©-LAW

Over time the issue of whether and how to protect cultural heritage and folklore has attracted increasing attention. Discussions in this sense have famously taken place in a number of jurisdictions, including Australia and some African countries. With particular regard to the latter, a few days ago the  Financial Times  published an interesting  article , discussing the case of 'Maasai IP'. Maasai  are  are an ethnic group that has traditionally led a semi-nomadic life across southern Kenya and northern T anzania. They are  are famous as warriors and cattle-rustlers. The  Financial Times  article discusses how awareness has arisen among Maasai as regards effective protection of the name, image, symbols, and reputation of Maasai people.  In particular, Isaac ole Tialolo, a member of Kenya’s Maasai tribe, is credited as the initiator of a "more legalistic approach to protecting - and monetising - [the] cultural heritage" o...

What is the standard of originality for copyright in works of applied art, and industrial models and designs? Is there an EU rule or can Member States decide to set their own threshold to protection? This, in a nutshell, is the very interesting and potentially controversial issue that the Court of Justice of the European Union (CJEU) has just been asked to address in a brand-new reference from Portugal, ie  Cofemel , C-683/17 . The application of the Portoguese Supreme Court is not yet available on the Curia website, but these are the questions referred (via  @titorendas ): At this stage I am not aware of the nature of the Portuguese litigation but - from the way in which the questions are formulated - it would appear that: (1) The reference is not really about EU law as such, but rather CJEU's interpretation of EU law ("the CJEU's interpretation").  (2) This suggests that the reference may be about whether and to what extent the string of CJEU o...

The possibility to seek an injunction against an intermediary whose services are used by third parties to infringe an IP right has proved an important tool in the hands of rightholders, including in the online context.  The reason why the role of intermediaries is central is because, as Recital 59 in the preamble to the  InfoSoc Directive   [but the same is true also for the  Enforcement Directive ]  explains,  “[i]n 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.” However, how should responsibility for the costs of injunctions be allocated?  [ here  are some slides I prepared, and  here 's a more detailed discussion] The UK approach to costs In the UK, since the first copyright blocking injunction granted in  ...

Plescia's image and the warning that "Smoking causes strokes and disability" Can someone's own image be used without permission? This question may have different answers, depending on both the context in which the relevant image is used and the legal system considered. With particular regard to the latter, in countries that envisage 'image rights' (or publicity rights), the availability of protection may be even irrespective of the context in which one's own image is being used. Italian law This is for instance the case of Italy which, similarly to other continental European jurisdictions, has a long-standing history of protecting image rights.  The relevant provision in the Italian Civil Code, ie  Article 10 , states that if one's own image is displayed or published outside the cases in which the display or publication is allowed by law, or in situations which are prejudicial to the honour or reputation of the person, a court may...

Following the conclusion of the 6-month Estonian presidency, the presidency of the Council of the European Union is now  Bulgarian , and will be so for the first semester of 2018. The  Council  is one of the key EU institutions and brings the voice of Member States' governments into the decision- and law-making process. In fact and among other things - together with the European Parliament - the Council is in charge of adopting EU legislation. Of course, one of the pending pieces of legislation that might receive a decisive boost towards its formal adoption over the next few months is the Directive - proposed by the EU Commission in September 2016 - on copyright in the Digital Single Market  [ here ; Katposts  here ] . Since its release, the draft directive has attracted extensive commentary. In particular, the draft provisions contained in Article 11 ('Protection of press publications concerning digital uses', this being a proposal to intro...

What has happened to online ecommerce platforms? Over the past few months news reports have multiplied – or, perhaps, their underlying issues have acquired greater visibility – that brand owners have been increasingly voicing criticisms against, sued, or discontinued sales on ecommerce sites. In particular, after the  criticisms  made against Alibaba, it seems that Amazon is now making the headlines. Let’s have a quick look at what has happened over the past few months. Court actions First, there have been legal proceedings being brought by trade mark owners, claiming a direct responsibility of Amazon in the sale of counterfeits or invoking a right to prevent sales on such platform. An example of the former is the  lawsuit  filed by Daimler against Amazon in late 2017 in the US District Court for the Western District of Washington at Seattle. The well-known  German car manufacturer argues that Amazon is directly responsible for the “ offer fo...