©-LAW

  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...

  Today, after several months of waiting and with the deadline for the national transposition of the   DSM Directive  being just a weekend away (it will be on Monday, 7 June), the European Commission has issued its   Guidance on the application of Article 17 .  Here are 3 key highlights: Article 17 not a  sui generis  right of communication to the public An actual  sui generis  Kat First, the Guidance takes a different view from the  one  provisionally expressed in September 2020. It states that Article 17 is  lex specialis  to the  InfoSoc Directive , but also that the provision does not create a special/ sui generis  right of communication to the public compared to the one already contained in Article 3 of the latter: Article 17 does not affect the concept of communication to the public or of making content available to the public elsewhere under Union law, nor does it affect the possible application of Article...

  Is it a trade mark infringement to, e.g., advertise, offer, stock and ship goods carrying a sign identical or similar to a registered sign? The answer is not a difficult one to provide: Articles 10  TMD   and 9  EUTMR  clearly indicate that these activities amount to  prima facie  infringement. Things, however, get more complicated when the same question is asked with reference to an online marketplace, e.g., Amazon. Can such a platform be regarded as playing an active role and be directly liable for trade mark infringement if what is being promoted, sold, stocked and shipped through it is a counterfeit item? This, in a nutshell, is the key issue at the heart of the very interesting referral to the Court of Justice of the European Union (CJEU) in  Louboutin , C-148/21  (there is also another trade mark case concerning Louboutin,  C-184/21 , but the relevant questions are not yet available). This referral from Belgium was made in the co...

  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...

 A little over a year ago, The IPKat  reported   on the then fresh decision of the Paris Court of Appeal, which had upheld the decision at first instance in a copyright infringement case originally brought by the estate of photographer  Jean-François Bauret  against the well-known (also to copyright litigators) US artist  Jeff Koons  and the  Centre Pompidou . The news has reached this blog that  another copyright decision  has recently been rendered against Koons. Background The case is once again one of copyright infringement. It was originally brought by artist and photographer Franck Davidovici and concerned the alleged reproduction of his work  Fait d’Hiver , which he realized as a freelance artist for a 1984 Naf Naf advertisement, in Koons’s 1988 porcelain work, also titled  Fait d'Hiver . Davidovici's  Fait d'Hiver Koons's  Fait d'Hiver Koons’s work, which is part of the  Banality  series  (one w...

  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  ...

Miguel Ángel Perera Díaz in a  faena A bullfight (in Spanish:  corrida ; the final stages are called  faena ) is a contest that involves a bullfighter (a  matador ) and a bull, in which the former seeks to subdue, immobilize or kill the animal in accordance with a set of rules. The best-known type of bullfighting is the  Spanish-style one , which has been traditionally regarded as both a sport and performance art. In relation to the latter qualification of bullfighting, a question that has recently arisen is whether a bullfight might be regarded as a work protectable under copyright law. The Spanish Supreme Court  answered this question in the negative  last month, when it delivered its judgment in a longstanding copyright saga, which had first begun after a well-known Spanish matador,  Miguel Ángel Perera Díaz , was refused registration – by the Extremadura Copyright Registry – of a  faena  of his. Background The bullfight in quest...