in dispute that the reproduction and reduced size of the cartoons amounted to 'treatment' of Mr Tidy's work. The issue was whether or not that treatment was derogatory within the meaning given to that term in para. b of subsection (2) of section 80. To be derogatory, the treatment concerned - in this case, a reproduction of cartoons in reduced size in the second defendant's book - must amount to a 'distortion' or 'mutilation' of the plaintiff's work, or must 'otherwise [be] prejudicial to the honour or reputation' of the plaintiff's work. The plaintiff's counsel, Ms (later Professor) Alison Firth, did not contend that the Book's illustrations amounted to a mutilation, since these were exact reproductions, albeit in reduced dimensions, of Mr Tidy's work. She did, however, contend that the reproduction amounted to a "distortion" of the work, or, alternatively, that it was "otherwise prejudicial" to the honour or reputation of Mr Tidy. Further, Ms Firth contended that a trial on this issue was unnecessary, as even a cursory examination of the reproductions would make it apparent that they represented a distortion of the plaintiff's work, or were otherwise prejudicial to his reputation, and that there was no defence to the claim. Mr Cunningham, counsel for the defendants, sought to have the application for summary judgment dismissed on procedural grounds, namely the failure by the plaintiff's counsel to file an affidavit under the rules of the Supreme Court. Rattee J. found this matter irrelevant and was satisfied he could give judgment without the said affidavit. In giving his judgment, Rattee J. refused the plaintiff's application for summary judgment, explaining that he was far from satisfied that the reproductions amounted to a distortion of the drawings. He stated that: "...simply looking at the book, although I can see, having regard to their size, the reproduced cartoons are not as effective in their impact on the eye as the full size originals, and although I can see that it is considerably more difficult to read some of the captions on some of them than in the original size, I am far from satisfied that it is clear beyond argument that the small size reproduction of the cartoons amounts in any way to a distorting of the original." Moreover, in considering counsel's alternative claim that even if there was no distortion, it should be abundantly clear on the evidence before the court (the originals and reproduction) that the reproduction was prejudicial to the honour or reputation of the plaintiff, Rattee J was also unconvinced. He stated that: "I personally find it difficult to see how I could possibly reach the conclusion that the reproduction complained of is prejudicial to the honour or reputation of the plaintiff without having the benefit of cross-examination of any witnesses giving evidence on that point." Rattee J referred to the Canadian case, Snow v The Eaton Centre 70 C.P.R. 105 which considered a comparable section referring to treatment of a work in a way prejudicial to the honour or reputation of the author. The presiding judge, O'Brien J. said that the words "prejudicial to honour and reputation involved a certain subjective element or judgment on the part of the author, so long as it was reasonably arrived at". Rattee J. held that, before accepting the plaintiff's view that the reproduction in the book complained of was indeed prejudicial to his honour or reputation, he would have to be satisfied that the view was one that was reasonably held, which "inevitably involves the application of an objective test of reasonableness". He concluded by stating that: "It is sufficient for the purposes of disposing of the present summons that I am far from satisfied that there is no possible defence to the claim made by the plaintiff. It seems to me that there is a possible defence, and I need put it no higher for present purposes, on the grounds that in fact the reputation of the plaintiff would not be harmed one whit in the mind of any reasonable person looking at the reproduction of which he complains."

EU harmonization

Through directives (and a couple of regulations) See EU copyright acquis here Implementation by EU Member States Not an EU-wide copyright title

Telekabel, C-314/12

When several fundamental rights at stake balance needed Blocking injunctions compatible with EU law, even if not specific Cf Opinion of AG Cruz Villalón Up to ISPs to choose how Then prove taken all reasonable measures Measures must be targeted so to respect users' freedom of information (liability?)

• Pez Hejduk v EnergieAgentur.NRW GmbH,

Your copyright is being infringed by an online company based outside the UK and you want to take action. Your first reaction may be to ask for local lawyer recommendations in the jurisdiction where the company is based, but is there an easier way? The recent CJEU ruling in Case C-441/13, Pez Hejduk v EnergieAgentur.nrw Gmbh, may mean that there is. Historically, the question of jurisdiction has always been a tricky one. The Brussels I Regulation (44/2001) (the Regulation) enshrines the key principle behind the issue: jurisdiction is usually based on the defendant's domicile, save in a few well-defined situations. This has often forced potential claimants to weigh up whether litigation in a foreign, unknown jurisdiction is worth the time and money. However, last month's decision by the CJEU held that a member state court has jurisdiction to hear an infringement action, due simply to the fact that the infringing copyright work is accessible online in that country. So such unattractive foreign proceedings may no longer be needed. Background to Pez Hejduk v EnergieAgentur.nrw Gmbh The claimant, Ms Hejduk, an Austrian national and professional photographer, authorised the use of some of her photographs for a conference in 2004 organised by the defendant, EnergieAgentur (Energie), a German company. Following the conference, Energie continued to use Ms Hejduk's photographs without consent and without providing a statement of authorship. The photographs were uploaded in Germany, but available to view and download from Energie's website. Ms Hejduk decided to take action in the Austrian courts, demanding damages in the sum of EUR 4,050. Energie objected to the Austrian court's jurisdiction on the grounds that it is a German company, with a website directed at a German audience and, in addition, the act of uploading the photographs took place in Germany. The Austrian court referred the question of jurisdiction to the CJEU for a preliminary ruling. Question referred to the CJEU In essence, the local court asked whether the Regulation can be interpreted as providing jurisdiction to a member state court, where a claim is brought for infringement of copyright by virtue of the fact that the infringing photographs were accessible online in its territorial jurisdiction. Judgment of the CJEU In its judgment, the court stressed that the Regulation's key principle that jurisdiction is based on the defendant's domicile should be autonomously and strictly interpreted. However, Section 2 of Chapter II of the Regulation allows for certain intellectual property cases to be brought in "the place where the harmful event occurred or may occur". Relying on the previous case of Coty Germany1 , the court determined that this exception, set out at Article 5(3), provides jurisdiction to a court on both the basis of (i) the place where the damage occurred and (ii) the place of the event giving rise to it. It is therefore up to the claimant to elect in which of these jurisdictions to bring its action. While the court accepted that the causal event of the damage (i.e., the uploading of the photographs) took place in Germany, it considered that this was not relevant in determining jurisdiction. Furthermore, based on previous case law including Pammer and Hotel Alpenhof2 and Pinckney3, the court considered that the Regulation does not require the website, which had a .de country code domain name, to be "directed to" an Austrian audience. On this basis, the court determined that the mere accessibility of the copyright works in Austria meant that the Austrian courts did have jurisdiction to hear Ms Hejduk's claim for copyright infringement. Crucially, the court did impose one major limiting factor on this jurisdictional basis. It determined that although a national court is best placed to judge whether the rights guaranteed in that country had been infringed in accordance with the national implementation of the Information Society Directive4, it could only rule on and award damages in respect of infringement which took place within that territory. Implications of the judgment On first inspection the judgment looks to be a positive one for copyright holders. Indeed, while this case concerned photographs, it is thought that its principles will be applicable to all kinds of unauthorised postings online of copyright works and indeed of other unregistered intellectual property rights. However, the flexibility that the decision provides to rights holders to choose in which jurisdiction to bring a claim is significantly undermined by the fact that recovery is limited to damages for infringement within that jurisdiction alone. Local actions may be appealing on the basis of familiarity and relative predictability but, unless the defendant is domiciled in that member state, this ruling does not offer a pan-European resolution. Given the limitation of damages, rights holders will have to think carefully about where to commence litigation. One foreseeable issue is that without information on the quantum of damages in any member states where infringement has occurred, potential claimants will find it hard to weigh up where it would be most advantageous to bring a claim. In addition, while some rights holders may be satisfied with a local court victory for a limited sum of damages, a rights holder may then have to face the frustration and added cost of trying to enforce that decision in the domestic court of the defendant. In spite of its limitations, it is foreseeable that the decision may encourage some forum shopping in this area. However, our advice to such shoppers has to be, caveat emptor!

walter v lane

a journalist recorded a political speech in shorthand. wich was eventually oublished held; the journalist owned copyright in the report of the speech because he expended skill and labour in recoding it (would have been different if recorded using a sound recorder)

Deckmyn v Vandersteen

a paraody must bring to mind the prginal work, whilst clearly being different in some way. a paraody must have a humorous element.

Lion Laboratories v Evans

a whistleblower published internal documents from the manufacctoer of breathalyzers which showed the results could be unreliable. he was sued for copyright infringement. held: there was a defence as the reproduction of the material was in the public interest in a fair criminal justice system.

• Infopaq International A/S v Danske Dagblades Forening

nfopaq International A/S v Danske Dagblades Forening (2009) [1] was a decision of the European Court of Justice concerning the interpretation of Directive 2001/29/EC on the harmonisation of certain aspects of copyright, and the conditions for exemption of temporary acts of reproduction. It established that (1) an act occurring during a data capture process is within the concept of reproduction in part within the meaning of Article 2 of Directive 2001/29, if the elements reproduced are the expression of the intellectual creation of their author, and (2) the act of printing out an extract of words during a data capture process does not fulfill the condition of being transient in nature as required by Article 5(1) of Directive 2001/29. Facts Infopaq,[2] a media monitoring and analysis business, was engaged in sending customers selected summarized articles from Danish daily newspapers and other periodicals by email. The articles were selected on the basis of certain subject criteria agreed with by customers and made available by means of a data capture process. Danske Dagblades Forening (DDF),[3] a professional association of Danish daily newspaper publishers, assists its members with copyright issues. DDF became aware that Infopaq was scanning newspaper articles for commercial purposes without authorization and complained to Infopaq about this procedure. The data capture process comprises five phases. First, the publications are registered manually in an electronic registration database. Secondly, the publications are scanned, creating a TIFF (Tagged Image File Format) file created for each page. When scanning is completed, the TIFF file is transferred to an OCR (Optical Character Recognition) server. Thirdly, the OCR server translates the TIFF file into data that can be processed digitally. During that process, the image of each letter is translated into a character code which tells the computer what type of letter it is. The OCR process is completed by deleting the TIFF file. Fourthly, the text file is processed to find a search word defined beforehand. In order to make it easier to find the search word when reading the article, the five words which come before and after the search word are captured. At the end of the process the text file is deleted. Fifthly, at the end of the data capture process, a cover sheet is printed out for of all the pages where the relevant search word was found. Procedural history Infopaq disputed DDF's claim that the procedure required consent from the rightholders and brought an action against DDF before the Østre Landsret[4] (Eastern Regional Court), claiming that DDF should be ordered to acknowledge that Infopaq is entitled in Denmark to apply the above-mentioned procedure without the consent of DDF or of its members. After the Østre Landsret dismissed that action, Infopaq brought an appeal before the Højesteret, Denmark's highest court. The parties disagreed whether there was reproduction as contemplated by Article 2 of Directive 2001/29, as well as whether, if there is reproduction, the acts in question were covered by the exemption from the right of reproduction provided for in Article 5(1) of that directive. The Højesteret court then referred 13 questions to the European Court of Justice. The first was if the storing and subsequent printing out of a text extract from an article in a daily newspaper, consisting of a search word and the five preceding and five subsequent words, can be regarded as an act of reproduction protected under Article 2 of Directive 2001/29. Questions 2-12 related to whether acts of reproduction occurring during a data capture process satisfy the conditions laid down in Article 5(1) of Directive 2001/29 (the act is temporary; transient or incidental; is an integral and essential part of a technological process; and the sole purpose is to enable transmission in a network between third parties by an intermediary, or a lawful use of a work or protected subject-matter; and the act has no independent economic significance), thereby not requiring consent of the relevant right holders. The thirteenth question related to whether this data capture process can be regarded as constituting a special case which does not conflict with a normal exploitation of the newspaper articles and not unreasonably prejudicing the legitimate interests of the right holder as specified in Article 5(5) of Directive 2001/29. Judgment The ECJ held that printing is not transient in nature and consent was needed for Infopaq to use the publication. In response to the first question, an 11-word extract of a protected work is a reproduction in part within the meaning of Article 2 of Directive 2001/29/EC, if the words reproduced are the expression of the intellectual creation of the author. The ECJ stated that it was for the national courts of EU countries to decide when such a reproduction is the author's expression of intellectual creation. In response to questions 2-12, the act of printing out an 11-word extract during a data capture process does not fulfill the condition of being transient in nature as required by Article 5(1) of Directive 2001/29 and, therefore, that process cannot be carried out without the consent of the relevant right holders. In light of the answer to questions 2-12, it was not necessary for the ECJ to address question 13. Significance This case highlights the problems of copyright infringement and new technology in new business models, especially those involving content aggregation.[5] This decision is considered to have had a high impact on fundamental principles of copyright law, in concluding that the European standard of originality (the author's own intellectual creation) applies not only in the limited contexts to which it has been applied in legislation such as software, photographs and databases; but to all Berne Convention "works" under the European acquis.[6]

rodney fitch

photos of furniture were orginial because skill and labour went into arranging the furniture and lighting

george hensher

to be protected, an item must have artistic character. there was no consenious on what this meant, although there was on the conculsion that the mock-up lacked it

Article 17 Design Directive: relationship to copyright

"A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State."

Section 16 CDPA

"Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by copyright." Direct or indirect doing of an act restricted by copyright must be in relation to the work as a whole or any substantial part of it

What can (could) be considered 'original'?

"[T]he [1911 Copyright] Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author." Per Peterson J, University of London Press (1916) What is worth copying is worth protecting Sufficient skill, labour and (=or) effort A few actions (eg work written when drunk ... But why?) failed on grounds of insufficient originality

Fairness factors

1. Amount (and quality) taken Would seem that you can't take whole work (but may be OK for short works) Some exceptions generally require acknowledgment, eg quotation (2.) Could have the purpose been achieved otherwise? 3. Use made of the work Not just mere reproduction: stronger case of fairness if transformative use Commercial advantage may be ... a disadvantage Plus would make some exceptions inapplicable, eg private copying (personal copies for private use) (4.) Motives of the dealing Effects on the market for original work Competition between works and risk of substitution 6. Unpublished work? Not so fair Cf US fair use (7.) How was the original work obtained?

Elements of the right

An act of communication Transmission v mere accessibility If the latter, need for 'indispensible intervention' To a public Indefinite number of persons, above de minimis threshold Access from place and at a time individually decided Other non-autonomous, interdependent criteria Eg, profit-making intention Relevance depends on the context

Also storage of infringing content falls within the scope of the right: Syed

Builds on Labianca Not just copyright Cf Recital 16 EUTMR Cf Recital 22 EUTM

Why should one register?

Certainty Protection not just against copying but also independent creation Longer protection: 25 years Unregistered Community design right: 3 years from first making available in the EU Unregistered UK design right: 10 years from first marketing

Copyright justifications: rights-based theories

Copyright as a natural right Kant: creative works as extensions of author's personality = moral claim to receive authorship credit and determine timing, manner and form of exploitation Hegel: copyright as property (mark of the free man)

What is a design?

Design protection limited to visual appearance but may extend to materials and textures as long as they can be seen Protected appearance must result from features of a product (industrial or handicraft item)

• Designer Guild v Russell Williams

Designer Guild Limited v. Russell Williams (Textiles) Limited,[1] is a leading House of Lords case on what constitutes copying in copyright infringement cases.[2] The House of Lords considered whether there was infringement of a fabric design. Although both the copyrighted work and the infringing design were different in detail, the overall impression of the designs was the same. This decision is significant because the House of Lords ruled that copyright infringement is dependent on whether the defendant copied a substantial portion of the original work, rather than whether the two works look the same.[3] The outcome suggests that in the United Kingdom the overall impression of a copyrighted work is protected if the copied features involved the labour, skill and originality of the author's work, even if the copyrighted work and infringing work are different in detail.[4] Background of case Designer Guild Limited ("DGL") and Russell Williams (Textiles) Limited ("RWT") both design and sell fabrics and wallpapers. DGL held a copyright in its Ixia design. DGL accused RWT of copyright infringement, alleging that the RWT design, Marguerite, copied Ixia. Both designs included a combination of flowers and stripes, a similar style of painting, and use of the resist effect (part of the stripe color shows through the flower petals). Under section 16(3) of the Copyright, Designs and Patents Act 1988, infringement will be found if there is copying of the work as a whole or any substantial part of it.[5] There were two issues at the trial: Did the designers of Marguerite copy from the Ixia design? Did what had been copied amount to the whole or substantial part of Ixia? The deputy judge of the Chancery Division found that RWT's Marguerite design had been copied from DGL's Ixia design and that there had been copying of a substantial part. The judge identified the copied features as: the combination and relation of flowers and stripes, the manner in which they were painted, and the "resist effect". The judge determined that the combination of these features formed a substantial part of the Ixia design. On appeal, RWT challenged the judge's finding that the copied features formed a substantial part of the Ixia design. The issue of copying was not challenged. The Court of Appeal upheld RWT's challenge to the finding of substantiality.[6] DGL appealed. The Court's decision The House of Lords allowed DGL's appeal, finding no reason to interfere with the judge's decision.[1] Lord Bingham of Cornhill Lord Bingham of Cornhill found that the Court of Appeal erred in overruling the decision of the judge because: The Court of Appeal's analysis of the dissimilarities between the two designs failed to give effect to the judge's finding that there had been copying, which was not an issue on appeal. This was in error because a finding of copying was crucial to concluding the issue of substantiality. The Court of Appeal inappropriately addressed the issue of substantiality in the manner of a first instance court.[1] Lord Hope of Craighead agreed with these reasons and also allowed the appeal.[1] Lord Hoffmann Lord Hoffmann found that the Court of Appeal erred in overruling the decision of the judge because: The Court of Appeal wrongfully engaged in a visual comparison. The issue was whether the features which the judge found to be copied from the Ixia designed formed a substantial part of this work. Once these features had been identified, there was no need to revisit whether or not the two designs looked alike. The Court of Appeal erred by dissecting the component parts of the designs, rather than considering their cumulative effect because it ignored the judge's findings of fact. The Court of Appeal erred in its belief that the defendant did not copy a substantial part of the expression of the Ixia design, but rather the idea. The techniques used in Ixia to form the expression required sufficient skill and labor from the author for the judge to find that they formed a substantial part of the originality of Ixia. The judge was in a better position to assess the substantiality issue because he assessed the credibility of the expert witnesses with experience identifying which features of the design produce a specific visual effect.[1] Lord Hoffmann provided guidance on the concept that British copyright law protects the expression of the idea rather than the idea itself. He noted two propositions about the distinction between ideas and expression: "The first is that a copyright work may express certain ideas which are not protected because they have no connection with the literary, dramatic, musical or artistic nature of the work. . . . However striking or original [the idea] may be, others are (in the absence of patent protection) free to express it in works of their own." [1] "The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they are ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work." [1] Lord Hoffmann concluded that the Ixia expression was more than just the idea of a flower-stripe combination, and therefore original enough to represent the author's skill and labour and form a substantial part of the originality of the work. A writer for the European Intellectual Property Review explained that while he did not explicitly state it, Lord Hoffmann provided a new test for whether a substantial part of the original work was copied. The proposed test is whether the part taken would itself attract copyright protection.[7] Lord Millett Lord Millett found that the Court of Appeal erred overruling the decision of the judge because: The Court of Appeal did not agree with the judge's finding that the work had been copied and as a result were too quick to reject the judge's finding of substantiality, which as a matter of impression, appellate courts should hesitate to do. The Court of Appeal erred in its understanding of the visual comparison. The question of substantiality addresses whether the copied feature is a substantial part of the copyrighted work. It may not be a substantial part of the defendant's work. Therefore, even if the defendant's design looked different from Ixia, it does not mean that the copyright was not infringed.[1]

Labianca: background

Dimensione Direct Sales offered for sale in Germany items infringing copyright in Knoll furniture Litigation ensued before German courts, and Knoll succeeded at both first instance and appeal. Case eventually reached German Federal Court In Cassina, C-456/06, CJEU held that concept of distribution, otherwise than through sale, applies only where there is a transfer of the ownership of that object (Both AG and Court) Case different from Cassina, Titus Donner, C-5/11, and Rolex, C-98/13 because here advertisement not followed by actual sale In those cases CJEU used phrase "at the very least" = acts or steps preceding sale may also fall within right of distribution The right of distribution encompasses the right to prevent "an offer for sale or a targeted advertisement of the original or a copy of that work, even if it is not established that that advertisement gave rise to the purchase of the protected work by an EU buyer, in so far as that advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it." Mere advertisement for sale may be an infringement UK law: s18 CDPA The issue to the public of copies of the work is an act restricted by the copyright in every description of copyright work. References in this Part to the issue to the public of copies of a work are to― the act of putting into circulation in the EEA copies not previously put into circulation in the EEA by or with the consent of the copyright owner, or the act of putting into circulation outside the EEA copies not previously put into circulation in the EEA or elsewhere. [...]

Type of relationship between parties

Direct Express obligation: a contract Employees and post-employment confidentiality (restraint of trade and garden leave) Implied obligation: fiduciary relationship Bank/client, doctor/patient, husband/wife What about other relationships? "It is unclear whether a duty arises automatically in relation to other personal relationships, particularly transient or commercial sexual relationships." (Bently-Sherman) Indirect Way in which information is communicated No relationship Third-party recipients: answer lies in identifying what breach of confidence protects Strangers: surely yes in privacy cases In other cases depends on knowledge (rather than legality/illegality of way in which information obtained)

Moral rights in copyright traditions

Do not fit well within incentive-based theories! UK first recognised moral rights expressly in 1988 CDPA Although it "happened to protect" them from time to time via contract and tort Last as long as economic rights (s86 CDPA) US: not huge fan of moral rights §106 US Copyright Act (via 1990 VARA) applies to very specific situations "works of visual arts" = works of fine art that exist only in a single copy or are published in signed and numbered editions of <200 copies Significant exceptions + fair use Generally last for life of the author (so even less than term of copyright)

Main differences between primary and secondary infringement

Does it matter in what context infringement takes place? Primary: NO (still true though?) Secondary: commercial setting (dealing, facilitating) Does defendant's state of mind matter? Primary: NO Strict liability (Defendant's state of mind may matter when it comes to damages) Secondary: knowing or having reason to believe Objective test (of reasonableness) But have GS Media and Ziggo changed anything??

Moral rights

Droit d'auteur / common law countries International harmonization Non-EU harmonization UK approach: attribution and integrity

Article 5 InfoSoc Directive

Except Article 5(1) (for recent application, see PRCA), OPTIONAL list EXHAUSTIVE list The three-step test in Article 5(5) (NB: reference is to 'rightholder' not 'author') Who are the addressees? Possibly national legislators and courts alike De facto different national implementations, despite: Recital 31 "Existing differences in the exceptions and limitations ... have direct negative effects on the functioning of the internal market" "The degree of harmonisation should be based on their impact on the smooth functioning of the internal market" Recital 32 "Member States should arrive at a coherent application of these exceptions and limitations"

Campbell v MGN Ltd

Facts Naomi Campbell was photographed coming out of a Narcotics Anonymous ("NA") meeting on the King's Road. The "Mirror" published these photographs with the faces of other attendees of the meeting pixelated to protect their identities. The headline alongside the photograph read "Naomi: I'm a drug addict" and the article contained in very general terms information relating to Ms Campbell's treatment for drug addiction, including the number of NA meetings she had attended. The Claimant admitted that there was a public interest justifying publication of the fact that she was a drug addict and was having therapy, but claimed damages for breach of confidentiality and compensation under s.13 Data Protection Act 1998 for the publication of further details. At the trial, Morland J upheld both claims. The Court of Appeal reversed this decision. Ms Campbell appealed. Issue Whether publication of the additional information contained in the photographs and the nature and details of the Claimant's treatment was a breach of confidence. Held Reversing the Court of Appeal by a 3-2 majority the additional information was confidential as its publication would have caused substantial offence to a person of ordinary sensibilities in the Claimant's position. The Claimant's Article 8 rights outweighed the Defendant's Article 10 rights, so that publication of the additional information was an infringement of the Claimant's Article 8 rights for which she was entitled to damages. Per Lords Nicholls and Hoffman, dissenting: The Court of Appeal were correct in holding that the additional information was within the degree of latitude that should reasonably be afforded to journalists. The Defendant's Article 10 rights justified publication of the additional information. Comment Rather like the decision in Reynolds v Times Newspapers, the House of Lords judgments generate rather more questions than answers as to how privacy law will work in practice. Giving practical advice on the parameters of the law is now difficult.

Google v Vidal-Hall [

Facts The first, second and third claimants (the Cs) were individuals who had used Apple devices to access the internet, and who had also used various Google services. D was Google Inc, which was registered in Delaware, and based in California and could not be served within the jurisdiction in accordance with the CPR. The Cs' claim was based on the distress suffered from learning that their personal characteristics formed the basis for D's targeted advertisements, or from having learnt that such matters might have come to the knowledge of third parties who had used or seen their devices. The Cs' claims were exclusively for distress and anxiety, not financial damage. The Cs used Apple's Safari browser, which was set to block Third Party Cookies which would enable the tracking and collation of browser activity. The Cs pleaded that a Safari workaround operated by D allowed it to obtain and record information about their internet use and use it for the purposes of its AdSense advertising service. They pleaded that D collated their private and personal information and used it to serve adverts to them via Adsense. The Cs' claims were in misuse of private information, breach of confidence, and under the Data Protection Act 1998 (DPA). The Cs claimed general and aggravated damages, an account of profits, an injunction and other relief. The Cs were granted permission by the Master to serve the claim form on D in California. In order to obtain permission to serve out, the Cs relied on two grounds in paragraph 3.1 of Practice Direction 6B, those found in paras 3.1(2) and (9). These permit service out in cases where: "(2) A claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction. (9) A claim is made in tort where (a) damage was sustained within the jurisdiction; or (b) the damage sustained resulted from an act committed within the jurisdiction." At the start of the hearing, the Cs issued an application notice for permission to rely on two further grounds, which permit service out in cases where "(11) The whole subject matter of a claim relates to property located within the jurisdiction. (16) A claim is made for restitution where the defendant's alleged liability arises out of acts committed within the jurisdiction." D applied for an order declaring that the English court had no jurisdiction to try the claims, and setting aside the service of the claim form, and the order of the Master. Issue On D's application: (1) Should the Master's order for service out of the jurisdiction be set aside on the basis that the Cs did not come within the grounds in PD 6B, para 3.1, being (a) 3.1(2); and (b) 3.1(9); there were four subsidiary issues under this ground: i. were the claims in tort? ii. was the claim for damage within the meaning of 3.1(9)(a)? iii. was the act complained of within the jurisdiction? iv. could the Cs be permitted to rely on this ground for the DPA claims, firstly because it was too late, and, secondly, because damage recoverable under the DPA does not include damage for distress unless there is also financial damage? (2) Was there a serious issue to be tried or a real and substantial tort? There were three subsidiary questions arising from this issue: (a) Were the claims a Jameel abuse of process? (b) Was the information private? (c) Was the data personal data within the meaning of the DPA? (3) Did the English court have jurisdiction to try the claim? On the Cs' cross application: (4) Could they serve proceedings out of the jurisdiction on the two further grounds in PD 6B, being (a) 3.1(11); and (b) 3.1(16). Held Dismissing D's application to set aside permission to serve out, and dismissing the Cs' application to rely on two further grounds to serve out. (1) Of the available grounds for granting permission to serve out: (a) The Cs could not bring themselves within the ground in 3.1(2). The fact that D had on other occasions interfered with the privacy rights of other persons was not a basis on which the court could contemplate granting an injunction. (b) (i) There was no dispute that the DPA claim counted as a claim in tort; there was no real dispute that the claim for breach of confidence was not a tort; and, in relation to misuse of private information, this was a tort within the meaning of ground 3.1(9). (ii) Damages for distress are recoverable in a claim for misuse of private information, and the Cs' claim for misuse of private information fell within ground (9)(a). (iii) The publication complained of by the Cs was effected within the jurisdiction. (iv) Firstly, the Cs were not debarred from relying on this ground for the DPA claim because they did so at this late stage. Second, the Cs each had a sufficiently arguable case that their Art 8 rights were engaged, and that they did suffer sufficiently serious damage. Although the meaning of damage under the DPA was a question of law and the general rule might have suggested that the judge should decide it, this was a controversial question of law in a developing area and it was desirable that the facts should be found. The judge did not decide the question. However, his preliminary view was that damage in s 13 of the DPA did include non pecuniary damage. (2) (a) The effect of the judge's conclusions on distress and whether the DPA claim could be brought within ground (9) was that, on recoverable damage, there was a sufficiently strong case to amount to serious issue to be tried, or a real and substantial tort. Having held that the Cs' article 8 rights were engaged and that they would overcome the threshold of seriousness, the Judge did not attach weight to Google's dissemination of information through advertising in any balancing exercise with Article 8 rights. This was not a case in which it would have been just to set aside service on the grounds that the game would not be worth the candle. (b) The information that was apparent from the Cs' screens was, on particular occasions, private information. (c) The Cs had sufficiently arguable cases that their information was personal data for the purposes of the DPA s1. (3) The Cs had clearly established that this jurisdiction was the appropriate one. (4) (a) The question of whether property included information of the kind in question was a question of law of some difficulty and should have been argued in circumstances where the parties had had a proper opportunity to put the relevant evidence and submissions of law before the court. (b) The claim in restitution was the subject of very little elaboration by the Cs, and the judge noted the observations of the judge in Ashton Investments Ltd v Rusal [2007] 1 Lloyd's Rep 311 on a similar point that the claim in that case was not in substance one in restitution. Comment There are two main points of interest in the decision. The first is that it confirms that misuse of private information is a tort. Although this had been stated in a number of earlier judgments, which were cited here, there was a lingering doubt about the status of the cause of action. The fact that the issue was fully argued here with reference to all of the relevant authorities, and the expertise of the judge in this field, do make this a significant statement of the law. The second is that the judge indicated in a preliminary view that damages for a breach of the DPA could include non pecuniary damage. The impact of the DPA in privacy law has to date been limited by the requirement that damage for distress could only be recovered if pecuniary damage had been suffered. This development has the potential to make claims under the DPA far more common in the field of privacy law.

Factors to consider

Has the information used by defendant been derived from confider's information? If information independently generated: no breach Defendant's state of mind? Irrelevant But cf belief of confidant in public interest defence Damage? Irrelevant, except Government secrets Partial use? Can be a breach Do any defences apply, notably public interest (freedom of information/expression)?

"A reasonable expectation of privacy": Campbell

If there is such expectation, no information would be trivial Wide disclosure does not mean that information no longer protectable Consideration of function of person and place of information Approach of UK courts vs ECHR in Von Hannover v Germany Does not apply to information disclosed "merely to titillate the public" Although information that 'puts the record straight' may be potentially eligible for defence: Campbell From breach of confidence to a new tort: misuse of private information ***Vidal-Hall v Google (2014)*** Implications: exemplary damages? So far damages awarded relatively modest

• Bezpečnostní softwarová asociace,

In Case C‑393/09, REFERENCE for a preliminary ruling under Article 234 EC from the Nejvyšší správní soud (Czech Republic), made by decision of 16 September 2009, received at the Court on 5 October 2009, in the proceedings Bezpečnostní softwarová asociace - Svaz softwarové ochrany v Ministerstvo kultury, THE COURT (Third Chamber), composed of K. Lenaerts, President of the Chamber, R. Silva de Lapuerta, G. Arestis (Rapporteur), J. Malenovský and T. von Danwitz, Judges, Advocate General: Y. Bot, Registrar: M. Ferreira, Principal Administrator, having regard to the written procedure and further to the hearing on 2 September 2010, after considering the observations submitted on behalf of: - Bezpečnostní softwarová asociace - Svaz softwarové ochrany, by I. Juřena, advokát, - the Czech Government, by M. Smolek and D. Hadroušek, acting as Agents, - the Finnish Government, by J. Heliskoski, acting as Agent, - the European Commission, by H. Krämer and P. Ondrůšek, acting as Agents, after hearing the Opinion of the Advocate General at the sitting on 14 October 2010, gives the following Judgment 1 This reference for a preliminary ruling concerns the interpretation of Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (OJ 1991 L 122, p. 42) and 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 (OJ 2001 L 167, p. 10). 2 The reference has been made in the course of proceedings between Bezpečnostní softwarová asociace - Svaz softwarové ochrany (Security software association; 'BSA') and the Ministerstvo kultury (Ministry of Culture) concerning its refusal to grant BSA authorisation to carry out collective administration of copyrights in computer programs. Legal context International law 3 Under Article 10(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights, which constitutes Annex 1C to the Agreement establishing the World Trade Organisation, signed in Marrakech on 15 April 1994 and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1; 'the TRIPs Agreement'): 'Computer programs, whether expressed in source code or in object code, will be protected as literary works pursuant to the Berne Convention [(Paris Act of 24 July 1971), as amended on 28 September 1979 ('the Berne Convention')].' European Union legislation Directive 91/250 4 The 7th, 10th and 11th recitals in the preamble to Directive 91/250 read as follows: 'Whereas, for the purpose of this Directive, the term 'computer program' shall include programs in any form, including those which are incorporated into hardware; whereas this term also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage; ... Whereas the function of a computer program is to communicate and work together with other components of a computer system and with users and, for this purpose, a logical and, where appropriate, physical interconnection and interaction is required to permit all elements of software and hardware to work with other software and hardware and with users in all the ways in which they are intended to function; Whereas the parts of the program which provide for such interconnection and interaction between elements of software and hardware are generally known as "interfaces".' 5 Article 1 of Directive 91/250 provides: '1. In accordance with the provisions of this Directive, Member States shall protect computer programs, by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. For the purposes of this Directive, the term "computer programs" shall include their preparatory design material. 2. Protection in accordance with this Directive shall apply to the expression in any form of a computer program. Ideas and principles which underlie any element of a computer program, including those which underlie its interfaces, are not protected by copyright under this Directive. 3. A computer program shall be protected if it is original in the sense that it is the author's own intellectual creation. No other criteria shall be applied to determine its eligibility for protection.' Directive 2001/29 6 The 9th and 10th recitals in the preamble to Directive 2001/29 state: 'Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property. If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as "on-demand" services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment.' 7 The 20th and 23rd recitals in the preamble to Directive 2001/29 state: 'This Directive is based on principles and rules already laid down in the Directives currently in force in this area, in particular [Directive 91/250], and it develops those principles and rules and places them in the context of the information society. The provisions of this Directive should be without prejudice to the provisions of those Directives, unless otherwise provided in this Directive. ... This Directive should harmonise further the author's right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts.' 8 Article 1 of Directive 2001/29 provides: '1. This Directive concerns the legal protection of copyright and related rights in the framework of the internal market, with particular emphasis on the information society. 2. Except in the cases referred to in Article 11, this Directive shall leave intact and shall in no way affect existing Community provisions relating to: (a) the legal protection of computer programs; ...' 9 Under Article 2(a) of Directive 2001/29: 'Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works.' 10 Article 3(1) of Directive 2001/29 provides: 'Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.' National legislation 11 Directive 91/250 was transposed into the Czech legal order by Law No 121/2000 on copyright and related rights and the amendment of various laws (zákon č. 121/2000 o právu autorském, o právech souvisejících s právem autorským a o změně některých zákonů) of 7 April 2000 ('the Copyright Law'). 12 By virtue of Article 2(1) of that Law, copyright covers all literary works or other artistic work created by its author, which may be expressed in any objectively perceptible form, including electronic, permanent or temporary, without regard to its scope, purpose or meaning. 13 Article 2(2) of that Law states that a computer program is also regarded as a work if it is original, in that it is an intellectual creation of its author. 14 In accordance with Article 65 of that Law: '1. Computer programs, without regard to the form of their expression, including the preparatory elements of their conception, are protected as literary works. 2. The ideas and principles on which all elements of a computer program are based, including whose which are the basis of its connection to another program, are not protected under this Law.' The dispute in the main proceedings and the questions referred for a preliminary ruling 15 On 9 April 2001, BSA, as an association, applied to the Ministerstvo kultury for authorisation for the collective administration of copyrights to computer programs, under Paragraph 98 of the Copyright Law. BSA defined the extent of those rights in a letter dated 12 June 2001. 16 That application was refused, and the administrative action brought against that refusal was dismissed. BSA then brought a legal action against those decisions before the Vrchní soud v Praze (High Court, Prague). 17 Following the setting aside of those two rejection decisions by the Nejvyšší správní soud (Supreme Administrative Court), to which the case was referred, on 14 April 2004 the Ministerstvo kultury adopted a fresh decision by which it again dismissed BSA's application. BSA therefore brought an administrative appeal before the Ministerstvo kultury, which annulled that rejection decision. 18 On 27 January 2005, the Ministerstvo kultury adopted a new decision, by which it rejected BSA's application yet again on the ground, firstly, in particular, that the Copyright Law protects only the object code and the source code of a computer program, but not the result of the display of the program on the computer screen, since the graphic user interface was protected only against unfair competition. Secondly, it stated that the collective administration of computer programs was indeed possible in theory, but that mandatory collective administration was not an option and that voluntary collective administration served no purpose. 19 BSA lodged an appeal against that decision, which was dismissed on 6 June 2005 by a decision of the Ministerstvo kultury. The association then challenged the latter decision before the Městský Soud v Praze (Regional Court, Prague). In its action, BSA submitted that the definition of a computer program in Paragraph 2(2) of the Copyright Law also covers the user interface. In its submission, a computer program can be perceived at the level both of the source or object code and of the method of communication (communication interface). 20 The Mĕstský soud v Praze having dismissed its action, BSA appealed on a point of law before the Nejvyšší správní soud. BSA takes the view that a computer program is used when it is shown in a display on user screens and that, consequently, such use must be protected by copyright. 21 As regards the interpretation of the provisions of Directives 91/250 and 2001/29, the Nejvyšší správní soud decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling: '1. Should Article 1(2) of [Directive 91/250] be interpreted as meaning that, for the purposes of the copyright protection of a computer program as a work under that directive, the phrase 'the expression in any form of a computer program' also includes the graphic user interface of the computer programme or part thereof? 2. If the answer to the first question is in the affirmative, does television broadcasting, whereby the public is enabled to have sensory perception of the graphic user interface of a computer program or part thereof, albeit without the possibility of actively exercising control over that program, constitute making a work or part thereof available to the public within the meaning of Article 3(1) of [Directive 2001/29]?' The Court's jurisdiction 22 It is apparent from the decision for reference that the facts of the main proceedings arose before the date of accession of the Czech Republic to the European Union. The first decision of the Ministerstvo kultury is dated 20 July 2001. 23 Nevertheless, following various actions by BSA, the Ministerstvo kultury adopted a fresh decision on 27 January 2005, rejecting once again BSA's claim. Since BSA has challenged that fresh decision, unsuccessfully, before the Ministerstvo kultury, it has appealed to the national court seeking annulment thereof. 24 It must be observed, firstly, that the contested decision in the main proceedings was adopted after the Czech Republic acceded to the Union, that it is prospective in its regulatory effect and not retrospective, and secondly, that the national court asks the Court for an interpretation of the European Union legislation applicable to the main proceedings (Case C‑64/06 Telefónica O2 Czech Republic [2007] ECR I‑4887, paragraph 21). 25 Where the questions referred for preliminary ruling concern the interpretation of European Union law, the Court gives its ruling without, generally, having to look into the circumstances in which national courts were prompted to submit the questions and envisage applying the provision of European Union law which they have asked the Court to interpret (Case C‑85/95 Reisdorf [1996] ECR I‑6257, paragraph 15, and Telefónica O2 Czech Republic, paragraph 22). 26 The matter would be different only if the provision of European Union law which was submitted for interpretation by the Court were not applicable to the facts of the main proceedings, which had occurred before the accession of a new Member State to the Union, or if such provision was manifestly incapable of applying (Telefónica O2 Czech Republic, paragraph 23). 27 That is not so in this case. Accordingly, the Court has jurisdiction to interpret the directives above referred to and an answer must be given to the questions submitted by the national court. Consideration of the questions referred The first question 28 By its first question, the national court asks, in essence, whether the graphic user interface of a computer program is a form of expression of that program within the meaning of Article 1(2) of Directive 91/250 and is thus protected by copyright as a computer program under that directive. 29 Directive 91/250 does not define the notion of 'expression in any form of a computer program'. 30 In those circumstances, that notion must be defined having regard to the wording and context of Article 1(2) of Directive 91/250, where the reference to it is to be found and in the light of both the overall objectives of that directive and international law (see, by analogy, Case C‑5/08 Infopaq International [2009] ECR I‑6569, paragraph 32). 31 In accordance with Article 1(1) of Directive 91/250, computer programs are protected by copyright as literary works within the meaning of the Berne Convention. Article 1(2) thereof extends that protection to the expression in any form of a computer program. 32 The first sentence of the seventh recital in the preamble to Directive 91/250 states that, for the purposes of that directive, the term 'computer program' shall include programs in any form, including those which are incorporated into hardware. 33 In that regard, reference must be made to Article 10(1) of the TRIPS Agreement, which provides that computer programs, whether expressed in source code or in object code, will be protected as literary works pursuant to the Berne Convention. 34 It follows that the source code and the object code of a computer program are forms of expression thereof which, consequently, are entitled to be protected by copyright as computer programs, by virtue of Article 1(2) of Directive 91/250. 35 Accordingly, the object of the protection conferred by that directive is the expression in any form of a computer program which permits reproduction in different computer languages, such as the source code and the object code. 36 It is also appropriate to highlight the second sentence of the seventh recital in the preamble to Directive 91/250, in accordance with which the term 'computer program' also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage. 37 Thus, the object of protection under Directive 91/250 includes the forms of expression of a computer program and the preparatory design work capable of leading, respectively, to the reproduction or the subsequent creation of such a program. 38 As the Advocate General states in Point 61 of his Opinion, any form of expression of a computer program must be protected from the moment when its reproduction would engender the reproduction of the computer program itself, thus enabling the computer to perform its task. 39 In accordance with the 10th and 11th recitals in the preamble to Directive 91/250, interfaces are parts of a computer program which provide for interconnection and interaction of elements of software and hardware with other software and hardware and with users in all the ways in which they are intended to function. 40 In particular, the graphic user interface is an interaction interface which enables communication between the computer program and the user. 41 In those circumstances, the graphic user interface does not enable the reproduction of that computer program, but merely constitutes one element of that program by means of which users make use of the features of that program. 42 It follows that that interface does not constitute a form of expression of a computer program within the meaning of Article 1(2) of Directive 91/250 and that, consequently, it cannot be protected specifically by copyright in computer programs by virtue of that directive. 43 Nevertheless, even if the national court has limited its question to the interpretation of Article 1(2) of Directive 91/250, such a situation does not prevent the Court from providing the national court with all the elements of interpretation of European Union law which may enable it to rule on the case before it, whether or not reference is made thereto in the question referred (see, to that effect, Case C‑392/05 Alevizos [2007] ECR I‑3505, paragraph 64 and the case-law cited). 44 In that regard, it is appropriate to ascertain whether the graphic user interface of a computer program can be protected by the ordinary law of copyright by virtue of Directive 2001/29. 45 The Court has held that copyright within the meaning of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author's own intellectual creation (see, to that effect, with regard to Article 2(a) of Directive 2001/29, Infopaq International, paragraphs 33 to 37). 46 Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author's own intellectual creation. 47 It is for the national court to ascertain whether that is the case in the dispute before it. 48 When making that assessment, the national court must take account, inter alia, of the specific arrangement or configuration of all the components which form part of the graphic user interface in order to determine which meet the criterion of originality. In that regard, that criterion cannot be met by components of the graphic user interface which are differentiated only by their technical function. 49 As the Advocate General states in Points 75 and 76 of his Opinion, where the expression of those components is dictated by their technical function, the criterion of originality is not met, since the different methods of implementing an idea are so limited that the idea and the expression become indissociable. 50 In such a situation, the components of a graphic user interface do not permit the author to express his creativity in an original manner and achieve a result which is an intellectual creation of that author. 51 In the light of the foregoing considerations, the answer to the first question referred is that a graphic user interface is not a form of expression 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. Nevertheless, such an interface can be protected by copyright as a work by Directive 2001/29 if that interface is its author's own intellectual creation. The second question 52 By its second question, the national court asks, in essence, whether television broadcasting of a graphic user interface constitutes communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29. 53 In accordance with that article, Member States are to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 54 It follows from the 23rd recital in the preamble to Directive 2001/29 that 'communication to the public' must be interpreted broadly. Such an interpretation is moreover essential to achieve the principal objective of that directive, which, as can be seen from its 9th and 10th recitals, is to establish a high level of protection of, inter alia, authors, allowing them to obtain an appropriate reward for the use of their works, in particular on the occasion of communication to the public (Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 36). 55 It follows that, in principle, television broadcasting of a work is a communication to the public which its author has the exclusive right to authorise or prohibit. 56 In addition, it is apparent from paragraph 46 of the present judgment that the graphic user interface can be its author's own intellectual creation. 57 Nevertheless, if, in the context of television broadcasting of a programme, a graphic user interface is displayed, television viewers receive a communication of that graphic user interface solely in a passive manner, without the possibility of intervening. They cannot use the feature of that interface which consists in enabling interaction between the computer program and the user. Having regard to the fact that, by television broadcasting, the graphic user interface is not communicated to the public in such a way that individuals can have access to the essential element characterising the interface, that is to say, interaction with the user, there is no communication to the public of the graphic user interface within the meaning of Article 3(1) of Directive 2001/29. 58 Consequently, the answer to the second question referred is that television broadcasting of a graphic user interface does not constitute communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29. Costs 59 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Third Chamber) hereby rules: 1. A graphic user interface is not a form of expression of a computer program within the meaning of Article 1(2) of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs and cannot be protected by copyright as a computer program under that directive. Nevertheless, such an interface can be protected by copyright as a work by 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 if that interface is its author's own intellectual creation. 2. Television broadcasting of a graphic user interface does not constitute communication to the public of a work protected by copyright within the meaning of Article 3(1) of Directive 2001/29. [Signatures]

• Criminal proceedings against Imran Syed,

In Case C‑572/17, REQUEST for a preliminary ruling under Article 267 TFEU from the Högsta domstolen (Supreme Court, Sweden), made by decision of 21 September 2017, received at the Court on 28 September 2017, in the criminal proceedings against Imran Syed, THE COURT (Fourth Chamber), composed of T. von Danwitz, President of the Seventh Chamber, acting as President of the Fourth Chamber, K. Jürimäe (Rapporteur), C. Lycourgos, E. Juhász, and C. Vajda, Judges, Advocate General: M. Campos Sánchez-Bordona, Registrar: A. Calot Escobar, having regard to the written procedure, after considering the observations submitted on behalf of: - the Riksåklagaren, by M. Hedström and K. Skarp, acting as Agents, - the European Commission, by J. Samnadda and K. Simonsson, acting as Agents, after hearing the Opinion of the Advocate General at the sitting on 3 October 2018, gives the following Judgment 1 This request for a preliminary ruling concerns the interpretation of Article 4(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 (OJ 2001 L 167, p. 10). 2 The request has been made in criminal proceedings brought by the Riksåklagaren (Prosecutor-General, Sweden) against Mr Imran Syed concerning the infringement of trade marks and infringements of copyright in literary and artistic works. Legal context International law 3 The World Intellectual Property Organisation (WIPO) adopted in Geneva, on 20 December 1996, the WIPO Copyright Treaty ('CT'), which was approved on behalf of the Community by Council Decision 2000/278/EC of 16 March 2000 (OJ 2000 L 89, p. 6) and came into force, as regards the European Union, on 14 March 2010 (OJ 2010 L 32, p. 1). 4 Article 6 of the CT, headed 'Right of distribution', provides in paragraph 1: 'Authors of literary and artistic works shall enjoy the exclusive right of authorising the making available to the public of the original and copies of their works through sale or other transfer of ownership.' European Union law 5 Article 4 of Directive 2001/29, entitled 'Distribution right', provides in paragraph 1: 'Member States shall provide for authors, in respect of the original of their works or copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.' Swedish law 6 The lagen (1960:729) om upphovsrätt till litterära och konstnärliga verk (Law (1960:729) on copyright in literary and artistic works) transposes Directive 2001/29 into Swedish law. 7 Paragraph 53 of that law provides: 'Any person who, intentionally or through gross negligence, takes measures relating to a literary or artistic work which constitute an infringement of the copyright in that work held by a person in accordance with Chapter 1 or Chapter 2, or an infringement of Paragraph 41, second subparagraph, or of Paragraph 50, shall be liable to a fine or to a custodial sentence of up to two years.' 8 According to Paragraph 2 of that law, such a measure may comprise, for example, exploiting that work by making it available to the public without the rightholder's consent. The third subparagraph, point 4, of that paragraph specifies that a work is made available to the public, inter alia, when copies of the work are offered for sale, rent or loan, or are otherwise distributed to the public. 9 That law does not expressly prohibit the storage of protected goods for the purpose of sale. The dispute in the main proceedings and the questions referred for a preliminary ruling 10 Mr Syed ran a retail shop in Stockholm (Sweden) in which he sold clothes and accessories with rock music motifs. In addition to offering the items for sale in that shop, Mr Syed stored such goods in a storage facility adjacent to the shop and in another storage facility located in Bandhagen (Sweden), in a suburb of Stockholm. It is established that Mr Syed's shop was regularly restocked with merchandise from those storage facilities. 11 It has been determined that the sale of several of those items infringed trade marks and copyrights. Criminal proceedings were brought against Mr Syed for trademark infringement and breach of Law (1960:729) before the tingsrätten (District Court, Sweden). According to the åklagaren (Public Prosecutor, Sweden), Mr Syed infringed the claimants' copyright by unlawfully making available to the public clothes and flags bearing the motifs protected by copyright. The prosecutor therefore took the view that all of the goods bearing such motifs which were in the shop and in the storage facilities were being offered for sale or distributed to the public, and that such acts therefore constituted an infringement of Law (1960:729). 12 The tingsrätten (District Court) found Mr Syed guilty of trade mark infringement concerning all the goods discovered. That court also found him guilty of infringing Law (1960:729) with regard to the goods bearing a copyrighted motif which were in the shop he was running, as well as with regard to the goods stored in both the storage facilities at issue, in so far as identical goods were offered for sale in the shop. The tingsrätten (District Court) took the view, in holding Mr Syed liable for the goods in the storage facilities as well, that the concept of 'offering for sale' goods which infringe the copyright held by the claimants did not apply solely to the goods which, at a given point in time, were located in Mr Syed's shop, but also applied to the identical goods in the storage facilities. In contrast, that court held that the other goods in the storage facilities could not be regarded as having been offered for sale. For all of those infringements, the tingsrätten (District Court) sentenced Mr Syed to a suspended custodial sentence and to 80 per diem fines. 13 Hearing the case on appeal, the Svea hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Stockholm, Sweden: patent and commercial division) found that Mr Syed had infringed Law (1960:729) only in so far as the goods located in his shop were concerned and not in relation to the goods in the storage facilities. That court took the view that Mr Syed had stored those goods for the purpose of sale. However, it could not be considered that those goods had been offered for sale or distributed to the public. Similarly, the handling of goods in the storage facilities did not, according to the court hearing the appeal, constitute an attempt or preparation to commit an infringement of Law (1960:729). The sentence given to Mr Syed was reduced, in so far as Mr Syed was sentenced to a suspended custodial sentence and 60 per diem fines. 14 Before the Högsta domstolen (Supreme Court, Sweden), the referring court in this case, the Riksåklagaren (Prosecutor-General) claimed that Mr Syed should be found guilty in respect of the same goods as those which the tingsrätten (District Court) had found to establish an infringement of Law (1960:729). He also submitted that the Högsta domstolen (Supreme Court) should refer the matter to the Court of Justice for a preliminary ruling concerning the interpretation of Article 4(1) of Directive 2001/29. 15 Before the referring court, Mr Syed argued that it followed from the case-law of the Court of Justice that infringement of a rightholder's distribution right by an offer for sale requires acts directed towards the public with the aim of transferring each specific item. He contended that the purchase and storage of goods cannot be considered to be such acts. An interpretation to the contrary would extend the scope of criminal liability, in breach of the principle of legality. 16 The referring court notes that Law (1960:729) and Directive 2001/29 do not expressly prohibit the storage of goods bearing a copyrighted motif for the purpose of sale. It adds that, following the decision of the Court of Justice of 13 May 2015, Dimensione Direct Sales and Labianca (C‑516/13, EU:C:2015:315), there may be an infringement of an author's exclusive right under Article 4(1) of Directive 2001/29 as a result of measures or steps that take place prior to the performance of a contract of sale. Nonetheless, the question arises whether goods bearing a protected motif which are kept, by a person, in storage facilities can be regarded as being offered for sale when that person offers identical goods for sale in a retail shop run by him. 17 In those circumstances, the Högsta domstolen (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: '(1) When goods bearing protected motifs are unlawfully offered for sale in a shop, can there also be an infringement of the author's exclusive right of distribution under Article 4(1) of Directive 2001/29 as regards goods with identical motifs, which are held in storage by the person offering the goods for sale? (2) Is it relevant whether the goods are held in a storage facility adjacent to the shop or in another location?' Consideration of the questions referred 18 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 4(1) of Directive 2001/29 must be interpreted as meaning that 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 copyright holder's exclusive right of distribution, as referred to in that provision, when that retailer offers for sale in a shop, without the authorisation of the copyright holder, goods identical to those which the retailer is storing without that rightholder's authorisation. The referring court also asks the Court of Justice to specify whether it is relevant, in that regard, to consider the distance between the place of storage and the place of sale. 19 Under Article 4(1) of Directive 2001/29, Member States are to provide an exclusive right for authors, in respect of the original of their works or of copies thereof, to authorise or prohibit any form of distribution to the public by sale or otherwise. 20 It should be observed that, since Directive 2001/29 serves to implement in the European Union the obligations of the Union under, inter alia, the CT and since, according to settled case-law, EU legislation must, so far as possible, be interpreted, in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union, the notion of 'distribution' contained in Article 4(1) of that directive must be interpreted in accordance with Article 6(1) of the CT (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 23 and the case-law cited). 21 The notion of 'distribution to the public by sale' in Article 4(1) of that directive therefore has the same meaning as the expression 'making available to the public ... through sale' in Article 6(1) of the CT (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 24 and the case-law cited). 22 Taking that context into account, the Court has found that distribution to the public is characterised by a series of acts going, at the very least, from the conclusion of a contract of sale to the performance thereof by delivery to a member of the public. A trader in such circumstances bears responsibility for any act carried out by him or on his behalf giving rise to a distribution to the public in a Member State where the goods distributed are protected by copyright (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 25 and the case-law cited). 23 It follows from that line of case-law, including the words 'at the very least' used by the Court, that it is not excluded that the acts or steps preceding the conclusion of a contract of sale may also fall within the concept of 'distribution' and be reserved, exclusively, to the holders of copyright (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 26). 24 In that regard, if distribution to the public must be considered as proven where a contract of sale and dispatch has been concluded, the same is true of an offer of a contract of sale which binds its author, since such an offer constitutes, by its very nature, an act prior to a sale being made (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 27). 25 The Court has also held, in essence, that such an act can constitute an infringement of the exclusive distribution right, provided for in Article 4(1) of Directive 2001/29, even if that act is not followed by the transfer of ownership to a purchaser of the protected work or a copy thereof (see, to that effect, judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 32). 26 Therefore, an act prior to the actual sale of a work or a copy thereof protected by copyright, which takes place without the rightholder's consent and with the objective of making such a sale, may infringe the distribution right as defined in Article 4(1) of Directive 2001/29 (see, to that effect, judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 28). 27 Although carrying out the sale is not a necessary element for the purpose of establishing an infringement of the right of distribution, it must nonetheless be proven, to that end, that the goods concerned are actually intended to be distributed to the public without the rightholder's consent, inter alia by their being offered for sale in a Member State where the work at issue is protected (see, by analogy, judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraphs 29 and 32 and the case-law cited). 28 In the case in the main proceedings, Mr Syed was storing goods bearing copyrighted motifs and was selling -- without the rightholder's consent -- identical goods in a shop. 29 It must be established whether such storage can be considered to be an act prior to a sale which may constitute an infringement of the exclusive distribution right, as defined in Article 4(1) of Directive 2001/29. 30 In that regard, it should be noted that the storage of goods bearing copyrighted motifs may be considered such an act if it is established that those goods are actually intended to be sold to the public without the rightholder's authorisation. 31 In this respect, the fact that a person, who sells in a shop goods bearing copyrighted motifs without the rightholder's authorisation, stores goods which are identical may be an indication that the stored goods are also intended to be sold in that shop and, accordingly, that that storage may constitute an act prior to a sale being made, which is liable to infringe that rightholder's distribution right. 32 However, it cannot be inferred from the mere fact that the stored goods and the goods sold in the person's shop are identical that the storage constitutes an act carried out with the aim of making a sale on the territory of the Member State in which those goods are protected by copyright. 33 It cannot be excluded that all or part of the goods stored in circumstances such as those in the main proceedings are not intended to be sold on the territory of the Member State in which the motif displayed on the goods is protected, even when those goods are identical to those which are offered for sale in the retailer's shop. 34 In such a situation, if an approach such as that outlined in paragraph 32 of the present judgment were adopted, that would lead to the actual purpose of the goods considered not being taken into account and to all the stored goods being treated identically, although they may, in principle, be intended for different purposes. 35 Such an approach would thus result in extending the protection conferred by the exclusive distribution right beyond the framework established by EU law. 36 Therefore, it is for the referring court to determine, in the light of the evidence available to it, whether all of the stored goods identical to those sold in the shop at issue, or only some of them, were intended to be marketed in that shop. 37 In that regard, the Court considers it useful to provide the following guidance. 38 As regards the determination of the purpose of the goods considered, account must be taken of all the factors which may demonstrate that the goods concerned are stored with a view to their being sold, without the rightholder's consent, on the territory of the Member State where the motifs displayed on the goods are protected by copyright. 39 Although, among those factors, the distance between the storage facility and the place of sale may constitute evidence that can be used in seeking to establish that the goods concerned are intended to be sold in that place of sale, that evidence cannot, on its own, be decisive. It may, on the other hand, be taken into account in a concrete analysis of all the factors likely to be relevant, such as, for example, 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. 40 In the light of all the foregoing considerations, the answer to the questions referred is that Article 4(1) of Directive 2001/29 must be interpreted as meaning that 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, as defined by that provision, when that retailer offers for sale, without the authorisation of the copyright holder, goods identical to those which he is storing, provided that the stored goods are actually intended for sale on the territory of the Member State in which that motif is protected. The distance between the place of storage and the place of sale cannot, on its own, be a decisive element in determining whether the stored goods are intended for sale on the territory of that Member State. Costs 41 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fourth Chamber) hereby rules: Article 4(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 must be interpreted as meaning that 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, as defined by that provision, when that retailer offers for sale, without the authorisation of the copyright holder, goods identical to those which he is storing, provided that the stored goods are actually intended for sale on the territory of the Member State in which that motif is protected. The distance between the place of storage and the place of sale cannot, on its own, be a decisive element in determining whether the stored goods are intended for sale on the territory of that Member State. [Signatures]

L'Oréal v eBay (2011)

In a decision that will come as a relief for brand owners, the European Court of Justice has found that eBay can be held to account for infringing activity taking place on its online marketplace, after L'Oréal brought proceedings against eBay and a number of its users for trade mark infringement for the sale of infringing and counterfeit products on eBay's online auction site (L'Oréal v eBay, C-324/09). In a decision that will come as a relief for brand owners, the European Court of Justice (ECJ) has found that eBay can be held to account for infringing activity taking place on its online marketplace (L'Oréal v eBay, C-324/09). ECJ referral L'Oréal has a closed selective distribution network in place across Europe within which authorised distributors are restrained from supplying products to other distributors. Sellers and buyers on eBay have to accept eBay's online market user agreement, one term of which is a prohibition on selling counterfeit items and infringing trade mark rights. In some circumstances, eBay assists sellers to enhance their offerings and may also advertise some of the products using search engines to trigger the display of adverts. L'Oréal brought proceedings against eBay and a number of its users for trade mark infringement for the sale of infringing and counterfeit products on eBay's online auction site (see News brief "Protecting trade marks: because they're worth it", www.practicallaw.com/4-386-3102; and box "Protecting trade mark use"). The High Court referred a number of questions to the ECJ, including whether eBay: Could be liable for trade mark infringement as a joint tortfeasor through the sale of infringing products by its users. Could be liable for infringement through the use of sponsored links on third party search engines and its own site insofar as they led people to postings for infringing products. Had a defence under Article 14 of the E-Commerce Directive (2000/31/EC) (Article 14) for liability for information it (as an internet service provider (ISP)) merely "hosts" on behalf of recipients of its service. Could, nevertheless, be prevented under Article 11 of the Intellectual Property Rights Enforcement Directive (2004/48/EC) (Article 11) from selling infringing goods on its site, even if there was no infringement by eBay itself. The decision The ECJ held that eBay could be injuncted as an intermediary and also in relation to past, as well as future, infringements in order to fulfil the requirements of Article 11. It also found that eBay could not benefit from the Article 14 defence. This defence is confined to merely technical and automatic processing of data, where there is no actual knowledge of unlawful activity or information. The ECJ found that for an ISP to be denied entitlement to the Article 14 defence, it is sufficient for it to have been aware of circumstances on the basis of which a diligent economic operator should have identified the unlawful activity in question, and acted in accordance with Article 14(1)(b) (expeditious removal of such information from the site). The online marketplace operator's own investigations, which revealed unlawful material or where it was notified of the existence of such activity or information, should normally trigger a "take-down" of the offending material from the site, and any such notification should be a factor of which the national court should take account when determining whether a diligent operator should have identified the unlawful nature of the material. The ECJ also followed the Google references brought in 2010 (C-236/08 - C-238/08) (see also Exclusively online article "Google AdWords: liability shifts to advertisers", www.practicallaw.com/8-501-8166) by finding that: Where advertising does not enable the user to ascertain whether the goods concerned originate from an official source, trade mark rights can be asserted where trade marks are used as keywords to trigger results to internet searches. Simply allowing the sale of trade-marked goods by reference to those trade marks on the online marketplace site does not involve "use" of the trade marks in question by the operator of the site. Importantly, the ECJ found that where goods were being sold through eBay by suppliers located outside the EEA, which had not previously been put on the market in the EEA with the trade mark owner's consent, the owner could enforce its trade mark rights against the seller, as it would have been able to do with a "conventionally" marketed parallel import. The owner's trade mark rights were not exhausted as long as the webpage in question was targeted at consumers within the EEA market. This was a matter of fact for the national court to decide, taking into account, for example, the language of the webpage or currencies accepted in payment, and, as specified by the ECJ, the geographic areas to which the seller would dispatch the product. Since the eBay website had the address www.ebay.co.uk, the ECJ thought this conclusive, in the absence of evidence to the contrary, that it was targeted at consumers in the territory covered by the national and Community trade marks relied on in the case (that is, the UK). Implications The decision means that: Online marketplace providers and other ISPs can no longer hide behind the "hosting" defence/exception to liability provided by Article 14 if they have played an active role in the promotion or sale of the trade-marked goods, or gained knowledge of facts or circumstances that should have put them on notice that the offers for sale were unlawful, and they failed to act expeditiously. Injunctions against future, as well as past, infringing activity on online marketplaces will now be available for brand owners. Although the UK has not adopted specific rules to implement Article 11 in full (in relation to the ability to apply for an injunction against intermediaries whose services are used to infringe an intellectual property right), the High Court nevertheless will have to abide by the full text of Article 11 when granting an injunction and can injunct intermediaries such as marketplace operators. The injunctions must be "effective, proportionate and dissuasive".

Denmark: Infopaq-case finally decided after eight years

In a recent judgment, following the preliminary Infopaq-rulings of the European Court of Justice, the Danish Supreme Court ruled that extracts of newspaper articles comprising no more than 11 words can be works protected by copyright. The use of extracts that are the results of a process of data capture undertaken by the media analysis company Infopaq International A/S (now Infomedia) constitutes copyright infringement, unless prior consent from right holders has been obtained. The judgement of the Danish Supreme Court is the outcome of an eight-year dispute between Infopaq and Danske Dagblades Forening (Danish Daily Newspapers Association). The core of the dispute concerned Infopaq's right to scan and print extracts of newspapers with the purpose of providing abstracts of newsfeed to their customers. Infopaq scanned articles from newspapers in order to perform electronic searches and to print short text extracts of 11 words - one search word plus five words prior and five words post without asking permission from right holders. The process of data capture was divided into four parts; the creation of so called TIFF files, the transformation into text files, the data storage and the printing of text files. The purpose of this process was to ease searches and to be able to find relevant articles quickly. The Supreme Court asked the European Court of Justice twice (Infopaq I and Infopaq II) for a prejudicial decision on a number of questions which can be narrowed down to the following two matters: - Are acts of reproductions of 11 words of articles reproductions that can be protected by the exclusive copyrights of the right holders as set out in article 2 of the EU Copyright Directive ('Infosoc Directive')? - Is Infopac's process of data capture an act of temporary and transient reproduction as set out in article 5 of the Infosoc Directive and as such exempted from the exclusive rights of the right holders according to article 2? The ECJ answered in its ruling that the data capture process, where 11 words are stored on a computer memory and abstracts are printed, can constitute partial reproductions that are protected by exclusive copyrights as set out in Article 2 of the Infosoc Directive, provided that the 11 words in themselves are works that are products of the authors' own intellectual creations. The ECJ considers that the printing of the text files is an act that is not covered by an exemptions in article 5 and thus requires consent from relevant right holders. However, the other three parts of the data capture process are acts that do fulfil the requirements of article 5(1), even though the acts involve human intervention: they are transient and an integral and essential part of a technological process with the sole purpose to enable a lawful use, and have no independent economic significance. Based on these prejudicial answers the Supreme Court handed down its final ruling in favour of Danske Dagblades Forening, arguing that the process of data capture occasionally involves abstracts of texts that are protected by copyright. Since the printing of 11 words does not fulfil the requirement of transience, the data capture process is not an action covered by the exemption in Article 5(1) of the Infosoc Directive. With this dispute Infopaq wanted to challenge the competing company Infomedia, which is owned by concerns of Danish newspapers. In 2005 Infopaq moved its manufacturing activities to Sweden and later assigned all Danish activities to Infomedia. It is noteworthy that in a similar dispute in Sweden, Stockholm District Court in 2008, was decided in favour of Infopaq.

International level

Key instruments Berne Convention WIPO Internet Treaties Bilateral agreements (increasing importance)

• Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others,

Johan Deckmyn and Vrijheidsfonds VZW vs Helena Vandersteen, Christiane Vandersteen, Liliana Vandersteen, Isabelle Vandersteen, Rita Dupont, Amoras II CVOH and WPG Uitgevers België is a preliminary ruling by the European Court of Justice, requested by the Court of Appeal (Dutch: Hof van Beroep) of Brussels (Belgium). The reference was made in a case of Vlaams Belang politician Johan Deckmyn who had copied a cover of Spike and Suzy (Dutch: Suske en Wiske), in which he had positioned Daniël Termont, the mayor of Ghent. The rights holders of the comic had sued Deckmyn for copyright infringement. Because the interpretation of EU law was involved in the case, the Belgian court made the reference. The reference concerns what conditions must be met for a derivative work to be considered a parody, which may be allowed according to EU law within the Copyright Directive. While the European Court of Justice has not announced its decision, its advocate general has given his (advisory) opinion on 22 May 2014 in which he held that the concept "parody" must be interpreted autonomously within the Union and that parody required a certain form of mocking and originality. In his opinion, much freedom in interpretation is given to the individual countries. History On 9 January 2011, during the New Year's reception of the city of Ghent, the Flemish nationalist political party Vlaams Belang handed out 2000 calendars with a cover largely copied from the cover of the 1961 Spike and Suzy comic De Wilde Weldoener (the Wild Benefactor). In the derivative image, money was distributed by Daniël Termont, the mayor of Ghent, whose image replaced that of Lambic, the original character.[1] The persons collecting the money had dark-coloured skin and were wearing scarfs.[2] Vlaams Belang politician Deckmyn said he wanted to highlight that in Ghent tax payer's money was mainly channelled to non-Ghent people, reducing the quality of life in the city as a whole. He indicated that "a child could see it was a parody" of the original Spike and Suzy cover.[3] The publisher of Spike and Suzy, WPG Uitgevers, said there had been no contact regarding the cover with them, and that no permission had been given; they dissociated themselves from the text and said that in their opinion the cover was "beyond parody": Willy Vandersteen, the author of the comic, had written in his will that his comics could never be used for political purposes.[3] Belgian court cases The Civil Court of the Court of First Instance of Brussels ruled on 17 February in a preliminary injunction on the action that VanderSteen c.s. (the five heirs of Willy VanderSteen and the publishers) had started against Deckmyn and Vrijheidsfonds. The court held that the calendars infringed the Spike and Suzy copyright and that the parody exception did not apply. The vzw Vrijheidsfonds (the association collecting gifts for Vlaams Belang) and Deckmyn were not to distribute the calendars.[4] Both defendants (Deckmyn, case 2011/AR/914 and Vrijheidsfonds, case 2011/AR/915) appealed the verdict to the Court of Appeal in Brussels. In its preliminary decision the 8th Chamber of the Court merged both cases, and ruled that the calendar depicted a discriminating message.[2] It considered that the parody exception existed in Belgian law (copyright law of 1994, Article 22.1.6) and that the EU Infosoc directive allowed such a parody exception (Article 2.5.3.k) and had not explicitly left the definition of parody to national law.[2] The concept of parody had furthermore not been explained by the European Court of Justice, and the court therefore decided to ask three questions of the European court: Is the concept of "parody" an independent concept in European Union law? If so, which of four suggested characteristics of parody have to be met to determine if a work is a parody? Are there additional requirements? The court stayed proceedings while awaiting the answer of the EU court.[2] Court of Justice of the European Union Besides the parties in the conflict, the European Commission and the Kingdom of Belgium also opined, either in writing or during the hearing on 7 January 2014.[5] The Advocate General gave his opinion on 22 May 2014, while the court had not ruled as of July 2014. Opinion of the Advocate General The opinion of the Advocate General of the European Court of Justice was delivered on 22 May 2014. He agreed with the Court of Appeal: regarding the first question, the term "parody" is an independent concept, as its definition was not explicitly left to the national law, although there may be a "wide margin of interpretation" left to individual countries. Court Ruling The court's decision was published on 3 September 2014.[6] The court largely followed the position of the Advocate-General: regarding the first question, the term "parody" is an independent concept, as its definition was not explicitly left to the national law, although there may be a "wide margin of interpretation" left to individual countries. The Advocate General discussed the last two question together and argued that while exceptions to a general rule in EU law should generally be interpreted narrowly, in the exceptions under 2.5.3 a wide margin of interpretation was given to the individual member states and they should give in such a case due regard to evaluation of the fundamental rights of the European Union.[5] He suggested that for a work to be considered a parody, it should evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour and mockery.[7]

GS Media v Sanoma

Leaked pictures to be published by Playboy Geen Stijl provided link to zip file with pictures Litigation ensued before Dutch courts Supreme Court: unclear how linking to source freely accessible online, but which communicates to the public without the consent of the copyright holder, should be qualified Is it a communication to a 'new public'?

• Lucasfilm, [2011]

Lucasfilm Limited v Ainsworth was a 2011 court ruling by the Supreme Court of the United Kingdom.[1][2] The case concerned an intellectual property dispute over the production of Lucasfilm's Stormtrooper costumes by model maker Andrew Ainsworth.[3] Mr Ainsworth argued that the helmets, which he continues to manufacture and sell, were functional props covered only by design right legislation, as opposed to Lucasfilm's assertion that they were sculptures or art which fall under copyright law.[4] Design right protection is retained for 15 or 10 years, copyright protection can last considerably longer.[5] Case background The Stormtrooper character first appeared in the film Star Wars Episode IV: A New Hope. The character was conceived by George Lucas, designed by artist Ralph McQuarrie, sculpted by from Liz Moore[6] and Brian Muir,[7] and finally molded from the existing designs by Andrew Ainsworth. Before the case came to court, Ainsworth had sold replica Stormtrooper outfits online for many years causing Lucasfilm to sue for infringement of copyright.[8][4] Ainsworth did not defend the 2006 case in the US courts, and the United States District Court for the Central District of California gave summary judgement in favour of Lucasfilm, awarding a USD $20 million compensation.[9] In the English courts, Lucasfilm was represented by Michael Bloch QC and Jonathan Sumption QC.[10] Court ruling The Supreme Court ruled that the Stormtrooper helmets could not be considered a sculpture for the purposes of the Copyright, Designs and Patents Act 1988. On the issue of the justiciability of a foreign copyright claim, the court ruled that providing that there is in personam jurisdiction over a defendant, an English court does have jurisdiction in this area. On this point, the case was distinguished from British South Africa v Companhia de Mocambique,[11] that expressed the general principle that English courts have no jurisdiction to entertain an action to determine title, where claims applied to foreign intellectual property rights.[10] As part of their conclusions on the justiciability question, Lord Walker and Lord Collins stated:[12] " We have come to the firm conclusion that, in the case of a claim for infringement of copyright of the present kind, the claim is one over which the English court has jurisdiction, provided that there is a basis for in personam jurisdiction over the defendant, or, to put it differently, the claim is justiciable. It is clear that much of the underpinning of the Moçambique rule and the decision in Potter v Broken Hill Pty Co Ltd [13] has been eroded. All that is left of the Moçambique rule (except to the extent that it is modified by the Brussels I Regulation) is that there is no jurisdiction in proceedings for infringement of rights in foreign land where the proceedings are "principally concerned with a question of the title, or the right to possession, of that property".[2]:at [106] " They went on further to state: " The basis for what remains of the rule was said by the House of Lords in the Moçambique case to be that controversies should be decided in the country of the situs of the property because the right of granting it was vested in "the ruler of the country" and in the Hesperides case to be the maintenance of comity and the avoidance of conflict with foreign jurisdictions. It is possible to see how the rationale of the Moçambique rule can be applied to patents, at any rate where questions of validity are involved.[2]:at [107]

UsedSoft (2012): background

Oracle SW available for download from website Download + user licence 1 licence x 25 users "With the payment for services you receive, exclusively for your internal business purposes, for an unlimited period a non-exclusive non-transferable user right free of charge for everything that Oracle develops and makes available to you on the basis of this agreement" UsedSoft markets used SW licences Licences acquired from Oracle customers UsedSoft customers not yet in possession of Oracle SW, first acquire licence and then download SW If additional licences, SW copied in users' workstations Article 4(2) of the Software Directive is to be interpreted in the sense that the right of distribution over the copy of a computer program is exhausted following the grant of a licence if this can be considered tantamount to a sale, despite the different contractual qualification given by the parties. (Confirmed in Microsoft - does not extend to back-up copies)

Primary and secondary infringement

Primary infringement (ss 17-21 CDPA) = direct making of an act restricted by copyright Unauthorized reproduction, distribution, rental/lending, performance/showing/playing, communication/making available to the public, adaptation Secondary infringement (ss 22-26 CDPA) = liability for assisting/facilitating infringement Importing infringing copy Possessing or dealing with infringing copies Permitting use of premises for infringing performance Provision of apparatus for infringing performances

Originality as substantiality?

Substantial taking (s.16(3) CDPA) Test set out by Lord Millett in Designer Guild "Once the judge has found that the defendants' design incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work, as I have already pointed out. The pirated part is considered on its own ..."

Scarlet v SABAM (2011) and SABAM v Netlog (2012)

The CJEU's ruling in the Scarlet v. SABAM case (C 70/10) is still fresh in our memories: court injunctions to install global and preventative filtering systems with a view to preventing copyright infringements are precluded. SABAM asked again for the same measures in the framework of the SABAM v. Netlog litigation. Again, the Belgian court referred the question to the CJEU for a preliminary ruling. Again, the CJEU repeated mutatis mutandis its reasoning and reached the same conclusion (C 360/10). Bis repetetita placent? Not exactly: whereas Scarlet is an ISP, Netlog is a Facebook-like online social network. This brings along several factual differences which could have had consequences as regards the application of the law. On the one hand, ISPs transmit information in communication networks and provide access to these networks. They do no not store information (unless temporarily for transmission efficiency only) and are "mere conduits" as regulated by article 12 of the E-Commerce Directive 2000/31/EC. On the other hand, as stated in §27 of the commented decision, Netlog is a hosting service within the meaning of article 14 of Directive 2000/31 in that it owns a social networking platform and stores information provided by the users on its servers. From a technical perspective, filtering communications (data transmissions) in a network is very different from scanning one's own servers content (data storage)... However, article 15 of Directive 2000/31/EC, which provides for a prohibition to impose a general obligation on providers to monitor the information which they transmit or store, does not make any distinction between ISPs and hosting services providers. Likewise, the CJEU does not seem to have taken the technical distinction into consideration, and has therefore issued a quasi-identical decision. The similitude between the two decisions is striking, as the whole part outlining the considerations of the Court has been literally copy-pasted from the Scarlet v. SABAM decision. So what can be said about this new decision that has not already been commented as regards Scarlet v. SABAM? Not much really, except the factual difference underlined above... The injunction sought is to order Netlog to introduce, for all its customers, in abstracto and as a preventive measure, at its own cost and for an unlimited period, a system for filtering most of the information stored on its servers in order to identify files containing works in respect of which SABAM claims to hold rights, and to block the exchange of such files. The injunction is claimed on the basis of article 8(3) of the InfoSoc Directive 2001/29/EC and article 11 of the Enforcement Directive 2004/48/EC, which provide the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe IP rights. Both Directives provide however that they do not affect the provisions relating to liability (articles 12 to 15) in Directive 2000/31/EC. After noticing that the injunction sought would require the hosting service provider to carry out general monitoring, the CJEU concludes that it is prohibited by article 15(1) of the Directive 2000/31/EC. Like in the Scarlet v. SABAM case, instead of limiting its reasoning to this mere application of the E-Commerce Directive, the CJEU further anchors its ruling on a balance to be stricken between several applicable fundamental rights. Citing case C-275 Promusicae, it repeats that the protection of intellectual property must be balanced against the protection of the fundamental rights of individuals which would be affected by the contemplated preventive measures. According to the CJEU, the hosting service provider's freedom to conduct business would be impaired (article 16 of the Charter of Fundamental Rights of the European Union). The injunction would indeed require to install a complicated and costly, permanent computer system at its own expense, hurdling the provider to provide its services. The CJEU also judges that users of the services would see their rights and freedoms undermined as well, as the filtering system would affect their right to privacy and the freedom to receive or impart information.

• Nils Svensson and Others v Retriever Sverige AB,

The application arose in the context of Article 3(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. Article 3(1) requires Member States to provide authors with the exclusive right to authorise or prohibit any communication to the public of their works. The applicants, all journalists, wrote press articles published on a freely accessible basis on the website of the Göteborgs-Posten newspaper. Retriever Sverige provided a news-monitoring service which supplied hyperlinks to articles on other websites, including on Göteborgs-Posten. The applicants brought an action against R before the Stockholms tingsrätt (Stockholm District Court) in order to obtain compensation on the ground that R had made use, without their authorisation, of certain articles by them, by making them available to its clients. They contended that if a client clicked on one of the links, it would not be apparent that the client had been redirected to another site to access the work. The application was rejected and the applicants appealed the decision before the Svea hovrätt (Svea Court of Appeal), which decided to stay the proceedings and to refer the matter to the Court of Justice of the European Union for a preliminary ruling. Issue (1) Whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constituted an act of communication to the public as referred to in that provision. (2) Whether Article 3(1) of Directive 2001/29 must be interpreted as precluding a Member State from giving wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision. Held (1)The owner of a website could, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site. In reaching its decision, the CJEU considered it apparent from Article 3(1) of the Directive that the concept of 'communication to the public' included two cumulative criteria: (a) The existence of an 'act of communication': this had to be construed broadly in order to ensure a high level of protection for copyright holders. It was sufficient that a work was made available to the public in such a way that the persons could access it, irrespective of whether they did so. It followed that the provision of clickable links to protected works had to be considered to be 'making available' and, therefore, an 'act of communication', within the meaning of that provision. (b) The communication of that work to a 'public': it followed that the term 'public' referred to an indeterminate number of potential recipients and implied, moreover, a fairly large number of persons, such as the users of the Retriever Sverige service. However, according to settled case-law, in order to be covered by the concept of 'communication to the public' within the meaning of Article 3(1), a communication had to be directed at a new public, that is to say, a public that was not taken into account by the copyright holders at the time the initial communication was authorised. There was no such new public in this case. As the works offered on the Göteborgs-Posten website were freely accessible, the users of Retriever Sverige's site had to be deemed to be part of the public already taken into account by the journalists at the time the publication on the Göteborgs-Posten website had been authorised. Such a finding would not be called into question by the fact that (were it to be the case) when internet users clicked on the link at issue a work appeared in such a way as to give the impression that it was appearing on the site on which that link was found, whereas in fact that work came from another site. The CJEU did specify that the situation would be different where a clickable link makes it possible for users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work originally appeared, such as the restriction of public access to the website's paying subscribers only. In that case, the users would not have been taken into account as potential public by the copyright holders when they authorised the initial communication and would be deemed to constitute a new public. (2) Article 3(1) of the Directive could not be construed as allowing Member States to give wider protection to copyright holders by laying down that the concept of communication to the public includes a wider range of activities than those referred to in that provision. The objectives of the Directive were, inter alia, to remedy legislative difference and legal uncertainty that exist in relation to copyright protection. Any other conclusion reached by the CJEU would have the effect of creating legislative differences and thus, for third parties, legal uncertainty. Comment The decision provides a useful clarification of the circumstances in which a website may be able to redirect internet users through hyperlinks to protected works. The answer will be determined by whether the protected work is already freely available online. The decision is of particular significance to English jurisprudence as it clarifies the doubts expressed by Arnold J in Paramount Home Entertainment v BSkyB [2013] EWHC 3479 as to whether the mere provision of a hyperlink amounted to a 'communication to the public' for the purpose of s.20 of the Copyright, Designs and Patents Act 1988. The question of what constitutes "freely available" for the purposes of the Article 3(1) of the Directive may in turn require further clarification.

• Stichting Brein v Ziggo BV and XS4All Internet BV

The concept 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 has been much discussed by the Court of Justice[i]. One of the most recent developments, and in my opinion the one which has the most impact in the information society, is the Case C-610/15, Sitchting Brein v. Ziggo BV and XS4ALL Internet BV. The Court decided that making available and managing on the internet a sharing platform which by means of indexation of metadata relating to protected works and the provision of a search engine allows users of that platform to locate those works and to share them in the context of a peer-to-peer network constitutes a 'communication to the public', within the meaning of Article 3(1) of Directive 2001/29/EC. The parts involved were Stichting Brein, a Netherlands foundation which safeguards the interests of copyright holders, and Ziggo and XS4ALL, internet access providers. A significant number of their subscribers use the online sharing platform The Pirate Bay, an indexer of BitTorrent files. In the context of the main proceedings, Stichting Brein requested Ziggo and XS4ALL to be ordered to block the domain names and IP addresses of the online sharing platform The Pirate Bay in order to prevent the services of those internet access providers from being used to infringe the copyright and related rights of the right-holders. REPORT THIS AD The first instance national court upheld Stichting Brein's requests. However, these were rejected on appeal, and The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and referred two preliminary questions to the Court of Justice of the European Union. With its questions The Hoge Raad der Nederlandem wanted to know, as Maciej Szpunar puts it, if the operators of indexing sites of peer-to-peer networks can be regarded as being the originators of those infringements (when the copyright infringements are committed in the context of the use of those networks), - directly liability - or, even if they are not directly liable, can an order be made blocking access to their websites - indirect liability[ii]. Regarding the first question the Court begins by stating that the concept of "communication to the public" created a right to the authors to intervene between the possible users of their work and the communication to the public which such users might contemplate making, in order to prohibit such communication. The Court also enhances the importance of the user and the deliberate nature of his intervention. In order to make an act of communication the user must intervene knowing the consequences of such action, and with the intent of providing access to a protected work. REPORT THIS AD The Court considers that any act by which a user, with full knowledge of the relevant facts, provides its clients with access to protected works is liable to constitute an 'act of communication' for the purposes of Article 3(1) of Directive 2001/29[iii]. Therefore by allowing users to provide protected works in their peer-to-peer platform, and by creating it and managing it, the administrators of The Pirate Bay, were providing access to the protected works. It was clear to the CJEU that these providers were (and are) playing an essential role in making such works available. The Court also considered that the operators of the online sharing platform The Pirate Bay could not be considered to be making a 'mere provision' of physical facilities for enabling or making a communication, within the meaning of recital 27 of Directive 2001/29. Not only this platform facilitates the download of the protected works, but it also classifies such works and deletes the ones considered obsolete. In light of such facts it was clear to the Court that making available and managing such platform was an act of communication for the purposes of Article 3(1) of Directive 2001/29. REPORT THIS AD However the definition of "communication to the public" also demands that the protected works be in fact communicated to a "public". In order to determine if there is a "public" the Court ruled that it was necessary to know not only how many persons have access to the same work at the same time, but also how many of them have access to it in succession. In this case it was notable that many subscribers of Ziggo and XS4ALL used the online platform The Pirate Bay. It was also notable that, as we know, this platform is used by millions of people every day. Therefore, the communication is aimed at an indeterminate number of potential recipients and involves a large number of persons. Naturally the Court ruled that a communication such as the one described was indeed a communication to a public within the meaning of Article 3(1) of Directive 2001/29. But was this a "new" public? A "new" public, such as the Court defines it, is a public not taken into consideration by the copyright holders when they authorized the initial communication. REPORT THIS AD The Court decided that not only there was an "act a communication" and a "public" but also a "new" public, for the copyright holders did not authorized such access to their works, nor was The Pirate Bay unware of that fact. The fact that such activities were carried out with the purpose of obtaining a profit were also taken into consideration by the Court. Given these considerations, CJEU ruled that making available and managing an online sharing platform, such as the one described, constitutes a 'communication to the public', within the meaning of Article 3(1) of Directive 2001/29. While determining what constitutes a "communication to the public" is an arduous and very complex task, the Court has been giving national judges new instruments to complete such task. Communication to the public involves necessarily an act of communication to a new audience. REPORT THIS AD Then, we may conclude that a "communication to the public" requires three cumulative requirements to be met: the existence of an act of communication, a public, and a new public, i.e. an audience not considered by the copyright holder when authorizing the utilization of the protected works. This case is relevant not only because it has deepened this concept, but because it establishes for the first time that file sharing sites are responsible for copyright infringement. The impact of this decision is clear: copyright holders will start asking internet service providers to block access to platforms that allow the sharing of copyright-protected files. Although requests of this nature have already been made in countries like Portugal, Sweden, Germany, Italy and Denmark, this decision will undoubtedly have an impact that it is not yet possible to measure.

Article 4(2) InfoSoc Directive

The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.

5 key principles (recap)

The notion of 'intermediary' is broad Injunctions can be aimed at repressing existing infringement and preventing future infringements Injunctions must comply with various legislative sources and principles Blocking injunctions are allowed under EU law An intermediary can be directly (primarily) liable for third-party infringements

Exclusions

Trivial information Little impact: courts reluctant to say information is trivial In privacy cases, virtually no triviality In commercial settings, any information potentially valuable not trivial Vague information Ratio is not to place unjustifiable burden on recipient (De Maudsley v Palumbo) Duty of identification also required for action to proceed (abuse of process) Information in the public domain (NB: not the same thing as in copyright!!) Springboard doctrine (Seager): not to use information to gain competitive advantage 4. Immoral ...

Intermediaries and safe harbours (recap)(Ecommerce Directive, derived from US DMCA)

Types of ISPs Mere conduit (Art 12): mere transmission or access, eg BT, Virgin, EE, BSkyB Caching (Art 13): automatic temporary storage of information, eg Google Search Hosting (Art 14): storage of information at the request of users of service, eg YouTube Safe harbours Number of conditions to be exempted from liability, including to act expeditiously to remove or disable access to allegedly infringing content upon obtaining knowledge or awareness of illegal activity or information

Proposed directive on copyright in the DSM: value gap Recitals 38-39+Article 13 (Original Commission's proposal)

Where ISPs store and provide access to the public to copyright works uploaded by their users thereby performing an act of communication to the public They are obliged to conclude licensing agreements with rightholders, unless they are eligible for Ecommerce Directive safe harbour (Article 14) should take appropriate and proportionate measures, such as implementing effective technologies (also where no obligation to conclude licensing agreements)

Hyde Park Residence v Yelland

it is not seen as necessary "for the court to put itself in the shoes of the infringer of the copyright". Instead, a more objective test is used, to avoid providing "any encouragement to the notion that all that is required is for the user to have a sincere belief, however misguided, that he or she is criticising a work or reporting current affairs".[7]

Section 52 CDPA

"(1)This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by— (a)making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work, and (b)marketing such articles, in the United Kingdom or elsewhere. (2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work. (3)Where only part of an artistic work is exploited as mentioned in subsection (1), subsection (2) applies only in relation to that part.

Elements of the action

"(a) that the information was of a confidential nature, (b) that it was communicated in circumstances importing an obligation of confidence and (c) that there was an unauthorised use of the information" Per Megarry J, Coco v Clark

Why is that? Recital 59 InfoSoc Directive (recap)

"In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network ... The conditions and modalities relating to such injunctions should be left to the national law of the Member States." "Best placed" Identity of primary infringers may be difficult to determine (Unofficial reason) ISPs have usually deeper pockets than individual infringers

No general obligation to monitor (Art 15(1))

"Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity."

Subject-matter categorisation

"The [InfoSoc] Directive envisages the protection of all intellectual creations by the same reproduction right and distinctions between literary and artistic works are no longer justified." Per Judge Birss QC, Abraham Moon (2012) → No longer different rights attached to different works? "In the light of a number of recent judgments of the CJEU, it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) [CDPA] and defined elsewhere in that Act." Per Arnold J, SAS v WPL (2013) → Towards open-ended subject-matter categorisation?

Subject-matter categorization to disappear?

"[C]opyright within the meaning of Directive 2001/29 is liable to apply only in relation to a subject-matter which is original in the sense that it is its author's own intellectual creation ... Consequently, the graphic user interface can, as a work, be protected by copyright if it is its author's own intellectual creation." Bezpečnostní softwarová asociace, [45] And now even more so, post-Levola Hengelo

Originality post-Infopaq

"[T]he test of quality has been re-stated but for present purposes not significantly altered by Infopaq ... [yet] the full implications of the decision have not yet been worked out " Per Proudman J, NLA v Meltwater (2010) "[C]opyright may subsist in a photograph if it is the author's own 'intellectual creation'" Per Judge Birss QC, Temple Island v New English Teas (2012) "For an artistic work to be original it must have been produced as the result of independent skill and labour by the artist ... It is only where there is copying of the originality of the artist that there can be infringement." Per District Judge Clarke, Taylor v Maguire (2013)

Moral rights under French law

"perpétuel, inaliénable et imprescriptible" Last forever (unlike monistic continental traditions, eg Germany, Austria) Non-assignable and non-waivable → Personal rights of the author Can be enforced by author, estate (or even State, eg Italy) Protection is automatic Scope is broad: "L'auteur jouit du droit au respect de son nom, de sa qualité et de son oeuvre."

Merchandising Corporation of America v Harpbond

where facial makeup was held to be similar to sand paintings, lacking sufficient permanence. This English case was very famous as it concerned Adam Ant and his choice of self styled facial makeup for his "Prince Charming" look. He argued that there was sufficient copyright in the work and a poster company had abused his rights by using it without his permission. This case is particularly important in this situation as Lawton LJ in this case held that skin cannot be the surface of a painting in the way that a canvas can. The discussion of permanence boils down to the fact that with current medical procedures tattoos can be removed with lasers and the rule on affixing and permanence therefore will not be met. Tattoos that are on areas prone to heavy use such as hands and feet which lose the most skin are also akin to be removed naturally and hand tattoos especially on the palm will naturally disappear within 6 months to a year.

Fair dealing

'Dealing' = use of the work (not ££!) Except quotation, dealing must be for one of the purposes specified by CDPA It doesn't matter if dealing fair per se (cf US fair use) Objective assessment (Hyde Park v Yelland) 'Fair': a matter of degree and impression developed through case law (but public interest should prevail over strict reliance on precedents)

Berne Convention: Article 2

(1) The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. (2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.

EU harmonization

(Very limited international harmonization) Design Directive (Directive 98/71/EC): a 'limited approximation' Requirements for protection Rights of design owner Duration of protection Allows MSs to protect designs also through other legal regimes MSs prevented from preventing copyright (so called 'cumulation': Article 17) Community Design Regulation (Council Regulation 6/2002) EU-wide registration system administered by EUIPO 2 types of design rights: Registered (25 years from registration) Unregistered (3 years from when design first made available) Rationale: short-term protection for industries for which registration not convenient

Article 3 InfoSoc Directive

1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: [...] (d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite. 3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this Article.

A non-debate

2004 Commission Staff WP: "The protection for moral rights has not been harmonised in the Community" Why? "No evidence exists in the digital environment either that the current state of affairs does affect the good functioning of the Internal Market." Moral rights seen as one of those "thorny issues that have long divided the approaches of countries such as the UK from those of France and Germany", for which an EU intervention would be possibly required in the medium term (Bently, 2014, p 116)

Key concepts

A 'work' (idea/expression dichotomy) By an 'author' Sufficiently 'original' (UK) a work of the 'right kind' (UK) Fixed in a tangible medium

UPC Telekabel v Constantin Film (2014)

A website was allowing the downloading and streaming of films without permission of two film companies, Constantin Film and Wega. The companies referred the matter to the courts in an attempt to obtain an injunction that would require UPC Telekabel (UPC), an internet service provider, to block access to their films to its users. The Commercial Court in Austria ruled in favor of the film companies and required UPC to block the content. UPC appealed to the Austrian Higher Regional Court, which partially reversed, but only as to the means by which UPC had to block the aforementioned content. UPC then appealed to the Supreme Court of Austria, which stayed the proceedings and referred various questions of law to the Court of Justice of the European Union. Decision Overview The Court of Justice of the European Union first examined the question of whether, under Article 8(3) of the Directive, "a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is using the services of the internet service provider of the persons accessing that subject-matter, which is to be regarded as an intermediary." UPC argued that it could not be considered an intermediary for purposes of this provision. The Court disagreed, finding that an Internet service provider that allows users to access copyrighted material on its website is considered an intermediary under the Directive and that no contractual relationship between the intermediary and those whose copyright the intermediary is violating need exist. In light of the analysis of the first question, a second question was not addressed because it would only have been applicable if the court had found UPC was not an intermediary. Next, the Court turned to a third question, which asked "whether the fundamental rights recognised by EU law must be interpreted as precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures." The Court noted that this question implicated the Charter of Fundamental Rights of the European Union and that when fundamental rights are at issue, the Court must strike a balance between the rights protected and the legal order of the European Union. National law must then be interpreted in accordance with the directives of the European Union and must not interfere with fundamental rights. The Court found that an injunction in this case would not infringe upon the fundamental right to conduct business because the injunction in the case at bar would allow UPC to decide upon the measure to put in place to protect against this type of copyright infringement. The injunction would also allow UPC to avoid liability by showing that it has taken all the necessary precautions. The Court also found that the issuance of an injunction would not infringe on the rights to intellectual property, because this right is not absolutely protected and must be balanced against the public interest. In conclusion, the Court held "the fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish."

EU Charter of Fundamental Rights

Art 17: property (intellectual property) Art 16: freedom to conduct a business (intermediary) Art 17: freedom of information (users)

The case of private information

Article 8 ECHR: Right to respect for private and family life "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others." Article 10 ECHR: Freedom of expression "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence ..." For UK since Human Rights Act 1998

1) A 'work' (idea/expression dichotomy)

Article 9(2) TRIPS: "Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such." §102(b) US Copyright Act: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Not just about ideas

• Levola Hengelo

As announced earlier today, the Court of Justice of the European Union (CJEU) has finally issued its (short) judgment in Levola Hengelo, C-310/17, holding that copyright cannot vest in the taste of a food product (a spreadable cheese in the background Dutch proceedings). The case is important for a number of reasons, and especially because it is probably the first time that the CJEU has been given directly the chance to tackle the notion of 'work' under the InfoSoc Directive (but, I would say, the overall EU copyright acquis). Let's see how the CJEU reasoned. 'Work' under the InfoSoc Directive The Court started by noting that the InfoSoc Directive harmonizes a number of economic rights and related exceptions and limitations, which concern the exploitation of 'works'. Yet, that piece of legislation does not define what is to be intended as 'work', nor does it make any reference to the laws of individual Member States. This means, unsurprisingly, that the notion of 'work' is an autonomous concept of EU law, that is to be given an autonomous and uniform interpretation throughout the EU. With particular regard to the taste of a food product, this means that copyright protection may only vest in said subject matter if it can be regarded as a 'work' in a EU sense. According to the CJEU, this means that two cumulative criteria must be satisfied: The subject matter concerned must be original in the sense clarified in Infopaq and its progeny; The subject matter must be a 'work' This part of the judgment appears rather tautological as the CJEU suggests that a 'work' is a 'work'. But that is not all: the Court also appears to (oddly) suggest that only something that is original is a work, as if originality was a requirement for a certain subject matter to be classified as a work: only something which is the expression of the author's own intellectual creation may be classified as a 'work' within the meaning of Directive 2001/29 'Work' under Berne Moving on from this headache-inducing part of the judgment, having clarified (?) what a work is under the InfoSoc Directive, the CJEU turned to Article 2(1) of the Berne Convention. By adopting the InfoSoc Directive, the EU implemented into the EU legal order the WIPO Internet Treaties and Article 1(4) WCT requires compliance with Articles 1 to 21 of Berne. This means that: the notion of 'work' must be intended having regard to Article 2(1) of Berne. the idea/expression dichotomy, as found in Articles 2 WCT and 9(2) TRIPs must be also taken into account. According to the CJEU, it follows from these two considerations (?) that for there to be a 'work' as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form. And even if the Court did not refer (as instead the AG had done) to the Sieckmann criteria in relation to the graphic representation requirement in trade mark law, it appeared to have them very much in mind when it used substantially the same language of that ruling in holding that: first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity -- given that it is detrimental to legal certainty -- in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner. All this served the Court to conclude that the taste of a food product cannot be identified with precision and objectivity. This would make it different from "a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression". All this appears rather questionable, especially because the Court associated such presumed 'objectivity' to the way in which one appreciates those works, rather than how they perceive them: the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed. Spreadable Kat But isn't the same be true for other types of copyright works as well? If what the Court suggests was true, then we would all like the same music, novels, and films ... According to the Court the problem also relates to the current state of scientific development, ie to the same problem occurred for trade mark registration of less conventional signs, that is "to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind." Because of all these considerations, the taste of a food product is not a work and cannot be protected under EU copyright law (and it would seem, international copyright law). Comment Despite being a fan of the CJEU, this time I have to admit that I am not sold. And that is not because of the particular outcome of the case (which, in a way, appeared necessitated), but because of the reasoning of the court in relation to the following points: First, conflating the notions of works and originality (which the CJEU did to a certain extent, when it tried to define the notion of 'work' under EU law, and is something problematic that it had done already in cases like Infopaq, BSA, and FAPL); Secondly, deriving from the idea/expression dichotomy a requirement that a 'work' satisfies something that - let's put it bluntly - mirrors the graphic representation requirement in trade mark law, as interpreted in Sieckmann; Thirdly, suggesting that copyright protection is subject to a requirement of 'objective' perception (and judgment). All this said, however, the judgment is important and requires closer scrutiny. There are two additional, key points that deserve attention. An EU fixation requirement First, even if the CJEU denied that [at para 40], as a matter of fact, it mandated (as the AG had done before it) a fixation requirement in EU copyright law. Reference to the need for precision and objectivity of the subject matter appears in fact to imply that some sort of fixation is present. Would it be in fact possible to have subject matter that is precise and identifiable without it being also fixed in some material form? All this raises question marks in relation to Berne, as in principle member states are free to determine whether fixation should be or not a requirement in their own copyright laws. Unconventional Kat Subject matter categorization The second point of interest, which I discuss more at length in this forthcoming book, relates to the fact that, under EU law, copyright protection under EU law arises when (1) there is an intellectual creation, that is (2) a work. The CJEU could have not stated that more clearly. The implications of all this are that the same type of subject matter is to be protected across the EU. On the one hand, this would prevent protection by means of copyright of subject matter that does not fall within the EU notion of 'work' and, on the other hand, it would prevent Member States from excluding protection for works that, instead, fall within the EU notion. In this sense, closed national systems of protectable works (as is the case in Europe of the UK, Ireland, and Austria) would unlikely be compatible with EU law. This conclusion is in fact also prompted by the following consideration: if, on the one hand, we accept that solutions like the one of the Dutch Supreme Court in Kecofa v Lancôme, ie that copyright could vest in a perfume, may not be tolerated then, on the other hand, protection could not be denied in a certain work just because it does not belong to one of the categories envisaged by a certain Member State's list of protectable works. At the time when the Dutch judgment was issued (2006) some commentators noted that disparities in the protection tout court of certain subject matter across the EU would raise, inter alia, free movement issues: Dutch law is now out of step with that of all other EU member states. Parfumeurs welcomed the Dutch ruling, believing their work to be indubitably artistic. Such thinking sits comfortably with the Romantic vision of the author as uniquely entitled to proprietorship of created works, but this paradigm has been seriously challenged in post-modern times. It also draws on an aesthetic discourse of originality which cries loudly for protection but has a tendency to forget its own debts. TRÉSOR itself owes much to two earlier perfumes: Calvin Klein's ETERNITY and Sophia Grosjman's EXCLAMATION. In addition to the philosophical difficulties, there are practical problems. It will require considerable creativity to apply certain acts of copyright infringement (e.g. distribution, making available to the public) to fragrance, whose fundamental purpose is that it will perceived not only by the wearer, but also by those in the vicinity. Furthermore, the ruling creates an unacceptable impediment to the free movement of goods within the EU. Harmonisation will be essential if the Dutch approach is maintained. The same would be true for works, possibly of a less conventional type, that are regarded as protectable in certain EU jurisdictions but not others. As a result, protection across the EU should be based on the same requirements and be subject to the same limitations.

• Stichting Brein v Ziggo BV and XS4All Internet BV

As this blog reported, on 14 June last the Court of Justice of the European Union (CJEU) issued its much-awaited judgment in Stichting Brein v Ziggo BV and XS4All Internet BV, C-610/15 (the 'Pirate Bay' case). There, the Court developed further its construction of the right of communication to the public within Article 3(1) of the InfoSoc Directive, and clarified under what conditions the operators of an unlicensed online file-sharing platform are liable for copyright infringement. The CJEU judgment builds upon the earlier Opinion of Advocate General (AG) Szpunar in the same case [reported here], yet goes beyond it. This is notably so with regard to the consideration of the subjective element (knowledge) of the operators of an online platform making available copyright content. Unlike AG Szpunar, the Court did not refer liability only to situations in which the operators of an online platform have acquired actual knowledge of third-party infringements, but also included situations of constructive knowledge ('could not be unaware') and, possibly, even more. Overall, the CJEU decision is not limited to egregious scenarios like the one of The Pirate Bay: the Court's findings are applicable to different types of online platforms, as well as operators with different degrees of knowledge of infringements committed by users of their services. In my view the judgment is expected to have substantial implications for future cases (including at the level of individual Member States), and overall prompts a broader reflection on issues such as the interplay between primary and secondary liability for copyright infringement, applicability of the safe harbour regime within the E-Commerce Directive, as well as the current EU copyright reform debate, notably the so called value gap proposal within Article 13 of the draft Directive on Copyright in the Digital Single Market. Further to a request of the International Federation of the Phonographic Industry (IFPI), I prepared a paper that would explore the possible implications of the judgment. The paper is going to be published as an article in the European Intellectual Property Review later this year. In the meantime, you can find a pre-edited version here.

Moral rights under UK law

Attribution: ss77-79 CDPA Integrity: ss80-83 CDPA False attribution: s84 CDPA Right to privacy of certain photographs and films: s85 CDPA

The 2009 decision in Case C-5/08 Infopaq

Authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their 'works' Pursuant to Article 2 Berne protection of certain subject matter presupposes that this amounts to being an 'intellectual creation' Originality standard set out for computer programs, databases and photographs, applies to any other subject matter (InfoSoc Directive same rationale) Copyright in the various parts of a work, provided that they contain elements which are the expression of the intellectual creation of the author of the work (choice, sequence, combination)

The CJEU Infopaq decision (recall)

Authors have the exclusive right to authorise or prohibit reproduction, in whole or in part, of their 'works' Pursuant to Article 2 Berne protection of certain subject matter presupposes that this amounts to being an 'intellectual creation' Originality standard set out for computer programs, databases and photographs, applies to any other subject matter (InfoSoc Directive same rationale) Copyright in the various parts of a work, provided that they contain elements which are the expression of the intellectual creation of the author of the work (choice, sequence, combination)

Underlying rationale of exceptions

Balance copyright protection with other interests/rights, eg freedom of expression and freedom to conduct a business Copyright protected as fundamental right within right to property European Convention of Human Rights and European Court of Human Rights The Pirate Bay case (2013) Ashby Donald and Others v France (2013) Charter of Fundamental Rights of the European Union and CJEU Find very interesting application in Telekabel (2014, online enforcement) Copyright as property (rightholders) Freedom to receive/impart information (internet users) Freedom to conduct a business (ISPs)

Is CJEU likely to extend UsedSoft to subject-matter other than SW?

CJEU in Nintendo (2014): "Directive 2009/24 constitutes a lex specialis in relation to Directive 2001/29 ... [T]he protection offered by Directive 2009/24 is limited to computer programs." Commission in leaked White Paper (2014): premature to address digital exhaustion Uncertainties also in the US as regards best reform options Speaking of the US: first sale doctrine and ReDigi case (2018) - no digital exhaustion Court of Appeal of Hamm (2014): no digital exhaustion under InfoSoc Directive (2014 case concerning audiobooks) District Court of Amsterdam (2014): UsedSoft principles applicable to second-hand ebooks

Types of design rights

Community registered design right Community unregistered design right National registered design right National unregistered design right (not everywhere, but case of the UK)

Main) Acts restricted by copyright - see ss16 ff CDPA

Copy the work (right of reproduction) Issue copies of the work to the public (right of distribution) Rent or lend the work to the public (rental or lending right) Perform, show or play the work in public (public performance right) Communicate the work to the public (right of communication) Make an adaptation of the work, or do any of the above acts in relation to an adaptation (right of adaptation) Authorise others to carry out any of these activities

Mere accessibility suffices

Copyright holder can sue before courts of each MS where content placed online is protected and is or has been accessible (AG Jääskinen: "multiplication of courts") CJEU rejected 'intention to target' approach Sportradar, C-173/11 (database right) Courts jurisdiction only in respect of damage caused in the territory of that MS (unlike general rule in Art 4 Brussels I Recast) Confirmed in Hejduk, C-441/13

5) (UK) A work of the 'right kind': s1(1) CDPA

Copyright is a property right which subsists in accordance with this Part in the following descriptions of work— (a) original literary, dramatic, musical or artistic works, (b) sound recordings, films or broadcasts, and (c) the typographical arrangement of published editions.

4) Sufficiently 'original'

Difficulties Concept is vague per se Differs between works of imagination and those of industrious collection UK 'Enough labour skill and/or effort' Originality as originating from the author = not copied Continental traditions France (no express legislative definition): 'la marque d'un apport intellectual' US Minimum degree of creativity (1990 US Supreme Court in Feist rejected 'sweat of the brow')

• Martin [2017] EWHC 2927

In this case Ashton Chantrielle, led by Simon Malynicz QC of 3 New Square, appeared for Ms Kogan, the Defendant/ Part 20 Claimant, and Jonathan Hill appeared for the film company Part 20 Defendants. Mr Nicholas Martin sought a declaration that he was the sole author of the screenplay for the film 'Florence Foster Jenkins' starring Meryl Streep and Hugh Grant. Julia Kogan counterclaimed that she was a co-author of the screenplay and that the Claimants and the Part 20 Defendants had infringed her copyright by producing and releasing the film. His Honour Judge Hacon found that Ms Kogan's contribution had not been enough to qualify her as a joint author of the screenplay pursuant to s10(1) of the CDPA 1988. The film therefore did not infringe any copyright owned by Ms Kogan. He also concluded that had it been necessary to consider it, the film companies' defence of estoppel would have succeeded. At the costs hearing, the Judge considered his judgment in PPL v Hagan [2016] EWHC 3076 (IPEC) on cost consequences of a successful Part 36 offer to settle on the IPEC cost caps, holding that the costs cap should be lifted in the case of claimant's Part 36 offers (normally by applying a 25% uplift to the cap), but not defendant's. He also held that a separate IPEC costs cap applied to the Part 20 claim against the film companies.

Right of integrity

Integrity under UK law in "apparently narrower terms" than Berne (Cornish et al) No reference to "any other derogatory action" A "treatment": only additions, deletions, alterations, adaptations No translations or other arrangements No protection against non-transformative uses of one's work Tidy v Natural History Museum Works out of context? Authors that do not enjoy it: s82(2) CDPA "The right to object to derogatory treatment of a work does not apply to anything done in relation to such a work by or with the authority of the copyright owner unless the author or director— (a)is identified at the time of the relevant act, or (b)has previously been identified in or on published copies of the work; and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer."

Linking and communication to the public:Do you need permission to link to copyright content?Svensson v Retriever, C-466/12

Journalists authored articles also featured on Göteborgs-Posten website, where they were freely accessible Retriever Sverige operates a website that provides hyperlinks to articles published by other websites Journalists sued Retriever, claiming that making available of hyperlinks to their articles required their own authorisation (and some cash, of course) → restricted act under Swedish equivalent of Article 3(1) InfoSoc Directive Retriever objected, arguing that it transmitted no work Cf Opinion of European Copyright Society vs ALAI Opinion If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of the InfoSoc Directive? Concept of communication to the public includes two cumulative criteria: 'act of communication' of a work → to be construed broadly communication of that work to a 'public' → undetermined number of people Requirements met here? Providing hyperlinks is act of communication: people can click and access works (mere possibility suffices, so no actual transmission of work required) Must be directed at a new public, ie public that was not taken into account by the copyright holders when they authorised the initial communication to the public → not the case if works 'freely accessible' on a website at which hyperlink is directed What does 'freely accessible' mean? Technical restrictions, eg paywall circumvention Contractual restrictions? Does it matter whether content one links to is lawful?

2) Obligation of confidence

Must be legal - not merely moral - obligation Can be licensed: Douglas v Hello! Per Lord Hoffmann: "Having paid £1m for an exclusive right it seems to me that OK! ought to be in a position to protect that right and to look to the law for redress were a third party intentionally to destroy it"

Public interest defence: Article 10 ECHR

Nature of the information Does not apply to information disclosed "merely to titillate the public" Although information that 'puts the record straight' may be potentially eligible for defence: Campbell At times consideration of effect on claimant, eg Campbell Consequences of non-disclosure, eg health and safety Type of obligation Belief of confidant (but cf defendant's state of mind) To whom information disclosed Does disclosure contribute to debate of general interest?

1) Confidential nature of the information

No particular limits as to nature Business ideas TV formats (for those, see also recent BUMP case (2017)) Genetic structure of a nectarine tree Marital secrets

Rationale of the action

No property right in information as such, but rather obligation of confidentiality (Absolute vs relative rights) Limited international harmonization Art 39 TRIPS: "In the course of ensuring effective protection against unfair competition as provided in Article 10bis of the Paris Convention (1967), Members shall protect undisclosed information ..." Directive 2016/943 (Trade Secrets Directive) - UK transposition

"in relation to": causal connection

No protection against independent creation (vs patents) Up to claimant to demonstrate derivation Up to defendant to demonstrate independent creation Red Bus case (per Judge Birss QC): "I find that the common elements between the defendants' work and the claimant's work are causally related. In other words, they have been copied ... I reject the submission that the other similar works acted as a relevant independent source for the defendants." Key precedent is Designer Guild Causal link between work and alleged infringement No need to show that derivation is from original, rather than (lawful/unlawful) copy of a work

Difficulties in online infringement cases

Not an issue if claimant and defendant established in same Member State (MS) Example: Person domiciled in UK can sue person domiciled in UK before UK court But what if the claimant and the defendant are domiciled/established in different MSs? Why are things so difficult? Copyright unregistered right Yet subject to principle of territoriality

What is a "sale"?

Notion Autonomous concept of EU law (no reference to MSs in SW Directive) Broad Agreement by which a person, in return for payment, transfers to another person his rights of ownership in an item of tangible or intangible property belonging to him Donwload + Oracle licence are inseparable from the point of view of acquirer, as they are aimed at obtaining the right to use the copy for an unlimited time, following payment of a price which is tantamount to its economic value Download of Oracle SW is a sale despite different nomen juris

Fair use: from case law to §107 US Copyright Act

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include— (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

) By an 'author': Who is an author?

Only human beings (?) Joint authorship Each of the authors contributes to the making of the work Contribution must be significant and original Work must be the result of collaboration between authors Need for some cooperation, common design, plan Respective contributions must not be distinct or separate from each other

Closed or open-ended approach?

Open-ended fair use clause US, Israel (2007), Singapore (s35 despite use of 'fair dealing') US fair use compatible with three-step test On-going campaigns to introduce US-style fair use, eg Australia (see also here) Criticism that scope is uncertain Closed lists of permissible exceptions Fair dealing approach UK, Australia, Canada EU approach: Article 5 InfoSoc Directive

Right of attribution

Right needs to be asserted to be enjoyed Does it make you think of anything that is/should be ... forbidden? Can be waived (s87 CDPA) Ghostwriting Does not apply to every subject-matter (s79(1) CDPA) computer program design of a typeface computer-generated work (this category also raises other issues, eg authorship and originality) Authors that do not enjoy it (s79(2) CDPA)

But do platforms communicate to the public also under existing law?

Right of communication to the public 'Indispensible intervention' What platforms? Rogue platforms: The Pirate Bay (C-610/15, 2017) YouTube? (Referral from Germany, 2018 - in progress)

Do platforms communicate to the public? Implications of The Pirate Bay (Ziggo, C-610/15)

Right of communication to the public 'Indispensible intervention' What platforms? Rogue platforms: The Pirate Bay (C-610/15, 2017) YouTube? (Referral from Germany, 2018 - in progress, C-682/18) Further discussion in the context of 'value gap' proposal To be tackled in W22

Do not forget that

Rights may vary depending on the type of work that is protected An example in UK is the right of adaptation: only exists for literary, dramatic and musical works Infringement (as we'll see) is the doing of any of the acts restricted by copyright without the licence of the copyright owner Based on notion of strict liability Defendant's state of mind does not matter (but cf GS Media and Ziggo) (May matter for damages though)

"substantial part" under traditional UK approach ...

Since 1911: not just protection against fac-simile copies Translations Adaptations => never forget idea/expression dichotomy Test set out by Lord Millett in Designer Guild "Once the judge has found that the defendants' design incorporates features taken from the copyright work, the question is whether what has been taken constitutes all or a substantial part of the copyright work. This is a matter of impression, for whether the part taken is substantial must be determined by its quality rather than its quantity. It depends upon its importance to the copyright work. It does not depend upon its importance to the defendants' work, as I have already pointed out. The pirated part is considered on its own ..."

What makes design law different from copyright

Start of protection: not from date of creation, but from date when design first made available No moral rights Duration not linked to life of design author

Copyright justifications: incentive-based theories

Starting points: Creative works valuable to society Authors should receive appropriate incentives that offset time and efforts Historically: 1710 Statute of Anne: "An Act for the Encouragement of Learning" Rationale for protection Access to work (limited to printed books) Public domain (14y duration) US Constitution's Copyright Clause (Article I, Section 8, Clause 8): "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

EU: limited harmonization of the originality requirement

Subject-matter Computer programs (Article 1(3) Directive 2009/24/EC) Databases (Article 3(1) Directive 96/9/EC) Photographs (Article 6 Directive 2006/116/EC) "author's own intellectual creation" The notion of originality is one of the key concepts in copyright law and forms part of the underlying justification for the statutory system of copyright protection for authors ... Whether the requirement of originality should be harmonised regarding all types of works remains a debated issue. In theory, divergent requirements for the level of originality by Member States have the potential of posing barriers to intra-Community trade. In practice, however, there seems to be no convincing evidence to support this. Commission Staff Working Paper on the review of the EC legal framework in the field of copyright and related rights (2004

• Twentieth Century Fox Film Corp & Ors v British Telecommunications Plc

The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had found against the web-site, but it had disappeared an re-appeared with a different name and offshore. Held: An injunction was granted. The defendant had proclaimed its ability to prevent other abuse of its systems. It could not now deny it. The claimant Studios had established sufficient title to the works to claim the injunction under section 97A of the 1988 Act. Any non-infringing use of the site had been minimal. It was unlikely that the plaintiffs would seek ever greater numbers of orders, but would concentrate on the worse infringers by volume. It remained possible that the blocking arrangements would be side-stepped by some users, but it did not follow that the order would be ineffective.

Article 4(2) Directive 2009/24/EC (Software Directive)

The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof."

Tommy Hilfiger v DELTA Center (2016)

This judgement, which extends the decision in L'Oreal v eBay relating to online marketplaces, held that under the third sentence of Article 11 of the Directive 2004/48/EC ('Enforcement Directive'), operators of physical marketplaces, who sublet pitches to market-traders, may be forced to stop concluding contracts with market-traders selling counterfeit goods on their pitches to prevent new infringements of intellectual property rights by the market-traders. DISPUTE Delta Center a.s. is the tenant of a marketplace in Prague who sublets pitches to market-traders. A number of brand owners, including Tommy Hilfiger, Lacoste and Burberry, found that the market-traders were selling counterfeits of their goods. As such, the brand owners bought an action against Delta Center in Prague courts to try and obtain an injunction against Delta Center to stop them subletting pitches to market-traders who infringed the brand owner's intellectual property rights. The basis for applying for this injunction was that Article 11 of the Directive provides for injunction against intermediaries "whose services are used by a third party to infringe an intellectual property right" and therefore similar to operators of online marketplaces (covered by the L'Oreal v eBay decision), the operators of physical marketplaces, under the Directive, should be liable. The Prague City Court rejected the application for an injunction and this decision was upheld by the Prague High Court. The case was then appealed to the Czech Supreme Court who took the view that this dispute would have to be resolved on the basis that the CJEU considers (1) whether the interpretation of the third sentence of Article 11 in the L'Oreal v eBay case, which held that Article 11 applied to online marketplaces, also applies to physical marketplaces and (2) if the conditions for an injunction addressed to intermediaries in an online marketplace would be identical for intermediaries who provide a service relating to letting pitches in physical marketplaces. JUDGMENT The CJEU held that the fact that the provision of sales point concerns an online marketplace or a physical marketplace is irrelevant and it is also not apparent from the Directive that its scope is limited to electronic commerce, i.e. online marketplaces. As such, the third sentence of Article 11 of the Directive must be interpreted as meaning that operators of physical marketplaces who sublet pitches to market-traders, some of whom use their pitches to sell counterfeit branded products, falls within the concept of "intermediary whose services are being used by a third party to infringe an intellectual property right". Furthermore, the CJEU held that the conditions of an injunction against an intermediary, i.e. an operator of a marketplace, would be the same as those imposed on an intermediary in an online marketplace. The injunctions must be equitable and proportionate, not excessively expensive and must not create barriers to legitimate trade. This judgement is most likely going to assist brand owners tackle the sale of counterfeit goods in marketplaces. Brand owners could potentially write to operators of marketplaces bringing to their attention this CJEU judgement and request they assist them in taking steps to stop market-traders selling counterfeit goods and take measures to prevent future market-traders infringe their intellectual property rights.

• Art & Allposters International BV v Stichting Pictoright

Today's an important day for EU copyright at the Court of Justice of the European Union (CJEU). The Court has in fact just issued its much-awaited 50-paragraph decision in Case C-419/13 Art&Allposters. Readers will remember that this was a complex reference for a preliminary ruling from the Dutch Supreme Court encompassing a number of topical issues, notably: (1) the right of adaptation; and (2) exhaustion of the distribution right under Article 4 of the InfoSoc Directive. Today the Court ruled that: With regard to the adaptation right, it is true that the InfoSoc Directive does not mention it. However, a situation like the one at hand, ie paper poster and canvas transfer of copyright-protected works, falls within the scope of Article 4(1) of the InfoSoc Directive; Exhaustion of the right of distribution under under Article 4(2) of the InfoSoc Directive only applies to the tangible support of a work. Background The background proceedings concern the unauthorised making and selling by Art&Allposters of altered versions of copyright-protected artworks, whose rights are managed by collecting society Pictoright. Art&Allposters used authorised posters of the artworks in question to transfer the images on canvas first, and sell them afterwards over the internet. It is worth adding that this process involved, first, the placing of a special cover on the poster and, secondly the transfer of the image from the poster to the canvas by means of a chemical process. Following an unsuccessful outcome at first instance, Pictoright won before the 's-Hertogenbosch Court of Appeal. This court relied on the 1979 Poortvliet judgment to exclude that the right of distribution had been exhausted as per Article 12b of the Dutch Copyright Act and Article 4(2) of the InfoSoc Directive. The litigation eventually reached the Supreme Court, that decided to stay the proceedings and seek guidance from the Court of Justice of the European Union (CJEU) as to the following: 1. Does Article 4 of the [InfoSoc] Directive govern the answer to the question whether the distribution right of the copyright holder may be exercised with regard to the reproduction of a copyright-protected work which has been sold and delivered within the European Economic Area by or with the consent of the rightholder in the case where that reproduction had subsequently undergone an alteration in respect of its form and is again brought into circulation in that form? 2(a). If the answer to Question 1 is in the affirmative, does the fact that there has been an alteration as referred to in Question 1 have any bearing on the answer to the question whether exhaustion within the terms of Article 4(2) of the Copyright Directive is hindered or interrupted? 2(b). If the answer to Question 2(a) is in the affirmative, what criteria should then be applied in order to determine whether an alteration exists in respect of the form of the reproduction which hinders or interrupts exhaustion within the terms of Article 4(2) of the Copyright Directive? 2(c). Do those criteria leave room for the criterion developed in Netherlands national law to the effect that there is no longer any question of exhaustion on the sole ground that the reseller has given the reproductions a different form and has disseminated them among the public in that form (judgment of the Hoge Raad of 19 January 1979 in Poortvliet, NJ 1979/412)? The AG Opinion Last September Advocate General (AG) Cruz Villalon issued his Opinion [not yet available in English, but commented here], in which he took position as regards two fairly controversial issues under EU copyright. First, he held the view that - contrary to the position of the EU Commission - the right of adaptation has not been generally harmonised at the EU level. Only analogically exhausted ... Secondly, he stated that the right of distribution can only be exhausted in relation to the tangible support of a work, not also its (as the AG called it) corpus mysticum. In other words, the AG appeared to suggest that, not only can there be just analogue exhaustion under the InfoSoc Directive, but exhaustion is to be interpreted strictly. For instance, the one pending before the Dutch Supreme Court would not be a case where exhaustion even comes into consideration, on grounds that the alteration by Art&Allposters was particularly relevant and concerned the same support which was used for the original artworks. The CJEU decision In its judgment the CJEU followed the AG Opinion, though not in relation to the issue of the right of adaptation. Notably, the Court relied on Recital 28 to the InfoSoc Directive and the WIPO Copyright Treaty to hold the view that exhaustion of the distribution right only applies to tangible objects: "[T]he EU legislature, by using the terms 'tangible article' and 'that object', wished to give authors control over the initial marketing in the European Union of each tangible object incorporating their intellectual creation. That finding, as the European Commission correctly states, is supported by international law, and in particular by the WIPO Copyright Treaty, in the light of which Directive 2001/29 must be interpreted as far as possible ... Article 6(1) of that Treaty provides that authors of literary and artistic works are to enjoy the exclusive right of authorising the making available to the public of the original and copies of their works through sale or other transfer of ownership. In that regard, the significance of the term 'copy' was explained by the Contracting Parties by an agreed statement concerning Articles 6 and 7 of the Treaty adopted by the Diplomatic Conference of 20 December 1996, at which the Treaty itself was also adopted. According to that statement, 'the expressions "copies" and "original and copies" being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects'. Accordingly, it should be found that exhaustion of the distribution right applies to the tangible object into which a protected work or its copy is incorporated if it has been placed onto the market with the copyright holder's consent." [paras 37 to 40] ... But InfoSoc adaptable This said, the Court considered whether the fact that the object, which was marketed with the copyright holder's consent, has undergone subsequent alterations to its physical medium has an impact on exhaustion of the distribution right. The CJEU concluded that "the consent of the copyright holder does not cover the distribution of an object incorporating his work if that object has been altered after its initial marketing in such a way that it constitutes a new reproduction of that work. In such an event, the distribution right of such an object is exhausted only upon the first sale or transfer of ownership of that new object with the consent of the rightholder." [para 46] All in all: "Article 4(2) of Directive 2001/29 must be interpreted as meaning that the rule of exhaustion of the distribution right set out in Article 4(2) of Directive 2001/29 does not apply in a situation where a reproduction of a protected work, after having been marketed in the European Union with the copyright holder's consent, has undergone an alteration of its medium, such as the transfer of that reproduction from a paper poster onto a canvas, and is placed on the market again in its new form." [para 49] In a nutshell Of course this case was not about digital exhaustion. However, by suggesting that exhaustion under Article 4 of the InfoSoc Directive only applies to the tangible support of a work, the Court appeared to imply that there is no such thing as a general digital exhaustion under EU copyright. In other words: the decision in UsedSoft [on which see Katposts here and 1709 Blog posts here] was possible only because of the lex specialis nature of the Software Directive [which the CJEU itself re-affimerd in Nintendo, here here and here]. Readers will be aware that earlier this week, the Amsterdam Court of Appeal issued a ruling against second-hand ebook seller Tom Kabinet [here], although it refrained from addressing the issue of whether the InfoSoc Directive allows such thing as a digital exhaustion. At this stage this Kat notes that the Art&Allposters ruling may have provided a (partial) response to this thorny issue, yet the last word in this respect is probably yet to be said, whether at the judicial or policy levels. A more detailed analysis of today's ruling will follow shortly, so: stay tuned!

Allposters, C-419/13(2015)

Unauthorised making and selling of altered versions of works (transfer of posters on canvas) Could this reproduction be considered OK because of exhaustion of the right of distribution? Recital 28 "Copyright protection under this Directive includes the exclusive right to control distribution of the work incorporated in a tangible article. The first sale in the Community of the original of a work or copies thereof by the rightholder or with his consent exhausts the right to control resale of that object in the Community" Recital 29 "The question of exhaustion does not arise in the case of services and on-line services in particular" Agreed statements Article 6 WCT: only tangible copies [T]he EU legislature, by using the terms 'tangible article' and 'that object', wished to give authors control over the initial marketing in the European Union of each tangible object incorporating their intellectual creation ... [I]t should be found that exhaustion of the distribution right applies to the tangible object into which a protected work or its copy is incorporated if it has been placed onto the market with the copyright holder's consent.

The CJEU Flos decision

Until 2001 Italian law allowed copyright protection in industrial designs on grounds of scindibilità Implementation of Design Directive allowed cumulation In 2006 Flos brought proceedings for copyright infringement against Semeraro over Arco lamp (design protection expired) Designs that were in the public domain at time of entry into force of national implementation of Design Directive fall outside scope of Article 17 This does not prevent protection under InfoSoc Directive Copyright vests in designs protected by a registered design right Duration must be life+70 (rationale of Term Directive)

Pinckney

You are a UK copyright holder (former progressive rock legend) domiciled in France and happen to discover that an Austrian company has unlawfully reproduced your work in Austria, and UK companies have sold unlawful copies via a website also accessible from France You want to sue the Austrian company for "infringement committed by placing content online" Where do you sue? The response is in Brussels I Regulation Recast General rule (Art 4, formerly Art 2): MS of domicile of the defendant (Austria) Special rule (Art 7(2), formerly Art 5(3)): MS where the harmful event occurred or may occur (justification: existence of connecting factor) MS where the damage occurred MS where the event giving rise to it occurred (UK? Austria?) Can France be the place where the damage occurred just because website accessible from there, or do you need 'intention to target' the public or other specific connecting factor in that MS? → Intention to target indicated as a requirement in earlier - very specific - CJEU cases

there has been no recorded cases in uk where copyright was denied for photos based on lack of orginality

antiquesportolfio

dan browns's the da vinci code

it incoperated a veiw of history that had been put forward in an earlier non fiction work the 'part taken' should be coprighted work test is not useful. while applying the 'substantial skill and labour test' the court also expressed its finding in terms of the distinction between ideas and their expression. the histroical theory may have been taken, but the way it had been expressed had not, so there was no infringement

Ashdown v Telegraph Group Ltd,[

the courts "bear in mind that considerations of public interest are paramount". Because of this, there are many different things which enhance or detract from the "fair" nature of the dealing. If the copyrighted work had not been "made available to the public" at the time, this will count against the use being fair, and makes the defence on the grounds of criticism and review "unavailable". The courts will give different weight to different kinds of documents; a series of private letters which have not been published will detract more from the fairness of the infringement than unpublished official reports which discuss matters of public interes

hyde park

the death of princess di was still discussed in the press at the time of the aleged infringement that element of public discussion made it a current event, despite the fact that the death occured a long time ago.

Metix v Maughan

the high court moved away from the previous approach of defining scuplture with reference to how something was made, and suggested a definition: 'a three dimensional work by an artists's hand'

Hubbard v Vosper,

the parties to the case are competitors and infringing on the work acts as an alternative to purchasing the original, this will limit the fairness of the dealing. Occasionally the courts will also consider whether the purpose of the infringement could have been achieved in a less intrusive way, as in Hyde Park

THE ROLE OF INTERMEDIARIES (ISPs) IN THE ONLINE COPYRIGHT ENFORCEMENT PROCESS

• (Recap) The Ecommerce Directive (Directive 2000/31/EC) o Types of ISPs (mere conduit, caching, hosting) o Safe harbours o No general obligation to monitor • Article 8(3) of the InfoSoc Directive (Directive 2001/29): injunctions against intermediaries • Blocking injunctions, in particular the CJEU decision in Telekabel, C-314/12

UK COPYRIGHT AND THE IMPACT OF CJEU CASE LAW

• Closed list of eligible subject-matter • Originality: from 'enough labour, skill or effort' to the EU standard

BREACH OF CONFIDENCE: ELEMENTS OF THE ACTION

• Confidential nature of the information o Excluded information o Focus on private information, including notion of "reasonable expectation of privacy" • Obligation of confidence o Types of relationship between parties o The case of sexual relationships • Breach o Factors to consider o Public interest defence

MORAL RIGHTS

• Different approaches to moral rights protection: dualistic droit d'auteur countries vs copyright traditions • Moral rights in international copyright law: Article 6bis of the Berne Convention • Lack of harmonization at the EU level o The Deckmyn decision • UK approach to moral rights, including: • Right of attribution, including requirement that right be asserted and exceptions to the right • Right of integrity under the CDPA and Berne Convention and exceptions to the right

ROSATI COPYRIGHT INFRINGEMENT CHECKLIST*

• Is the allegedly infringed work protected by copyright in the first place? • Does the work belong to one of the categories of works protected under UK copyright? If so, which one? • Is the work sufficiently original? • Who owns the copyright? • What rights have been potentially infringed? a) ECONOMIC RIGHTS (test is in s16 CDPA) (What kind of infringement are we talking about here, primary or secondary?) Is/was there a licence - whether express or implied - in place? If so, what is/was its scope? What rights have been potentially infringed? Is there a case of independent creation (no infringement) or rather derivation (this is the causal connection required by s16 CDPA)? Has there been the taking of the work as a whole or a substantial part of it? • As to "substantial part", the question you have to ask yourself is: is this part sufficiently original? b) MORAL RIGHTS • Never forget that they can be waived under UK law, and that integrity requires a "treatment" (see s80 CDPA) • Do any defences (also known as "permitted acts" and "exceptions and limitations") apply? a) Is there any defence available under UK law? b) If so, can the dealing at hand be considered fair (matter of fact)? Factors to consider include: Amount and quality of what has been taken Could have the same purpose been achieved otherwise? Use made of the original work, including whether commercial advantage and motives of the dealing Effects on the market for the original work, eg substitution effect Is the original work unpublished? How was the original work obtained?

BREACH OF CONFIDENCE: RATIONALE OF THE ACTION

• Limited international harmonization • Development and scope of the action

JURISDICTION IN ONLINE INFRINGEMENT CASES

• The Brussels I Regulation Recast (Reg 1215/2012/EU): general and special rule of jurisdiction for copyright cases • The decision of the Court of Justice of the European Union (CJEU) in Pinckney, C-170/12 and the accessibility criterion o Difficulties (particularly as regards damages), and the criticisms of AG Cruz Villalon in Hejduk, C-441/13 o The CJEU decision in Hejduk

TOPICAL ISSUES FACING ECONOMIC RIGHTS: THE RIGHT OF DISTRIBUTION

• The right of distribution in the InfoSoc Directive and in the CDPA • Advertisement for sale of copyright works and right of distribution: the Labianca case • Storage of infringing content: Syed • Exhaustion of the right of distribution in the InfoSoc and Software Directives o Rationale of exhaustion o The UsedSoft case o The Allposters case o Tom Kabinet (in progress)