©-LAW

  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...

LeBron James's avatar in NBA 2K18 Copyright and tattoos is one of The IPKat’s favourite topics. Over time a few posts have been devoted to exploring the intricacies of copyright law as applied to this type of works: see, eg  here ,   here ,  here ,  here ,  here ,  here ,  here . However, as Jeremy  recalled   - despite all this interest - The IPKat sports no tattoos,  not least because of the mess it would make of the fur. Having said so, tattoos are artistic works with no particular features, if not the medium they are attached to, ie the human body. From a copyright standpoint, issues might arise in a number of circumstances, including when: The owner of the body (clearly a tangible medium) on which the tattoo is affixed is not  also  the owner of the copyright in the work (the tattoo); The tattoo reproduced on someone's body is an infringing copy of a third-party copyright work. While the f...

Further to the  Opinion  of Advocate General (AG) Szpunar  [ here ] , this morning the Court of Justice of the European Union (CJEU) delivered its judgment in  VCAST , C-265/16 . This was a reference for a preliminary ruling from the Turin Court of First Instance (Italy), seeking guidance on the application of the private copying exception within Article 5(2)(b) of the  InfoSoc Directive  to cloud-based video recording services.  More specifically: d oes EU law prohibit a commercial undertaking from providing - without the authorisation of the relevant copyright owner - private individuals with cloud computing services for the remote video recording of private copies of works protected by copyright, by means of that commercial undertaking’s active involvement in the recording? The AG provided a sophisticated response to this question, substantially concluding that the exception - while being applicable also in instances invo...

Ca n the 'fair compensation' for private copying pursuant to Article 5(2)(b) of the  InfoSoc  Directive  be funded through a Member State's general state budget? This is in a nutshell the issue that the Court of Justice of the European Union (CJEU) had been asked to consider in  EGEDA , C-470/14 , a reference for a preliminary ruling from the Spanish Supreme Court seeking clarification about the compatibility of Spanish law on private copying with EU law. More specifically, the Spanish court had referred the following questions: "(1) Is a scheme for fair compensation for private copying compatible with Article 5(2)(b) of Directive 2001/29  [the InfoSoc Directive]  where the scheme, while taking as a basis an estimate of the harm actually caused, is financed from the General State Budget  [as is the case in Spain, but also Norway, Estonia, and Finland] , it thus not being possible to ensure that the cost of that compe...

Where can one (read: a collective management organisation) sue to obtain missing  payments of the fair remuneration due for private copying? This is the question that the Court of Justice of the European Union (CJEU) addressed yesterday in   Austro-Mechana v Amazon , C-572/14   [thanks to EU law enthusiast and scholar   Steve Peers   for the heads up] . The Austrian Supreme Court had in fact asked the CJEU to say whether  a claim for missed payment of ‘fair compensation’ under Article   5(2)(b) of the  InfoSoc Directive   can be considered akin to 'tort, delict or quasi-delict' within what is currently  Article 7(2) of Brussels I Recast  [formerly Article 5(3) of Brussels I]  for the sake of determining the court(s) competent to hear such action.   Besides the general rule (Article 4) that allows one to sue in the Member State where the defendant is domiciled/established, as a special rule Article 7(2) of Brussels ...

Henrik Saugmandsgaard Øe Via Katfriend and former GuestKat  Kate Manning  (Curated Media) comes the news that  the  Opinion  of Advocate General (AG)  Henrik Saugmandsgaard Øe  [ here  if you read Danish]  in  Austro-M echana , C-572/14  - escaping this Kat's attention (and much to her shame) - was in fact released on 17 February 2016. This is yet another reference for a preliminary ruling regarding interpretation of the private copying exception within Article 5(2)(b) of the   InfoSoc Directive , but with yet another interesting twist.  The referring court (the Austrian Supreme Court) is in fact asking the Court of Justice of the European Union (CJEU) to say whether  a claim for missed payment of ‘fair compensation’ under this provision can be considered akin to 'tort, delict or quasi-delict' within what is currently  Article 7(2) of Brussels I Recast   [formerly Article 5(3) of Brussels I] ...