©-LAW

On 19 October last IPKat and the  British Literary and Artistic Copyright Association (BLACA)  partnered once again and organised a panel discussion on the implications that the departure of the UK from the EU (aka 'Brexit) will have on UK copyright law. Moderated by myself, the panel featured  Sir Richard Arnold  (High Court Judge, Chancery Division),  Nicholas Saunders  (Barrister, Brick Court Chambers),  Ros Lynch  (Copyright and IP Enforcement Director, IPO),  Ian Moss  (Director Public Affairs, BPI),  Tom Ohta  (Senior IP lawyer, BT), and  Estelle Derclaye  (Professor of IP Law, University of Nottingham).   Asked what EU development has had the biggest impact - for better or worse - on UK copyright, Sir Richard highlighted at the outset how a number of developments would have occurred independently from UK membership of the EU. These include the changes mandated by the WIPO Copyright Treaties, TRIPS,...

The allegedly infringing TV gameshow Can TV formats be protected by copyright?  While this question has received an answer in the affirmative in a number of jurisdictions around the world  [this blog recently  reported  on the latest  judgment  of the Italian Supreme Court to confirm eligibility for protection of this subject-matter under Italian law] , under UK law things have been uncertain for a long time. One of the reasons for such uncertainty is the outcome of the  Opportunity Knocks  case ( Green v Broadcasting Corporation of New Zealand ), in which a claim to the copyright in the format for a game show failed. However, it is important to recall that one of the principal reasons why the action was dismissed is that no scripts were available at trial and in any case they contained little more than general ideas and concepts. Leading UK copyright commentaries like  Copinger and Skone James  have indeed highlig...

           Visual map on linking after  GS Media , available  here A few days ago this blog  reported  on a recent  decision  of the Regional Court of Hamburg that, similarly to another German judgment – this being the also recent  ruling  of the Federal Court of Justice (BGH)  [ here ]  – questioned or, at least, proposed a restrictive meaning and application of the recent decisions of the Court of Justice of the European Union (CJEU) on the right of communication to the public and linking to protected content under Article 3(1) of the  InfoSoc Directive . It appears, in particular, that it is the CJEU construction of prima facie liability for unauthorized linking as found in  GS Media   [Katposts  here ]  – notably the presumption of knowledge applied to link providers with a profit-making intention (see my table on the right hand side) – to face resistance. Than...

A few weeks ago this blog  reported  on the judgment of the German Federal Court of Justice which decided that the presumption of knowledge envisaged by the Court of Justice of the European Union (CJEU) in  GS Media   [Katposts  here ]  for for-profit link providers would not be applicable to search engines due to their importance to the functioning of the internet. I have been made aware that this decision is not an isolated instance, and a similar line of reasoning can be found also in another recent German judgment, ie the one of the Regional Court of Hamburg issued earlier this year ( 308 O 151/17 ). Also this ruling shows a  certain  disagreement with recent CJEU case law on the right of communication to the public, including in the linking context, and warns against the dangers of intending the  GS Media  presumption of knowledge in too a broad sense. Background The decision orginated in the context of proceedings br...

Contemporary architecture in Rome: the stunning MAXXI museum by Zaha Hadid The (until fairly recently little-known) copyright exception in Article 5(3)(h) of the  InfoSoc Directive  allowing Member States to authorize the "use of works, such as works of architecture or sculpture, made to be located permanently in public places", also known as freedom of panorama, has been subject to increasingly frequent (and heated) discussion over the past few years. Freedom of panorama: from niche to ubiquitous? At the EU level, in her  report  MEP Julia Reda proposed to make the exception mandatory for all Member States to have. At the moment, however, there seems to be no real discussion around this issue, nor does it seem that the EU Commission intends to propose legislation in this sense. At the national levels legislatures and courts have been busy addressing this area of copyright  [a handy overview of national approaches (both at the EU and non-EU l...

As  reported  by this blog a few months ago, the Court of Justice of the European Union (CJEU) has been required to address issues of lawfulness - notably enforceability - of the German neighbouring right for press publishers. Why a CJEU reference? Back in May, in fact, the Landgericht Berlin decided  [ here ]  to stay the proceedings in the litigation between the collecting society responsible for collecting royalties in favour of publishers (VG Media) and Google, and make a reference for a preliminary ruling to the CJEU.  The purpose of the reference is to receive guidance on the actual enforceability of the German press publishers' right.  Directive 98/34  requires in fact Member States to notify the European Commission of any  “technical regulations” that they intend to adopt. This is to allow the Commission to assess their impact on the internal market. Apparently German Government  failed to notif...