|Birds May Not Have Rain Boots, But They Love Colorful Designs|
|Another Utilitarian Aspect of Rain Boots|
|Birds May Not Have Rain Boots, But They Love Colorful Designs|
|Another Utilitarian Aspect of Rain Boots|
Does a claim for payment of ‘fair compensation’ under Article 5(2)(b) of Directive 2001/29 ... on the harmonisation of certain aspects of copyright and related rights in the information society which, in accordance with Austrian law, is directed against undertakings that are first to place recording material on the domestic market on a commercial basis and for consideration constitute a claim arising from ‘tort, delict or quasi-delict’ within the meaning of Article 5(3) of Council Regulation ... 44/2001 ... on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?If you would like to comment on this case please email firstname.lastname@example.org by 9 February 2015. This will give the IPO a window of opportunity within which it will be able to consider whether the UK government should make submissions on this question or whether it should leave it to others. If you can't respond in time, don't panic:
We understand how difficult it is to provide detailed comments in the time available. The IPO has tight time limits in which to consider and provide advice to ministers on CJ cases. In order to help us provide the right advice, we just need a short email by the deadline stating whether you think the UK should intervene and some general points about how you think we should answer the questions.
You are welcome to follow this email up with more detailed comments after the deadline, which can be taken into consideration if we have chosen to submit observations or if we decide to attend a hearing.NOTE: since this piece was posted, our friend and reader Axel Paul Ringelhann has furnished us with his English translation of the referring court's decision. Thanks so much!
|Gone, But Not Forgotten|
|a camera hogging koala|
|Top snapper Mr Binturong|
|Does Mrs Penguin get the credit?|
|Is it an aerial photo of the wilds of Canada? A close-up of a chunk of marble?|
Or a shot of a distant planet? No -- it's the surface of a cheese ...
|Silhouette comparisons of Jacobus Rentmeester's photo of Michael Jordan,|
left, and Nike's Jumpman logo, right. Taken from court documents
“This is the day you will always remember as the day you almost caught Captain Jack Sparrow”(Jack Sparrow, Pirates Of The Caribbean)
For many years, internet service providers (ISPs) have tried, and sometimes succeeded, to block access to The Pirate Bay (TPB), known as the world's largest illegal file-sharing site, in several countries around the world. However, this time, it’s “in real life” and not, as expected, on the internet, that thepiratebay.se domain was shut down.
Launched in September 2003, The Pirate Bay website has since been involved in a number of lawsuits, mainly accused of copyright infringement and of authorizing the infringement of its users. Eleven years later, on December 9, 2014, Swedish police carried out a raid at the Nacka Station data centre, in Stockholm, seizing a huge treasure: servers, computers, and other equipment. As a result, the site has been taken offline and dragged down several other popular BitTorrent services (i.e. open Internet application for content distribution) with it, such as EZTV, Zoink, Torrage.
As a consequence, many people have been looking for Pirate Bay alternatives. Following the raid, many Pirate Bay “copies” flourished. For instance, the IsoHunt.to, a de facto replacement of the original site that reached a settlement with MPAA stipulating $110 million reimbursement for damages in 2013, launched an OldPirateBay.org to “save the Freedom of information on the Internet” and to “keep on sharing”. They also launched “The Open Bay” initiative, a new torrent landscape, allowing anyone to create a Pirate Bay copy on his/her own domain.
Are we getting closer to the end of “the day” Swedish police will always remember as the day they almost caught The Pirate Bay? New elements shared by The Pirate Bay crew seem to indicate the resurrection of the site. A few days after the Police raid, TPB installed a countdown timer on the homepage indicating that something is about to happen on February 1, 2015. Recently, the TPB included the site's familiar look with the site's search bar, categories, and navigation elements.
Pirate Bay users expect full recovery. Film-makers and distributors, television, and various creative industries combating online copyright infringement are however hoping that the phoenix will not rise anew from the ashes. However, with just a few days of the countdown timer left, the site is showing much more signs of life than ever before.
‘Is Article 5(3) of [Regulation 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed by keeping a photograph accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled, there is jurisdiction onlyYesterday the CJEU ruled as follows:
– in the Member State in which the alleged perpetrator of the infringement is established; and
– in the Member State(s) to which the website, according to its content, is directed?’
Article 5(3) ... must be interpreted as meaning that, in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.While the jurisdictional side of the ruling has its upside, the notion that the court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated is a pain if it potentially means separate litigation in each of 28 jurisdictions to recoup damages on a country-by-country basis, particularly if the aggregated damage is substantial but the per-country damage is rather less so.
Distribution rightSignificantly, the InfoSoc Directive does not contain a proviso found in European trade mark legislation, notably in Article 7(2) of the Trade Mark Directive 2008/95, that exhaustion shall not apply
1. Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.
2. The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent.
where there exist legitimate reasons for the proprietor to oppose further commercialisation of the goods, especially where the condition of the goods is changed or impaired after they have been put on the market.The facts of our case, in short, run like this:
Allposters, through its websites, markets posters and other reproductions depicting the works of famous painters, which are covered by the copyright exploited by Pictoright. Among other products, Allposters offers its clients reproductions in the form of posters, framed posters, posters on wood and images on canvases. In order to produce an image on canvas, a synthetic coating (laminate) is first applied [by Allposters] to a paper poster depicting the chosen work [for which the copyright is managed by Pictoright]. Next, the image on the poster is transferred from the paper to a canvas by means of a chemical process. Finally, that canvas is stretched over a wooden frame. The image of the work disappears from the paper backing during the process.The Hoge Raad der Nederlanden referred the following questions to the CJEU for a preliminary ruling:
‘(1) Does Article 4 of Directive 2001/29 govern the answer to the question whether the distribution right of the copyright holder may be exercised with regard to the reproduction of a copyright-protected work which has been sold and delivered within the [EEA] by or with the consent of the rightholder in the case where that reproduction had subsequently undergone an alteration in respect of its form and is again brought into circulation in that form?Yesterday the CJEU answered this battery of questions with some brevity:
(2) (a) If the answer to Question 1 is in the affirmative, does the fact that there has been an alteration as referred to in Question 1 have any bearing on the answer to the question whether exhaustion within the terms of Article 4(2) of [Directive 2001/29] is hindered or interrupted?
(b) If the answer to Question 2(a) is in the affirmative, what criteria should then be applied in order to determine whether an alteration exists in respect of the form of the reproduction which hinders or interrupts exhaustion within the terms of Article 4(2) of [Directive 2001/29]?
(c) Do those criteria leave room for the criterion developed in Netherlands national law to the effect that there is no longer any question of exhaustion on the sole ground that the reseller has given the reproductions a different form and has disseminated them among the public in that form (judgment of the Hoge Raad of 19 January 1979 in Poortvliet, NJ 1979/412)?’
Article 4(2) of Directive 2001/29 ... must be interpreted as meaning that the rule of exhaustion of the distribution right set out in Article 4(2) of Directive 2001/29 does not apply in a situation where a reproduction of a protected work, after having been marketed in the European Union with the copyright holder’s consent, has undergone an alteration of its medium, such as the transfer of that reproduction from a paper poster onto a canvas, and is placed on the market again in its new form.A rather fuller note on this decision by fellow blogger Eleonora, also summarising the not-yet-in-English Opinion of the Advocate General, can be found on the IPKat here (Eleonora has promised more to come ...). Meanwhile, this blogger will confine himself to the observations that (i) the CJEU appears to have reached the same conclusion as would have been reached in an action for trade mark infringement, notwithstanding the absence of a specific provision along the lines of Article 7(2) of the Trade Mark Directive and that (ii) the term 'moral rights' appears just once, incidentally, in the ruling, while it seems that this ruling will be of particular use and interest to those seeking to resist the distribution of tangible products on the basis of infringement of the right to object to distortion or mutilation of their original works.