©-LAW

  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...

  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 ...

  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...

  A week ago, The IPKat   reported and commented   on the important   decision   of the Grand Chamber of the Court of Justice of the European Union (CJEU) in   VG Bild-Kunst , C-392/19.  In that judgment, the CJEU admitted the possibility for rightholders to restrict linking  by contract , provided that any such restrictions are imposed and/or implemented through the adoption of effective technological measures, in accordance with Article 6(1) and (3) of the  InfoSoc Directive . According to the CJEU, this requirement - which, as I wrote, might raise questions of compatibility with the no formalities rule in the  Berne Convention  - is prompted by the need to "ensure legal certainty and the smooth functioning of the internet". Readers may be aware that, over the past few years, I have developed IP and study aid materials (they can all be accessed  here ) primarily aimed at my students. Among them, there was a table - first publ...

  Can a rightholder restrict linking by contract, eg by imposing the adoption of technological measures?  This, in a nutshell, is the core issue at the heart of the referral to the Grand Chamber of the Court of Justice of the European Union (CJEU) in  VG Bild-Kunst , C-392/19, which was  decided  this morning. The Court answered in the affirmative. The referred question was: Does the embedding of a work – which is available on a freely accessible website with the consent of the rightholder – in the website of a third party by way of framing constitute communication to the public of that work within the meaning of Article 3(1) of [the  InfoSoc] Directive 2001/29/EC  where it occurs through circumvention of protection measures against framing taken or instigated by the rightholder? The ruling is important because it addresses an issue that was left outstanding after a string of CJEU decisions, starting as early as the 2014 ruling in  Svensson  ...

IPKat posts as evidence in court? Why not! Image credits: Riana Harvey Does the disclosure in court proceedings of a work protected by copyright or related rights amount to InfoSoc Directive ? Is the notion of ‘public’ in the right of communication/making available to the public in Article 3 therein to be intended in the same way as the notion of ‘public’ in the right of distribution in Article 4? How can copyright protection be reconciled with transparency obligations? a ‘communication to the public’ and/or a ‘distribution to the public’ within the meaning of the  These, in a nutshell, are the issues that the Court of Justice of the European Union (CJEU) will have to address when it decides  BY , C-637/19 , a referral made by the Svea Court of Appeal, Patent and Market Court of Appeal, Stockholm, Sweden. This morning, Advocate General (AG) Hogan issued his  Opinion , in which he advised the Court to rule that the electronic transmission by a litigant or a ...

Article 17 of the Copyright DSM Directive and the InfoSoc Directive: a special relationship? What is the legal nature of Article 17 of the  Copyright DSM Directive ? What is the relationship InfoSoc Directive ? between that provision and the  These questions, which  might  look at first sight academic in both nature and significance, are actually of great practical relevance, including to determine the room for manoeuvre enjoyed by EU Member States during the (ongoing) national transposition phase. In this sense, it is notable that the German Government has been moving from the idea that the freedom accorded under Article 17 is such that Member States are inter alia entitled to decide whether to introduce exceptions or limitations beyond  both  those specifically referred to in Article 17(7)  and  those listed in Article 5 of the InfoSoc Directive (see the proposed ‘de minimis’ remunerated ‘authorized use’ in  §6 of the German ...

AG Saugmandsgaard Øe A few days ago, The IPKat  reported  on Advocate General (AG) Saugmandsgaard Øe’s  Opinion  in YouTube  and C-683/18  Cyando . When the Court of Justice of the European Union (CJEU) issues its judgment, it will have the opportunity to determine: Joined Cases C-682/18  Whether user-uploaded content (UUC) platforms like YouTube and Uploaded (the latter is a cyberlocker) do perform acts of communication to the public under Article 3(1) of the  InfoSoc Directive   [according to the AG, in principle, they do not] ; Whether the hosting safe harbour in Article 14 of the  E-commerce Directive  is in principle available to these platforms  [according to the AG, it is] ; How to interpret Article 14(1)(a) of the E-commerce Directive and Article 8(3) of the InfoSoc Directive. Possibly (though no questions have been expressly referred on this point), the CJEU will also consider a central aspect of the AG...