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  Last week, the UK Intellectual Property Office (UKIPO) released an intriguing   report  measuring and analyzing (apparently for the first time) the influence that social media influencers exert on consumers   also   when it comes to purchasing counterfeits. This kind of research is timely, also considering – among other things – recent initiatives in which brand owners and Amazon joined forces to bring judicial proceedings –  now settled out of court  – in the USA against influencers over the advertising, promotion and facilitation of sale of counterfeits on the latter’s platform through the influencers’ own accounts on Instagram, Facebook, and TikTok, as well as their own websites. The findings The UKIPO’s findings are based on a quantitative survey of 1,000 female (studies suggest that influencer marketing is “ highly gendered ”) consumers in the UK, aged 16 to 60 and who use social media at least once per week. In addition, the notion of ‘counterf...

Merpel celebrated Halloween in Florence Together with Spain   [Katpost  here ] , this week it has been Italy’s turn to transpose the   DSM Directive   into its own law. Next week, the   Legislative Decree   approved by the Council of Ministers will be published on the Italian Official Journal ( Gazzetta Ufficiale ). During the summer, The IPKat  discussed  the content of some of the most ‘interesting’ draft provisions that Italy was considering adopting to implement the Directive into its own law. The final text of the Italian Legislative Decree does not substantially depart from that draft legislation. Let’s take a closer look at of some of the provisions – online content sharing service providers (OCSSPs), text and data mining (TDM), press publishers’ right – eventually adopted and see what mark the new Italian provisions may deserve from the perspective of compliance with their EU counterparts – respectively: Articles 17, 3-4, and 15 of the Dir...

Kat cloud   Does the private copying exception and, with it, the fair compensation requirement under Article 5(2)(b) of the   InfoSoc Directive   apply to reproductions carried out by using cloud-based recording services? If so, can rightholders request the providers of such a service to impose a levy even if their customers (natural persons) have already paid one when purchasing the devices (eg, computers, smartphones, tablets) subsequently used to undertake acts of reproduction covered by that provision? These, in essence, are the issues that the Court of Justice of the European Union (CJEU) has been called upon to decide in  Austro-Mechana , C-433/20 , a pending referral from Austria. IPKat readers interested in all things private copying (who’s not …) will be aware that private copying in the cloud is not an entirely novel issue for the CJEU. A few years ago, in fact, in  VCAST , C-265/16   [ here ]  the Court was asked questions relating to reprod...

  2021 is a momentous year for EU copyright law: it is the 30th anniversary since the adoption of the first ever copyright directive (the Software Directive 1991/250) and the 20th since the passing of the seminal InfoSoc Directive 2001/29. By 7 June this year, individual Member States should have also completed their own national processes for the transposition of the Digital Single Market Directive 2019/790. Besides legislative action, what copyright law is today at both the EU and national levels owes significantly to the case law developed over time by the Court of Justice of the European Union (CJEU). In several and notable instances, the Court has added flesh to the structure of thin legislative provisions, addressed technological advancement, and contributed substantially to the establishment of a Single Market for copyright content and copyright-based services. To celebrate the publication of   Copyright in the Digital Single Market. Article-by-Article Commentary to the...

Beach + sunbathing + copyright = the perfect summer As readers with an interest in EU copyright are well aware, EU Member States had time until 7 June to  transpose the   DSM Directive 2019/790   [Katposts  here ]   into their own national laws. With a few exceptions  [see Communia tracker  here ] , because of a number of reasons - ranging from COVID to the delayed  Article 17 Commission's guidance   [Katpost  here ]  to some important pending rulings of the Court of Justice of the European Union (CJEU), the majority of EU Member States missed this deadline. This said, based on what is already available, it is apparent that the provisions that the EU legislature adopted in 2019 to establish a ‘Digital Single Market’ will be implemented in different – if not altogether creative – ways across the EU. It is true that there are provisions in the Directive that leave Member States significant discretion. Such discretion ranges from the v...

  Earlier this year, The IPKat   reported   on the judgment of the Grand Chamber of the Court of Justice of the European Union (CJEU) in   VG Bild-Kunst , C-392/19 , an important case concerning contractual restrictions to linking under EU copyright law (on that occasion, I also updated my linking table: see   here ). The CJEU explicitly ruled – for the first time – that linking to a copyright work lawfully published on a third-party website may be restricted through contract and not solely through technical restrictions on access (for instance, a paywall). To this end, however, the concerned rightholder is required to adopt or mandate the adoption of effective technological measures. Lacking these, an unauthorised act of linking shall not be infringing. The judgment has important implications for the construction of the right of communication to the public in the  InfoSoc Directive  and its application to online scenarios, as well as for the interpret...

AG Saugmandsgaard Øe Is Article 17 of   Directive 2019/790   (DSMD) compatible with the   EU Charter of Fundamental Rights , notably its Article 11 and the principle of freedom of expression and information? According to Poland, the answer should be in the negative.  Indeed, shortly after the adoption of the Directive in 2019, this country lodged a complaint ( C-401/19 ) before the Court of Justice of the European Union (CJEU), seeking the partial or - as a subsidiary claim - complete annulment of the provision. This morning, Advocate General (AG) Saugmandsgaard Øe released his  Opinion , advising the Court to rule that Article 17 is compatible with the Charter and should not be annulled. All this is true insofar as the monitoring obligations of online content sharing service providers (OCSSPs) are circumscribed by sufficient safeguards, which the provision itself contains, so to minimize the impact of the resulting filtering activities on users’ freedom of expr...

  Can the shape of a lipstick case function as an indicator of commercial origin? The answer is yes when such case is the iconic and immediately recognizable (at least to lipstick lovers!) one of   Rouge G de Guerlain : Today, also the General Court did agree in its judgment in  T-488/20  Guerlain   [currently only available in French] . The judgment (correctly) reverses the earlier, contrary decision of the EUIPO First Board of Appeal ( 2292/2019-1 ). Background In 2018, Guerlain applied to register the 3D sign represented above (left-hand side) for “lipsticks” in Class 3. The EUIPO examiner rejected the application considering that the sign would lack distinctive character, in accordance with Article 7(1)(b)  EUTMR . The subsidiary claim of the applicant under Article 7(3) EUTMR (acquired distinctiveness) could be examined once the decision became final. Guerlain unsuccessfully appealed.  The EUIPO Board considered that the shape applied for wou...

  Do platforms like YouTube and cyberlocker Uploaded directly perform copyright-restricted acts under Article 3 of the   InfoSoc Directive ? At what conditions is the hosting safe harbour under Article 14(1) of the   Ecommerce Directive   available? What may be the requirements for injunctions under Article 8(3) of the InfoSoc Directive? These are some of the questions that the German Federal Court of Justice had referred to the Court of Justice of the European Union (CJEU) in two separate cases, which were subsequently joined:  YouTube , C-682/18 and  Cyando , C-683/18. The  Opinion  of the Advocate General (AG) Øe was issued a little less than a year ago  [Katpost  here ] . This morning, the Grand Chamber of the CJEU delivered  its much-awaited ruling . Here are a couple of immediate impressions: First, unlike the AG, the CJEU was cautious not to venture into any analysis of the regime under Article 17 of the  DSM Directive ...