©-LAW

Is the operator of an online marketplace (more specifically: a hybrid marketplace, which also provides logistics assistance to third-party sellers through a fulfilment programme) using third-party trade marks itself, in accordance with Article 9(2)   EUTMR , when it displays, on its marketplace, advertisements of independent sellers’ goods that infringe such trade mark rights, which it also delivers to end customers? Is the perception of a reasonably well informed and reasonably observant internet user relevant when undertaking such an assessment? Gigi was also awaiting her delivery ... These are the key issues on which the Court of Justice of the European Union (CJEU) has been requested to provide guidance.  Joined cases  Louboutin/Amazon , C-148/21 and C-184/21  are referrals for a preliminary ruling made in the context of highly similar proceedings pending before, respectively, Luxembourg’s Tribunal d’arrondissement (C-148/21) and Belgium’s Tribunal de l’entrepris...

  On 26 April 2022, the Court of Justice of the European Union (CJEU) delivered its long-awaited judgment in   Poland v European Parliament and Council  (C-401/19) . The Court held Article 17 of the   DSM Directive   compatible with freedom of expression and information under Article 11 of the   EU Charter of Fundamental Rights . In so doing, it rejected the request of the Republic of Poland to annul said provision. The Court also noted how currently no valid alternatives appear to exist to the use of automatic recognition and filtering tools in order to comply with the obligations under Article 17(4)(b)-(c) (para 54). The judgment considers that the liability regime established under Article 17(4) represents a restriction on freedom of expression/information (para 58). Nevertheless such a restriction is not undue. Internal safeguards are provided, of which six key ones are identified (see paras 85-98). Member States are required to consider such safeguards...

  A few days ago the Court of Justice of the European Union (CJEU) rendered its   judgment in C-433/20  Austro-Mechana , ruling that the notion of reproduction ‘on any medium’ extends to the cloud and, therefore, that private copying under Article 5(2)(b) of the   InfoSoc Directive   also applies in that context. Kat cloud ... The judgment is in line with last year’s  Opinion  of Advocate General (AG) Hogan  [ here ]  and clarifies the treatment of private copying in the context of cloud computing, this being something that had been previously asked to the Court (in the context of the  VCAST  referral:  here ), but which the CJEU did not expressly address, preferring instead to focus on the qualification of providers of cloud-based storage facilities that give access to protected content to users based in territories for which no licence is in place. Background This referral from Austria was made in the context of litigation be...

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...

  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...

  Back in 2019, The IPKat   reported   on a referral from Belgium –   Mircom , C-597/19 – asking the Court of Justice of the European Union (CJEU) to clarify the treatment of (i)   seeding   under the   InfoSoc Directive   and (ii) ‘trolls’ under the   Enforcement Directive , as well as the interplay between copyright enforcement and data protection law ( GDPR ). Earlier this week, the Court issued its  ruling , substantially endorsing the earlier  Opinion   of Advocate General (AG) Szpunar. Background Also Bluebell received a worrying request for damages in connection with some suspicious online activities ... Mircom is a Cypriot company holding rights (as an assignee) to several pornographic films. It is seeking an order from the Antwerp Companies Court against Belgian ISP Telenet that would allow it to identify the latter’s customers whose internet connections have been used to share illegal copies of Mircom’s films thr...