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Several months ago this blog  reported  that the longstanding litigation in The Netherlands against second-hand ebook  e-book trader  Tom Kabinet  would result in a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) asking whether the  InfoSoc Directive  allows 'digital exhaustion'. In a 2017  decision  the Rechtbank Den Haag (Court of The Hague) held that Tom Kabinet is not liable for unauthorized acts of communication to the public under the Dutch equivalent of Article 3(1) of the InfoSoc Directive. However, that court deemed it unclear whether the defendant could invoke the digital exhaustion of the right of distribution in relation to its e-book business. Now, The IPKat has learned (again, thanks to  @TreatyNotifier ) that - at last - the questions for the CJEU have been  finalized . Here they are  [WARNING: the translation from Dutch is mine … thanks to Google T...

The IPKat has just been alerted that the EU Commission has published today a  document  detailing the consequences of Brexit on UK copyright. " Subject to any transitional arrangement that may be contained in a possible withdrawal agreement  [a few days ago it appeared that there might be a  21-month period  after Brexit day in which the UK will remain subject to EU rules and the jurisdiction of the Court of Justice of the European Union] , as of the withdrawal date  [30 March 2019] , the EU rules in the field of copyright will no longer apply to the United Kingdom." This, in substance, is the message of the document.  More specifically, one can learn from the document that - as of the withdrawal date -relevant EU directives and regulations will cease applying to the UK, and the relationships between the EU and the UK (as a third country) will be governed by relevant international treaties to which both are parties, including  the WIPO Interne...

Olivia de Havilland Does one have the power to control how his/her own image is portrayed? To what extent do third parties’ free speech rights prevail over the rights of the person portrayed? These, in a nutshell, have been the core issues at the centre of the important lawsuit initially brought by 101 year-old actor  Olivia de Havilland  (who famously starred alongside Vivien Leigh and Clark Gable in  Gone with the Wind ) against FX, the producers of TV miniseries  Feud: Bette and Joan . Although the latter focused on the rivalry between film stars Bette David and Joan Crawford, there is also Catherine Zeta-Jones playing Olivia de Havilland, a close friend of Bette Davis. Background Olivia de Havilland sued FX in 2017, claiming violation of her statutory right of publicity –  California Civil Code section 3344  – and the common law tort of misappropriation (on grounds that de Havilland had not granted FX any permission to use her name, ident...

One of Malka's Flair photographs A few days ago this blog  reported  on an interesting  decision  of the Swedish Supreme Court that held that unauthorized 'appropriation' of a substantial part of a photograph for use in a painting did not amount to copyright infringement, as the meaning of the defendant's work was different from the original work. A few days ago, also a French court (Versailles Court of Appeal) had the opportunity to decide a case ( Malka v Klasen , RG No  15/06029,  16 March 2018 ) with a similar factual background.  Unlike the Swedish Supreme Court, the Versailles Court of Appeal held that the defendant had  infringed  the claimant's copyright. It found that the defendant could neither invoke the parody defence under French copyright law nor freedom of (artistic) expression under the  European Convention on Human Rights (ECHR) . Let's see what happened. Background Photographer Alix Malka ...

If only all mining activities were these cheerful! A few days ago this blog  reported  that Irish Government has recently proposed the introduction into Irish law (new section 53A of the Copyright Act) of a  copyright exception  for text and data mining (TDM). From an EU standpoint, the most interesting aspects of the Irish proposal are probably the following: First, its timing: while it is true that a TDM exception was first proposed in the 2013  Modernising Copyright  Report , an actual initiative of that Member State's Government comes at a time when discussion is well underway to introduce a mandatory TDM exception at the EU level  [Article 3 of the Proposal for a  Directive on copyright in the Digital Single Market   - on the EU proposal see further  here  and  here ] .  Secondly, the different scope of the Irish exception  [which would be derived from Article 5(3)(a) of the  InfoSoc Directive ] ...

Can ‘La Mafia se sienta a la mesa’  [‘se sienta a la mesa’ means ‘takes a seat at the table’]  be registered as a figurative EU trade mark (EUTM)  [see right]  for a variety of goods and services in Classes 25, 35 and 43 of the Nice Agreement (including clothing and a restaurant chain) or would a registration of this kind be contrary to accepted principles of public policy and morality? This morning the General Court (GC) held that the latter is the correct approach in its  decision in  La Mafia Franchises v EUIPO , T-1/17 . Background In 2006 an application for registration of the ‘La Mafia se sienta a la mesa’ in the Nice classes above was filed, and the trade mark was registered in 2007. In 2015 Italy filed an application with the EUIPO for a declaration that the contested mark was invalid in respect of all of the goods and services for which it had been registered. According to the Italian Republic this mark was contrary to what is n...

Readers may recall that back in 2013 the Irish Review Committee released a very interesting report, aimed at  Modernising Copyright  in this EU Member State  [see  here ,  here ,  here ,  here ,  here ] .  Moving from the realisation (or rather wish?) that  " Copyright reform is in the air ", the Report recommended a number of changes to the Irish copyright framework as embodied in the  2000 Copyright Act , including an ambitious  proposal to introduce a tightly drawn Irish fair use exception  (holding that this possibility would not be prevented by the system of exceptions and limitations in the  InfoSoc Directive ), and a  specific exception for linking and marshalling   [all this occurred while the CJEU  Svensson  decision - Katposts on linking  here  - was pending, and it was not entirely clear whether linking could qualify as an act of communication to the public] . After the Re...