Poles pose Enforcement Directive question on the assessment of copyright damages

Case C-367/15 Stowarzyszenie Oławska Telewizja Kablowa is now winging its way from the Sąd Najwyższy (that's the Polish for "Supreme Court") to the Court of Justice of the European Union (CJEU) in Luxembourg. The question posed for the CJEU's guidance runs like this:

Is Article 13 of Directive 2004/48 ... on the Enforcement of Intellectual Property Rights to be interpreted as meaning that the rightholder whose economic rights of copyright have been infringed may seek redress for the damage which it has incurred on the basis of general principles, or, without having to prove loss and the causal relationship between the event which infringed its rights and the loss, may seek payment of a sum of money corresponding to twice the amount of the appropriate fee, or, in the event of a culpable infringement, three times the amount of the appropriate fee, whereas Article 13 of Directive 2004/48 states that it is a judicial authority which must decide on damages by taking into account the factors listed in Article 13(1)(a), and only as an alternative in certain cases may set the damages as a lump sum, taking into consideration the elements listed in Article 13(1)(b) of that directive? Is the award, made at the request of a party, of damages as a pre-determined lump sum corresponding to twice or three times the amount of the appropriate fee permissible pursuant to Article 13 of the directive, regard being had to the fact that recital 26 of the preamble thereto states.

For those without photographic memories or who can't be bothered to follow the link above, Article 13 reads as follows:

1. Member States shall ensure that the competent judicial authorities, on application of the injured party, order the infringer who knowingly, or with reasonable grounds to know, engaged in an infringing activity, to pay the rightholder damages appropriate to the actual prejudice suffered by him/her as a result of the infringement. When the judicial authorities set the damages:

(a) they shall take into account all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement; or

(b) as an alternative to (a), they may, in appropriate cases, set the damages as a lump sum on the basis of elements such as at least the amount of royalties or fees which would have been due if the infringer had requested authorisation to use the intellectual property right in question.

2. Where the infringer did not knowingly, or with reasonable grounds know, engage in infringing activity, Member States may lay down that the judicial authorities may order the recovery of profits or the payment of damages, which may be pre-established.

This blogger notes that at last there appears to be an increased level of interest in the deeper meaning of this hitherto ignored Directive, which was the subject of a recent JIPLP-GRUR seminar reported here and here.

Here's Mark Schweizer's Katnote on this reference.

If you would like to send a comment on this case which might induce the UK government to make a submission, please email [email protected] by 16 November 2015.

Digitised out-of-print books and authors' rights: a new question for the CJEU

Case C-301/15 Soulier et Doke is on its way from France to Luxembourg for a ruling by the Court of Justice of the European Union (CJEU). The topic involves collecting societies and the right to authorise the reproduction and the representation in digital form of out-of-print books. The court asks:

Do the provisions ... of Directive 2001/29 [the InfoSoc Directive] preclude legislation… that gives approved collecting societies the right to authorise the reproduction and the representation in digital form of ‘out-of-print books’, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that it lays down?

As usual, the UK Intellectual Property Office has to take a position on whether the government should be advised to enter the fray or not. Your opinion may therefore be helpful. If you would like to comment on this case, just email [email protected] by no later than Friday 7 August 2015.

Questions from Coimbra as yet another reference is made to the CJEU

From Axel Paul Ringelhann comes news of another copyright-related reference to the Court of Justice of the European Union for a preliminary ruling. It's Case C-151/15 Sociedade Portuguesa de Autores CRL v Ministério Público and it's a request from the Tribunal da Relação de Coimbra, Portugal. Again, its theme is that of "communication of works to the public". Asks the referring court:

1. Is the concept of the communication of works to the public within the meaning of Article 3(1) of Directive 2001/29 [the InfoSec Directive] to be interpreted as encompassing the transmission of broadcast works in commercial premises such as bars, cafes, restaurants or other such establishments with similar characteristics, via television receiving apparatus, where the transmission of such works is amplified by speakers or amplifiers, thus constituting, in that context, a new use of copyright-protected works?

2. Does the use of speakers and/or amplifiers, that is, technical means other than television broadcast reception equipment, to amplify broadcast sound have any affect on the answer to the first question?

This blogger will confine himself to the observation that technology-neutral legislation such as Article 3(1), which reads

"Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them",

has not succeeded as a means of preventing technology-specific questions being asked of the CJEU, since -- however general the terms of the legislation may be -- communication to the public is a phenomenon that is in practice anything but technology-neutral.

Sexies appeal and natural persons: more questions for the CJEU

Case C-110/15 Nokia Italia and others is a reference by the Consiglio di Stato, Italy, to the Court of Justice of the European Union (CJEU) of a request for a preliminary ruling on the compatibility of Italian legislation on copyright, and in particular on compensation due to holders of copyright-related rights for the private reproduction, on any medium of phonograms and videos made by natural persons for personal use (ie not for profit), with Directive 2001/29 -- the InfoSoc Directive. 

The questions referred to the CJEU are

1. Does Community law, and in particular recital 31 in the preamble to, and Article 5(2)(b) of, Directive 2001, preclude national rules (in particular Article 71 sexies of the Italian Legge sul Diritto d’autore (Law on copyright), in conjunction with Article 4 of the [Decree of] 30 December 2009) that provide that, in the case of media and devices acquired for purposes clearly unrelated to private copying (that is to say, for professional use only), determination of the criteria for ‘ex ante’ exemption from the levy is left to private negotiation, or ‘free bargaining’, with particular regard to the ‘application protocols’ referred to in Article 4 above, failing any general provisions and any guarantee of equal treatment between the [notorious famous Italian collecting society] SIAE and persons obliged to pay the compensation, or their trade or professional associations?

2. Does Community law, and in particular recital 31 in the preamble to, and Article 5(2)(b) of, Directive 2001/29, preclude national rules (in particular Article 71 sexies of the Italian Law on copyright, in conjunction with the [Decree of] 30 December 2009, and the instructions on reimbursement given by the SIAE, that provide that, in the case of media and devices acquired for purposes clearly unrelated to private copying (that is to say, for professional use only), reimbursement may be requested only by the final user rather than the producer of the media and devices?

For the record, Recital 31 of the Directive reads like this:

(31) A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.

and Article 5(2)(b) of the Directive runs thus:

2. Member States may provide for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:

...(b) in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned;

The UK Intellectual Property Office invites comments. If you have any, just email to the Office at [email protected] by not later than 11 May 2015 (that's nearly two weeks -- quite a generous time scale by traditional standards). Your comment may, just may, inspire the UK government to make a  submission before the Court.

"Lending" online: more questions for the Court of Justice

On 1 April 2015, the District Court of The Hague passed judgement in the case between Vereniging van Openbare Bibliotheken (Netherlands Public Library Association, VOB) and Stichting Leenrecht (the Public Lending Right Office, SL). The District Court referred questions to the Court of Justice of the EU on online lending of e-books by public libraries. The questions are listed on the website of Dirk Visser's law firm Visser Schaap & Kreijger here. For convenience we reproduce them here:

1. Should Articles 1(1), 2(1)(b) and 6(1) of Directive 2006/115 be interpreted in such a way that "lending", as referred to in the directive, includes making copyright novels, anthologies of stories, biographies, travelogues, children's books and youth literature available for use without direct or indirect economic or commercial advantage by establishments accessible to the public

- by placing a copy in digital form (reproduction A) on the establishment's server and making it possible for a user to reproduce it on his own computer by downloading (reproduction B),
- such that the copy made by the user during the download (reproduction B) is no longer usable after a limited period of time, and
- such that other users are not able to download the copy (reproduction A) onto their computer during this time?

2. If the first question must be answered in the affirmative, does Article 6 of Directive 2006/115 and/or any other provision of European Union law preclude Member States from attaching the condition, to the application of the restriction on the lending right laid down in Article 6 of Directive 2006/115, that the copy of the work (reproduction A) made available by the establishment has been put into circulation by the first sale or other transfer of ownership of that copy in the European Union by the rightholder or with his consent within the meaning of Article 4(2) of Directive 2001/29?

3. If the second question must be answered in the negative, does Article 6 of Directive 2006/115 impose other requirements on the origin of the copy made available by the establishment (reproduction A), such as, for example, the requirement that that copy has been obtained from a legal source? 

4. If the second question must be answered in the affirmative, must Article 4(2) of Directive 2001/29 be interpreted in such a way that the first sale or other transfer of ownership of subject-matter, as referred to in that paragraph, also means the making available of digital copies of copyrighted novels, anthologies of stories, biographies, travelogues, children's books and youth literature at a distance by means of downloading for use for an unlimited period of time?

A full text translation of the decision can be accessed by clicking here.  Thanks, Dirk -- and many apologies for not posting this earlier.  This blogger is still playing catch-up with his Easter emails ...

On this topic, see also Eleonora's Katpost of 15 September last, here.

InfoSoc Directive fair compensation claims and jurisdiction: your chance to influence things

The UK Intellectual Property Office (IPO) has just been reminding us of the forthcoming Court of Justice the European Union (CJEU) reference in Case C-572/14 Austro-Mechana. This is a request for a preliminary ruling from the Austrian Oberster Gerichtshof on the following question:

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 [email protected] 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!

Mies's Pieces: when an offer for sale might be "distribution"

Ludwig Mies van der Rohe:
so much name, so little chair ...

Our friends in Curia have spared us an English version of Case C-516/13 Dimensione Direct Sales srl, Michele Labianca v Knoll International SpA, a Court of Justice of the European Union reference upon which Advocate General Pedro Cruz Villalón delivered his Opinion this morning. For those who enjoy a more detailed and lucid account of this Opinion than this blogger can provide, fellow blogger Eleonora -- a talented linguist as well as a copyright enthusiast -- has posted this analysis on the IPKat.

This is a reference from the German Bundesgerichtshof on the InsoSoc Directive, asking:

1. Does the distribution right under Article 4(1) of Directive 2001/29 include the right to offer the original or copies of the work to the public for sale?

If the first question is to be answered in the affirmative:

2. Does the right to offer the original or copies of the work to the public for sale include not only contractual offers, but also advertising measures?

3. Is the distribution right infringed even if no purchase of the original or copies of the work takes place on the basis of the offer?

What is this case all about? In brief, Knoll International SpA is the Italian bit of the Pennsylvania-based Knoll International Group, which makes and sells furniture worldwide. This furniture includes copyright-protected items designed by Marcel Breuer and Ludwig Mies van der Rohe. Knoll holds the exclusive rights of exploitation of furniture designed by Marcel Breuer and non-exclusive rights in the furniture of Ludwig Mies van der Rohe.

Dimensione (the company involved in Case C-5/11 Donner) is an Italian company managed by Labianca; it distributes designer furniture direct sales and offers furniture for sale on its website, in German among other languages. In 2005 and 2006, Dimensione advertised its services in Germany in various newspapers and magazines as well as a flyer which stated:

"Buy your furniture in Italy and pay only when removing or delivery by a carrier entitled to receive payment (service provided on request)".

Knoll International seised [Google Translate offers "grabbed"] the Landgericht Hamburg (Germany), applying for injunctive relief and the disclosure of information. An order was granted in Knoll's favour and this decision was affirmed on appeal.  Dimensione then appealed further to the Bundesgerichtshof. which asked the questions above.

This morning the Advocate General advised the Court of Justice to rule that Article 4(1) of the InfoSoc Directive must be interpreted as meaning that the distribution right includes the right of the copyright owner of the original or copies of a copyright work to prohibit any person from offering the original or copies for sale to the public without consent, including where such offer has led to any acquisition, provided that such an offer was made with the clear intention to enter into contracts of sale or other act involving a transfer of ownership in them.

It's up to the Court of Justice to decide whether to adopt this Opinion or not; the odds are in favour of it doing so in light of its earlier case law -- though this is a bit of an affront to the notion of "distributing" as being actually moving something from one place to another.  This blogger confines himself to one short comment which is that we have become so used to thinking of copyright-infringing acts as being connected to the internet and communication technologies that it's refreshing to be reminded that it applies to solid objects too.

Fair compensation for private copying: another EGEDA reference

EGEDA is no stranger to this weblog, having featured in this post on Case C-387/09 Entidad de Gestión de Derechos de los Productores Audiovisuales (EGEDA) v Magnatrading S.L., a private copying "fair compensation" reference for a preliminary ruling from the Spanish Juzgado Mercantil that was lodged on 1 October 2009 and resolved by a brief Order just over a year later.  Another EGEDA "fair compensation" reference is in the air, as a media release from the UK Intellectual Property Office tells us:

CJ case: C-470/14: EGEDA and others

We have received notification of a new case referred to the Court of Justice of the European Union (CJEU): C-470/14: A reference from the Spanish Court concerning its domestic scheme for the payment of fair compensation for private copying.

The questions referred to the Court of Justice (CJ) for a preliminary ruling are:

1. Is a scheme for fair compensation for private copying compatible with Article 5(2)(b) of Directive 2001/29/EC where the scheme, taking as a basis an estimate of the harm actually caused, is financed from state resources, and the cost of compensation is therefore not borne by the users of those private copies?

2. If yes, is the scheme compatible with that provision where the total amount allocated via state resources to fair compensation for private copying has to be set within budgetary limits established for each financial year?

This case and the questions referred to the Court can also be viewed on our website at:

https://www.gov.uk/government/publications/references-to-the-european-court-of-justice/references-to-the-european-court-of-justice-2014

If you would like to comment on this case please e-mail [email protected] by 01 December 2014.

The media release adds the following information:

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.

If you are aware of any references to the Court of Justice that are not currently included on our website, you are also welcome to send us your views. If you choose to do this, please include clear information about the case to help us to identify it.

Further information on intellectual property CJ cases can be found on our website https://www.gov.uk/government/publications/references-to-the-european-court-of-justice.

Deckmyn, Suske en Wiske: the Advocate General's Opinion

Here's a guest post from Denise Verdoold (Banning, 's-Hertogenbosch, The Netherlands), whose combination of legal expertise and linguistic talent is brought to be on a piece of copyright litigation which Eleonora has been stalking on the IPKat (here and here) but which has hitherto escaped the attention of this blog.  Thanks, Denise!

AG Cruz Villalón defines criteria parody exception under Infosoc

On 22 May 2014, Advocate-General Cruz Villalón delivered his opinion in Case C-201/13 Deckmyn v Vandersteen. Although unfortunately not available in English -- the link therefore refers to the Curia case information section so readers can choose to view the opinion in any of the 21available languages taking their fancy -- the conclusion is worth mentioning as AG Cruz Villalón sets out the requirements which according to him the autonomous European concept of parody should meet. Especially with regard to the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which will enter into force in October 2014, thereby introducing the parody exception into English copyright law, an English note on the AG’s opinion seems valuable. 

In Deckmyn v Vandersteen, the Belgian Supreme Court referred questions of interpretation to the CJEU concerning the nature and meaning of the term ‘parody’ as laid down in article 5(3)(k) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (Infosoc Directive).

The case concerns a publicly distributed calendar on the front of which a reproduction is pictured of the cover of a Spyke and Suzy (‘Suske en Wiske’ in Dutch) album. Certain changes were made to the original cover so that the reproduction promotes a political message of the Flemish nationalist political party Vlaams Belang. Below are included a picture of the original cover (above, right) and a picture of the reproduction (left).

           

According to the heirs and right holders of Willebrord Vandersteen, the author of Spike and Suzy, the reproduction infringes the copyright in the original cover. The court of first instance upheld the heirs’ claims, stating that the distribution of the calendar constituted an infringement of the copyright in the original cover. The defendants appealed. The Court of Appeal of Brussel referred three questions of interpretation to the CJEU:

1.         Is the concept of 'parody' an independent/ autonomous concept in European Union law?

2.         If so, must a parody satisfy the following conditions or conform to the following characteristics:

-    the display of an original character of its own (originality);

-    and such that the parody cannot reasonably be ascribed to the author of the original work;

-    be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;

-    mention the source of the parodied work?

3.          Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?

Prior to presenting his answers, the AG stresses that the questions do not concern moral rights, the three-step test (exceptions to the exclusive rights of the author may only be created in limited circumstances and may not conflict with the normal exploitation of the work or be prejudicial to the legitimate interests of the author) or the scope of the reservation made by Belgian laws to include the parody exception in Belgian copyright law. These aspects fall outside the scope of application of Infosoc and are therefore left to the exclusive jurisdiction of the national courts.  

Proceeding to the referred questions, the AG answers the first one in the affirmative because Infosoc refrains from explicitly referring to the laws of the Member States to define the term ‘parody’. If this is the case, established case law determines that a concept is to be qualified as an autonomous concept in EU law. Furthermore, the AG points out the objective of Infosoc is to harmonise certain aspects of copyright, supporting the conclusion of ‘parody’ being an autonomous concept.

The AG considers the second and third question together, as these essentially concern the characteristics and prerequisites that a work has to meet in order for it to be considered a parody. According to the AG, a work needs to bear the following characteristics for it to be considered a parody under Infosoc: 

-           The parody needs to be an original work. The AG explains that a parody always consists of both elements which are clearly recognisable as being taken from the parodied work and elements which are original. Hence, parodies can be described as being both a copy and a creation. It is for the national courts in the Member States to determine, the AG continues, whether the parody either bears sufficient creativity as opposed to the parodied work, or should merely be regarded as a copy bearing insignificant alterations. 

-           In order for a parody to be lawful, it must not be confused with the original, parodied work. The combination of the original elements and the elements taken from the parodied work as vested in the parody may not cause confusion with the original work, the AG points out. 

-           The parody must have a humorous or mocking effect or intention. 

-           Courts in the Member States should take account of fundamental rights such as the right to freedom of expression when determining the allowability of a parody under Infosoc. A balance should be struck between the rights involved in a particular case. For this purpose, the AG comments that, in principle, the balance should be struck in favour of the right to freedom of expression. A work may therefore, according to the AG, not be excluded from the parody exception when the message it carries out is not shared by the author of the parodied work or a large part of the public. However, a parody should not carry out a message which radically opposes the most deeply rooted values of society. Therefore, the message carried out by the parody should be taken into account when parodying a work.

In this light, the AG remarks that the Member States enjoy a certain margin of appreciation when assessing whether the parody in issue bears the elements set out above.

We will now have to wait for the decision of the CJEU in this case. If the CJEU follows the opinion of the AG, more clarity will have been provided on the parody exception as laid down in Infosoc. However, it will be for the courts in the Member States to decide whether a parody meets the criteria formulated by the AG. Particularly the conceptualisation of the required absence of confusion and the application of the balancing exercise with respect to fundamental rights will prove interesting issues in practice.

Database Rights, Dutch Law, Contract Law and Ryanair

Here's a knotty case.  Not quite copyright, but eiusdem generis enough to be of interest to readers of this blog.

This blogger has only just become aware of case number C-30/14  with which the CJEU has been seized since 22 January, as fully reported in January in the astonishingly brilliant EU Law Radar Blog here.

In it, the Dutch Supreme Court has asked the CJEU to opine on the compatibility of Dutch copyright/database rights law with the European law acquis as well as the question as to whether contractual restrictions (in Ryanair's terms of use) can trump the lawful user exception under the Database Directive.

PR Aviation, the operators of a website wegolo.com [we go low - geddit?] run an airline comparison site.  They allow users to search across multiple airlines, including Ryanair - and Ryanair, not being happy about this, sued PR Aviation.  Note that this does not seem to be a case of scraping - as the Dutch lower court found an allegation of scraping not to have been proved.

The Dutch courts appear to have found that the Ryanair booking system was protected neither by copyright nor by the sui generis rights under the Database Directive but it is protected as a database under an arcane provision of the Dutch Copyright Act of 1912 which the Dutch parliament expressly legislated to survive the implementation of the Database Directive, even though it affords protection to content that is unprotectable under that Directive.

The Dutch Supreme Court then looked at the Directive and said that, even if the 1912 law was compatible with the Directive (a point about which there is considerable doubt - as even the court was willing to admit), then the rights of lawful users under Articles 6 and 8 of the Database Directive and, importantly, the prohibition on contractual override under Article 15 of the Directive as a matter of principle also apply to protect users of the databases that are not protected by the Directive.  So the Dutch court's approach seems to be that the exceptions set out in the Directive apply to a broad range of databases, even beyond those which are granted IP protection by the Directive.

They therefore asked the CJEU the following question (and thanks to EU Law Radar's Stephen Vousden for the informal translation)

Does the scope of the Database Directive also cover online databases that are neither protected in copyright under Chapter II of the Directive nor protected as a sui generis right under Chapter III of the Directive and yet where the freedom to use such databases cannot be restricted in contract by dint of the (whether or not corresponding) application of Articles 6(1) and Article 8, when read together with Article 15 of the Database Directive?

This Blogger would suggest the answer that (i) after SportRadar  and Svensson the Court will find that the continued protection of rights that are not contemplated under the Database Directive is not compatible with the harmonisation principle of the Directive but that (ii) a Member State court should therefore not in any event deny the protection of Article 15 to a user of a database, regardless of whether that Directive is protected under the Directive, or under separate legislation incompatible with the Directive.   It seems rather unlikely that the Court will rule that the proper construction of the Directive is that Article 15 applies to all databases, whether protected under the Directive or otherwise - but anything is possible.

UPC Telekabel v Constantin and Wega: AG opines on site blocks

It's not yet available in English, and our colleague Eleonora has already put it centre-stage with her stunning breaking news post on the IPKat, but this morning's publication on the Curia website of Advocate General Cruz Villalón’s Opinion in Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH und Wega Filmproduktionsgesellschaft GmbH deserves notice on this blog too, if only so that people checking its database of notes on rulings and opinions will see that we haven't forgotten it. Fortunately the Curia website carries a media release on today's Opinion, reproduced here in relevant part:

"According to Advocate General Cruz Villalón an internet provider can be required to block access by its customers to a website which infringes copyright

Such a court injunction must refer to specific blocking measures and achieve an appropriate balance between the opposing interests which are protected by fundamental rights

According to EU law, Member States are to ensure that copyright holders or holders of related rights are able to apply for an injunction against intermediaries whose services are used by a third party to infringe their rights [referencing Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society]. It is already established that internet providers ["Internet access services", referring to Case C-557/07 LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten and Case C-70/10 Scarlet Extended. The same applies to operators of social networking platforms: see Case C-360/10 SABAM] can in principle be regarded as intermediaries and therefore as persons against which such injunctions, which are aimed at bringing to an end infringements already committed and at preventing further infringements, can be granted. In practice, the operators of illegal websites and the internet providers which make them available online are frequently based outside Europe or conceal their identity, making it difficult to pursue them before the courts.

The Austrian Oberster Gerichtshof ... seeks to ascertain ...  whether a provider which provides internet access only to users of an illegal website is to be regarded as an intermediary in that sense, that is to say as an intermediary whose services are used by a third party – such as the operator of an illegal website – to infringe copyright, meaning that an injunction can also be granted against it. It also seeks clarification of the EU rules on the content and procedure for the issuing of such an injunction.

The Oberster Gerichtshof is called upon to decide ... in respect of a legal dispute between UPC Telekabel Wien, a major Austrian internet provider ... and Constantin Film Verleih and Wega Filmproduktionsgesellschaft .... On application by Constantin Film and Wega, the courts ... granted an interim injunction – in the case of the appellate court without mentioning specific measures to be taken – prohibiting UPC from allowing its customers to access kino.to. By accessing that website, users were able to view by streaming or to download films the rights in respect of which are held inter alia by Constantin Film and Wega, without their consent [In June 2011.... kino.to closed after the German prosecuting authorities took action against its operators]. UPC has no legal relationship with the operators of the website and made neither internet access nor storage space available to them. According to the ... Oberster Gerichtshof, it can, however, be assumed with near certainty that individual UPC customers availed themselves of the kino.to offer.

In his Opinion today, Advocate General Pedro Cruz Villalón takes the view that the internet provider of the user of a website which infringes copyright is also to be regarded as an intermediary whose services are used by a third party – that is the operator of the website - to infringe copyright and therefore also as a person against whom an injunction can be granted. That is apparent from the wording, context, spirit and purpose of the provision of EU law.

The Advocate General is also of the view that it is incompatible with the weighing of the fundamental rights of the parties [the fundamental right of the copyright holder to property vresus the provider’s freedom to conduct a business and its customers’ freedom of expression and information, on which the provider can also rely] to prohibit an internet service provider generally and without ordering specific measures [eg an IP block, where requests are no longer forwarded to the blocked IP address, or a DNS block. DNS (Domain Name System) blocks concern domain names which are used instead of unwieldy IP addresses by users. DNS servers, which are operated by every provider, ‘translate’ domain names into IP addresses. In the case of a DNS block, such translation is prevented] from allowing its customers to access a particular website that infringes copyright. That also applies where the provider can avoid incurring a penalty for breach of that prohibition by showing that it has taken all reasonable steps to comply with the prohibition. Advocate General Cruz Villalón underlines in that connection that the provider of the user has no connection with the operators of the website that infringes copyright and has not itself infringed the copyright.

However, a specific blocking measure imposed on a provider relating to a specific website is not, in principle, disproportionate only because it entails not inconsiderable costs but can easily be circumvented without any special technical knowledge. It is for the national courts, in the particular case, taking into account all relevant circumstances, to weigh the fundamental rights of the parties against each other and thus strike a fair balance between those fundamental rights. When weighing the fundamental rights it must however be taken into account that in future action could be taken in numerous similar cases against any provider before the national courts. Advocate General Cruz Villalón also points out that rightholders must, in so far as possible, claim directly against the operators of the illegal website or their providers".

Going to GRUND

Autumn: the season of mists,
mellow fruitfulness ... and a new
crop of CJEU references

Case C-458/13 GRUND E.A is yet another reference to the Court of Justice of the European Union that has embarrassingly slipped through this blogger's radar while he was busy pursuing other matters. Still, it's never to late to give it an airing. According to the UK Intellectual Property Office this is a request for a preliminary ruling [from where? GRUND does sound rather German, but German is an official language of more than one EU Member State ...] in a case concerning an adaptor [or should that be 'adapter'? No, both are correct, in Oxford at any rate] designed to circumvent copyright protection on a handheld video game console. The question referred is:

"Does Article 12(a) of Directive 2001/29 on the harmonisation of certain aspect of copyright and related rights in the information society ... preclude the application of a domestic provision which transposes Article 6(2) of the Directive into national law if the technological measure in question protects not only works or other subject matter, but also computer programs?"

If any reader knows a bit about the background, this blog will be delighted to hear about it too.

 If you would like to comment on this case, and tell the UK government what if anything they should be thinking about these questions, please email [email protected] by 18 October 2013.

Papasavvas heads for CJEU

The attention of this member of the 1709 Blog team has been drawn to another set of questions that a national court has referred to the Court of Justice of the European Union for a preliminary ruling -- a further sign of the increasing uncertainty at national level as to what are the legal principles that national courts are to apply consistently across the 28 Member States when dealing with old problems which roost in the lofty heights of the so-called new technologies [which are not really so new any more]. This reference is Case C-291/13 PAPASAVVAS E.A, a reference from Cyprus. This case was swiftly posted here on the EU Law Radar weblog and, as readers can see, it's a reference relating to Directive 2000/31 -- the E-Commerce Directive.

The questions referred to the Court of Justice are as follows:

1. Bearing in mind that the laws of the Member States on defamation affect the capacity to provide information services by electronic means both at national level and within the European Union, might those laws be regarded as restrictions on the provision of information services for the purposes of applying Directive 2000/31?

2. If the answer to Question 1 is in the affirmative, do the provisions of Articles 12, 13 and 14 of Directive 2000/31, on the question of liability, apply to private civil matters, such as civil liability for defamation, or are they limited to civil liability in matters concerning business to consumer transactions?

3. Bearing in mind the purpose of Articles 12, 13 and 14 of Directive 2000/31 relating to the liability of information society service providers and the fact that, in many Member States, an action must exist in order for a prohibitory injunction to be granted which will remain in force pending full completion of the proceedings, do those articles create individual rights which may be pleaded as defences in law in a civil action for defamation, or must they operate as an obstacle in law to the bringing of such actions?

4. Do the definitions of 'information society service' and 'service provider' in Article 2 of Directive 2000/31 and Article 1(2) of Directive 98/34 [laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services], as amended by Directive 98/48, cover online information services the remuneration for which is provided not directly by the recipient, but indirectly by means of commercial advertisements posted on the website?

5. Bearing in mind the definition of 'information service provider', laid down in Article 2 of Directive 2000/31 and Article 1(2) of Directive 98/34, as amended by Directive 98/48, could the following, or any of them, be regarded as a 'mere conduit' or 'caching' or 'hosting' for the purposes of Articles 12, 13 and 14 of Directive 2000/31:

[or 5]

(a) a newspaper that operates a free website on which the online version of the printed newspaper, with all its articles and advertisements, is posted in pdf format or another similar electronic format;

(b) an online newspaper which is freely accessible but the provider obtains money from commercial advertisements posted on the website, where the information contained in the online newspaper comes from the newspaper's staff and/or freelance journalists; 

(c) a website which provides (a) or (b) above for a subscription?

Substitute 'copyright infringement' for 'defamation' and you have an interesting topic or two for discussion. If you want to tell the UK government what you think, and whether it should seek to make representations to the Court of Justice, just email [email protected] by 25 July 2013.

C More: does anyone know more?

This blogger has just received an email circular from the UK Intellectual Property Office (IPO) which, in relevant part, reads as follows:

ECJ [ie CJEU] case: C-279/13: C MORE ENTERTAINMENT

We have received notification of a new case referred to the Court of Justice: C-279/13. A request for a preliminary ruling in a case which concerns an appeal against prosecution in Sweden where it was alleged that the Defendant had breached the rights of C More Entertainment to broadcast a webcast of two ice hockey matches and made them available to the public.

This case and the questions referred to the court can be viewed on our website at:

http://www.ipo.gov.uk/pro-policy/policy-information/ecj/ecj-2013.htm

If you would like to comment on this case please e-mail [email protected] by 08 July 2013 [That's only two Mondays from today, but ...].

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 ECJ 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.

If you are aware of any references to the ECJ that are not currently included on our website, you are also welcome to send us your views. If you choose to do this, please include clear information about the case to help us to identify it.

Further information on intellectual property ECJ cases can be found on our website http://www.ipo.gov.uk/ecj.htm

The IPO circular doesn't quote the questions verbatim, but they appear to look like this:

"1. Does the expression communication to the public, within the meaning of Article 3(1) of the Information Society Directive, include measures to make available on a website open to the public a clickable link to a work which is broadcast by the holder of the copyright in that work?

2. Is the manner in which the linking is done relevant to the answer to question 1?

3. Is it relevant if the access to the work to which the linking is done is in any way restricted?

4. May the Member States give wider protection to the exclusive right of rightholders by enabling ‘communication to the public' to cover a greater range of acts than provided for in Article 3(1) of the Information Society Directive?

5. May the Member States give wider protection to the exclusive right of authors by enabling ‘communication to the public’ to cover a greater range of acts than provided for in Article 3(1) of the Information Society Directive?"

This reference, and the Swedish litigation leading to it, have so far passed this blogger by. If any readers can supply further background details, can they please share them with us!

TVCatchup: landmark or mere technicality? Either way, we have a ruling

Today the Court of Justice of the European Union gave its ruling in Case C-607/11 ITV Broadcasting Ltd and Others v TVCatchup Ltd, on a reference for a preliminary ruling from the High Court, England and Wales. To be honest, there were plenty of tell-tale signs that this was not the most difficult or controversial case for the CJEU to process.  In the first place, the judgment is not a long one by copyright standards -- just 48 paragraphs inclusive of the recitations of law and the relevant facts. Secondly, the Court felt that it could manage quite well even without the benefit of an Opinion from the Advocate General.  Thirdly, the time taken from reference to ruling is a creditably speedy 15 months and a bit.

Readers who want more detail can click through to the full text of the decision, but many will get as much as they need or want from the Curia's helpful media release:

Television broadcasters may prohibit the retransmission of their programmes by

another company via the internet 

That retransmission constitutes, under certain conditions, ‘a communication to the public’ of works which must be authorised by their author 

EU law [Directive 2001/29 -- the InfoSoc Directive] seeks to establish a high level of protection for authors of works, allowing them to obtain an appropriate reward for the use of those works, including on the occasion of communication to the public. To that end, authors have an exclusive right to authorise or prohibit any communication of their works to the public. 

TVCatchup Ltd (‘TVC’) offers an internet television broadcasting service. This service permits its users to receive, via the internet, ‘live’ streams of free-to-air television broadcasts. TVC ensures that its subscribers can obtain access only to content which they are already legally entitled to watch in the United Kingdom by virtue of their television licence. The terms to which users must agree include the possession of a valid TV licence and a restriction of use of TVC services to the United Kingdom alone. The TVC website has the facility to authenticate the user’s location and thereby to refuse access where the conditions imposed on users are not satisfied. 

Several British commercial television broadcasters take exception to the distribution by TVC over the internet, substantially in real time, of their television broadcasts. They have for that reason brought proceedings against TVC before the High Court of Justice (England and Wales) (Chancery Division) for breach of their copyright in their broadcasts and films, alleging, inter alia, that there is a communication to the public which is prohibited both by national law and by Directive 2001/29. 

The High Court asks the Court of Justice whether there is a communication to the public, within the meaning of Directive 2001/29, in the case where an organisation such as TVC streams over the internet broadcasts to members of the public who would have been entitled to access the original broadcast signal using their own television sets or laptops in their own homes. 

First of all, the Court of Justice determines the meaning of the concept of communication’
and ascertains whether, in the present case, TVC’s activity comes within the scope of that concept. Directive 2001/29 states that the right of communication to the public covers any transmission or retransmission of a work to the public not present at the place where the communication originates, by wire or wireless means, including broadcasting. In addition, authorising the inclusion of protected works in a communication to the public does not exhaust the right to authorise or prohibit other communications of those works to the public. The Court accordingly finds that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must, as a rule, be individually authorised by its author. 

Accordingly, given that the making of works available through the retransmission of a terrestrial television broadcast over the internet uses a specific technical means different from that of the original communication, that retransmission must be considered to be a ‘communication’ within the meaning of Directive 2001/29. Such a retransmission cannot therefore be exempt from authorisation by the authors of the retransmitted works when these are communicated to the public. 

Second, the Court of Justice ascertains whether the protected works have in fact been
communicated to a ‘public’. According to the Court’s case-law, the term ‘public’ refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons. The Court points out that the cumulative effect of making the works available to potential recipients should be taken into account and that, in that connection, it is in particular relevant to ascertain the number of persons who have access to the same work at the same time and successively. 

The Court finds that, in the present case, the retransmission of the works over the internet is aimed at all persons resident in the United Kingdom who have an internet connection and who claim to hold a television licence in that State. Those persons may access the protected works at the same time, in the context of the ‘live streaming’ of television programmes over the internet. Thus, that retransmission is aimed at an indeterminate number of potential recipients and implies a large number of persons. Consequently, the Court holds that, by the retransmission in question, the protected works are indeed communicated to a public within the meaning of Directive 2001/29. 

Accordingly, the Court answers that the concept of ‘communication to the public’, within the meaning of Directive 2001/29, must be interpreted as covering a retransmission of the works included in a terrestrial television broadcast, where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.

The best thing about this decision is not so much the ruling which, in this blogger's opinion, was never seriously in doubt, but in the firm and decisive manner in which the CJEU expressed it. Rebecca Swindells (Field Fisher Waterhouse, quoted by Bloomberg), observed that it would have been a "real shock", had it gone the other way. Bruce Pilley, a director of London-based TV Catchup quoted by the same agency, did not sound too downcast, though: “Whatever the outcome of the ECJ, TVCatchup has already emerged as the clear victor from years of legal wrangling, and has established itself as the de facto online broadcast platform for Web, tablet, mobile and numerous other applications.” So far as The Inquirer was concerned, the decision turned on a mere technicality, that TV Catchup's services might be received by customers who were not holders of TV licences.  The Financial Times viewed the ruling not as a technicality but as a landmark, quoting Harbottle & Lewis's Tony Ballard: "For years, nobody has known whether the unauthorised retransmission of live TV on the internet infringes copyright. The court today . . . decided that it does.”

Copydan Båndkopi reference heads for Luxembourg

Case C-463/12 Copydan Båndkopi is the latest case to be referred to the Court of Justice of the European Union (CJEU) for preliminary rulings on a number of questions relating to fair compensation of right holders. The questions, cut-and-pasted from the UK Intellectual Property Office website, are as follows:

1. Is it compatible with Directive 2001/29/EC [the InfoSoc Directive] for Member States to have legislation which guarantees compensation for the rightholders for reproductions made using the following sources:

(1) files where the use in question is approved by the rightholders and paid for by the customer (licensed content from online shops, for example);

(2) files where the use in question is approved by the rightholders and not paid for by the customer (licensed content, for example, in connection with a marketing action);

(3) the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are not applied;

(4) the user’s own DVD, CD, MP3 player, computer, etc., where effective technological measures are applied;

(5) a third party’s DVD, CD, MP3 player, computer, etc.;

(6) unlawfully copied works from the Internet or other sources;

(7) files copied lawfully in some other way from, for example, the Internet (from lawful sources where no licence has been granted)?

2. How must effective technological measures be taken into account, (ref.Article 6 of the Directive) in the Member States’ legislation on compensation for rightholders (ref. Article 5(2)(b) of the Directive)?

3. In the calculation of compensation for private copying (ref. Article 5(2)(b) of the Directive), what constitutes ‘situations where the prejudice to the rightholder would be minimal’, as referred to in recital 35 in the preamble to the Directive, with the result that it will not be compatible with the Directive for the Member States to have legislation which provides for compensation for rightholders for such copying for private use (ref. in this connection the survey referred to in part 2 above)?

4. (a) If it is assumed that the primary or most important function of memory cards in mobile phones is not private copying, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

(b) If it is assumed that private copying is one of the several primary or essential functions of memory cards in mobile phones, is it compatible with the Directive for the Member States to have legislation which guarantees compensation for rightholders for copying on mobile phone memory cards?

5. Is it compatible with the concept of ‘fair balance’ in recital 31 in the preamble to the Directive and with the uniform interpretation of the concept of ‘fair compensation’ (ref. Article 5(2)(b) of the Directive), which must be based on ‘prejudice’, for the Member States to have legislation under which remuneration is collected for memory cards, whereas no remuneration is collected for internal memory such as MP3 players or iPods, which are designed and primarily used for private copying?

6. (a) Does the Directive preclude the Member States from having legislation which provides for the collection of remuneration for private copying from a producer and/or importer who sells memory cards to business concerns which sell the memory cards on to both private and business customers, without the producer’s and/or importer’s having knowledge of whether the memory cards have been sold to private or business customers?

(b) Is the answer to question 6(a) affected if provisions are laid down in a Member State’s legislation which ensure that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, that producers, importers and/or distributors, where the remuneration has nevertheless been paid, can have the remuneration for memory cards refunded in so far as they are used for professional purposes, and that producers, importers and/or distributors can sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration?

(c) Is the answer to questions 6(a) and 6(b) affected

(1) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors do not have to pay remuneration for memory cards used for professional purposes, but the concept of ‘professional purposes’ is interpreted as conferring a right of deduction applying only to undertakings approved by Copydan, whereas remuneration must be paid for memory cards used professionally by other business customers which are not approved by Copydan;

(2) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors, where the remuneration has in fact been paid (theoretically), can have remuneration for memory cards refunded where they are used for professional purposes, but (a) it is in practice only the purchaser of the memory card who can have the remuneration refunded, and (b) the purchaser of memory cards must submit an application for refund of remuneration to Copydan;

(3) if provisions are laid down in a Member State’s legislation ensuring that producers, importers and/or distributors may sell memory cards to other undertakings registered with the organisation which administers the remuneration scheme, without payment of remuneration, but (a) Copydan is the organisation which administers the remuneration scheme and (b) the registered undertakings have no knowledge of whether the memory cards have been sold to private or business customers?

If you would like to tell the IPO what you think about this case please email [email protected] by 12 December 2012.

This blogger has, as usual, no idea of the background to this reference, though he knows that Copydan is a Danish body and suspects therefore that this reference emanates from Denmark.  He also notes that some of the questions descend to a level of factual specificity which, he thinks, make it improbable that the CJEU will provide detailed answers.

If any readers can shed light on the background to this case, we will all be grateful.

ACI ADAM reference: you have to be quick to comment

The UK's Intellectual Property Office has just published the questions which have been referred to the Court of Justice of the European Union for a preliminary ruling in Case C-435/12 ACI ADAM E.A (on which see earlier 1709 Blog posts here and here). They are

1. Should Article 5(2)(b) [of Directive 2001/29] be interpreted as meaning that the limitation on copyright applies regardless of whether the works became available to the natural person concerned lawfully or does the limitation only apply when the work has become available without an infringement of copyright?

2. If the answer is that it applies only when work becomes available without infringement:-

a) Can the application of the three stage test form the basis of the expansion of the scope of Article 5(2) or can its application only lead to the reduction of the scope?

b) Is a national law that provides for payment of fair compensation for reproductions as above contrary to Article 5?

3. Is the Enforcement Directive (Directive 2004/48/EC) applicable to these proceedings – where a Member State has imposed an obligation to pay fair compensation under 5(2)(b)?

It's now still 5 November but, if you would like to comment on this case and tell the UK Government whether it should be making observations to the Court, can you please e-mail [email protected] by this Friday, 9 November 2012.