English  

U.S. District Court Southern District of New York 14 januari 2013, No. 10 Civ. 02730 (Agence France Presse tegen Daniel Morel tegen Getty Images)

In't kort: Buitenland. Auteursrecht, twitter, licentie, foto's. Agence France Presse dient een vordering in tegen fotograaf Daniel Morel strekkende tot vaststelling dat AFP de auteursrechten van Morel niet heeft geschonden, met betrekking tot bepaalde foto's voor commerciële gebruik. In reactie hierop heeft Morel een tegenvorderingen ingediend tegen AFP, Getty Images, Inc. en the Washington Post (hierna: AFP e.a.). Morel stelt zich op het standpunt dat AFP e.a. inbreuk hebben gemaakt op zijn auteursrechten en daarmee de Digital Millennium Copyright Act (DMCA) hebben geschonden. Morel heeft foto's van na de aardbeving in Haïti geplaatst op zijn Twitter en Twitpic-account. Ter discussie staat of de foto's zodra deze zijn geplaatst vrij beschikbaar zijn.

De vordering van Morel, dat AFP e.a. inbreuk hebben gemaakt op zijn auteursrechten, wordt toegewezen. De foto's van Morel mogen zonder zijn toestemming niet worden gebruikt.

The reference in the Twitter TOS to use of content by “other users,” and that the license authorizes Twitter to “make your Tweets available to the rest of the world and to let others do the same” are not to the contrary.  First, the reference to “other users” occurs in a paragraph of the Twitter TOS addressing the user’s responsibility for the content they post, not the paragraphs discussing the licenses granted under the Twitter TOS.  Moreover, even assuming that these statements grant some form of license to third parties (“other users”) to, for example, re-tweet content posted on Twitter—a question not before the Court—they do not suggest an intent to grant a license covering the activities at issue here.   To the contrary, the phrase “other users” suggests that any such license may be limited to use of the material on Twitter; otherwise, the Twitter TOS would simply refer to “others” rather than “other users.”

When read in the context of the Twitter TOS as a whole, this phrase is not sufficient to create a genuine dispute as to whether the Twitter TOS necessarily require the license claimed by AFP. AFP and the Post raise no other defenses to liability for direct copyright infringement and, in fact, concede that if their license defense fails—as the Court has determined that it does—they are liable for direct copyright infringement.  Getty, however, raises further defenses to liability, which the Court now considers.

Luister hieronder naar de opnames van het Internationale Copyright Congres van 31 augustus 2012: A Century of Dutch Copyright Law. Zie onderaan voor het programma.

Eerder belicht op IE-Forum:
- Book launch 'A Century of Dutch Copyright Law', deLex 2012. (order here)
- Speech of Fred Teeven, Secretary of State of Security and Justice (speech)
- Fotoverslag en presentaties hier)

Programma:

09:30 – 10:00 Registration with Coffee/Tea
10.00 – 10.15 Welcome: Prof. P. Bernt Hugenholtz (University of Amsterdam; chair)
10.15 – 10.30 Opening: DG WIPO Francis Gurry (WIPO)
10:30 – 11:00 ‘Works of Literature, Science and Art’
Prof. Paul Goldstein (Stanford Law School)
11.00 – 11.15 Comment, Prof. Willem Grosheide (Utrecht University)

11:15 – 11:30 Coffee/Tea Break
11:30 – 12:00 ‘Authorship and Ownership’
Prof. Frank Gotzen (KU Leuven)
12:00 – 12:15 Comment, Prof. Jaap Spoor (emeritus, Free Un. of Amsterdam)
12.15 – 12.45 General discussion
12:45 – 14:00 Lunch

14.00 – 14.30 ‘Economic and Moral Rights’
Prof. Lionel Bently (CIPIL, Cambridge University)
14:30 – 14.45 Comment, Prof. Dirk Visser (Leiden University)

14.45 – 15.15 ‘Limitations and Exceptions’
Prof. Thomas Dreier (Karlsruhe Institute of Technology, KIT)
15.15 – 15.30 Comment, Prof. Martin Senftleben (Free Un. of Amsterdam)
15.30 – 16.00 Coffee/Tea Break

16.00 – 16.20 Synthesis, Prof. Antoon Quaedvlieg (Radboud Un. Nijmegen)
16.20 – 16.30 Book launch, Dr. Jacqueline Seignette (Chairperson, VVA)
16.30 – 16.45 Fred Teeven, Secretary of State of Security and Justice (speech)
16.45 – 17.00….. Closing and reception (fotoverslag en presentaties hier)

P.B. Hugenholtz en M.R.F. Senftleben, Fair use in Europe. In search of flexibilities, IViR, 14 november 2011 en pdf.

Inleidende woorden van Thijs van den Heuvel, Bird & Bird en met dank aan Martin Senftleben, VU en Bird & Bird.

In deze studie onderzoeken prof. dr. P. Bernt Hugenholtz (Institute for Information Law, University of Amsterdam) en prof. dr. Martin R. F. Senftleben (VU Centre for Law and Governance, VU) de noodzaak en mogelijkheden van meer flexibiliteit in het auteursrecht.

Why is there a need for flexibilities in copyright law today and to what extent are open norms compatible with the copyright system? Does the EU and international legal framework leave Member States discretion to adopt in their national laws open ‘fair use’ style limitations and exceptions to copyright? What kinds of flexibility presently exist in national copyright law?

Zij concluderen dat er op Europees en nationaal niveau nooit eerder zoveel behoefte is geweest aan flexibiliteit in het auteursrecht. De auteurs pleiten niet voor de introductie van een “American-style general fair use provision”, maar doen de aanbeveling “to introduce a measure of flexibility alongside the existing structure of limitations and exceptions, and thus combine the advantages of enhanced flexibility with legal security and technological neutrality.”

De huidige Europese regelgeving op het gebied van auteursrecht biedt volgens de onderzoekers meer ruimte voor flexibiliteit dan wellicht gedacht. In de eerste plaats bieden de beperkingen in de Auteursrechtrichtlijn (2001/29) aan de lidstaten van de EU een ruime mate van implementatievrijheid. Hiernaast bestaat er ruimte voor de lidstaten, omdat the right of adaption grotendeels niet is geharmoniseerd.

Lidstaten die ten volle gebruik willen maken van de beschikbare beleidsruimte “might achieve this by literally transposing the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States.”

Lidstaten die flexibele bepalingen willen introduceren krijgen ten slotte het advies om hiermee niet te wachten tot er op Europees niveau flexibele bepalingen worden geïntroduceerd:

 “Member states (…) are advised to take advantage of the policy space that presently exists in EU law, and not wait until initiatives to introduce flexibilities at the EU level materialize. In this way, national models can be developed and tested in practice that may serve as a basis for more flexible future law making at EU level.”

The Hague District Court, Judgment in Preliminary Proceedings of 2 June 2010, KG ZA 10-639, FTD BV vs Eyeworks Film & TV Drama BV (translated judgement)

Copyright. Facilitating the downloading of copyrighted content is considered ‘making available to he public’. “Instead it is important whether the behavior of FTD allows users to download copyrighted files (in an easier manner) and that it thus makes such files in fact available to the public. This is the case, provisionally judging.”

2.1. The issue of this case is the downloading from Usenet of copyrighted material and the role played by FTD in this. (…)

2.6. FTD provides a service by which users can find and download files on Usenet in an easy way. To that end it gives access to a computer application, referred to hereinafter as FTD Application, by which users can share information about files stored in Usenet servers. In the FTD Application users post so-called spots, data regarding files which are considered interesting by users. A spot comprises the name under which the file in question can be found on Usenet.

4.3. The present preliminary proceedings concern the question whether by its behavior FTD makes the work available to the public.

4.4. FTD argues that it does not make available, because the copyrighted files are not within its power at any time. The servers in which the files are stored are not controlled by it, nor does it have any influence on the downloading by users, so it argues. Be that as it may, provisionally judging it is not relevant whether the copyrighted files are actually in the power of FTD at any time. Instead it is important whether the behavior of FTD allows users to download copyrighted files (in an easier manner) and that it thus makes such files in fact available to the public. This is the case, provisionally judging.

Read the translated judgment here. Original judgment here.

Prof. mr. Willem A. Hoyng, Howrey, Tilburg University: Annotated commentary on BOIP, 15 Januari 2010, Nº 20044489 (Onel / Omel, genuine use CTM).

Some quotes from the article: “This also evidences that the BOIP failed to appreciate the fundamental freedoms on which the European Union has been founded. The BOIP is of the opinion that the free movement of goods is adversely affected if an entrepreneur established in another country where the Community trademark is not being used would not be able to use this trademark. In the present case the free movement of goods is therefore, in the opinion of the BOIP, adversely affected owing to the fact that, by way of example, Les Mazes s.a.r.l., established in Gaillac, France, cannot make use of the trademark ONEL. However, there is actually question of the contrary! After all, it is actually this kind of registration by this kind of entrepreneur that leads to distortion of the free movement of goods. After all, in the present case this implies that the goods and services of ONEL can no longer freely circulate in the EU (after all, in my example Les Mazes s.a.r.l. will object to the supply of services under the ONEL trademark in France) and the same applies to the products and services in my example of Les Mazes s.a.r.l. which products and services cannot be sold in the Benelux.

As indicated, the decision of the BOIP is also at odds with the case-law of the Court of Justice. In the Pago decision the holder of the European trademark for Pago exclusively used its trademark in Austria and the trademark was well known there. The Court of Justice ruled that the reputation (the consequence of intensive use) in Austria is sufficient to assume that there is question of a known Community trademark. It is then completely in line with this to assume that genuine use in a Member State is sufficient to assume genuine use within the EU. (Read more)

It is clear that as a result of this decision the Court of Justice underlined the importance of considering the EU as, as it were, one state upon the application of European Trademark Law.

(…) Ideally, ultimately the possibility of the national registration should fully be abolished. In this context it would be a good thing to offer entrepreneurs who express the intention to only use a trademark in one Member State a reduced fee for registration of a Community trademark. If the entrepreneur later yet wants to offer the goods or services elsewhere he should then pay. To put it briefly, when it comes to preaching for your own parish (which, as said, I do not assume) this certainly was unnecessary!”

Read the full article here.

District Court of The Hague, 15th of December 2008, KG ZA 08-1322, G-Star International B.V. vs. Pepsico INC.

Trademark law. The The Hague district courts vision on the Intel ruling by the European Courts of Justice (EcJ). G-Star objects to PEPSI-RAW based its EU trademark RAW. Claims denied. Interesting case, the EcJ’ s interpretation is too strict; this ruling too is relatively strict.

“4.9. Partly in connection with the above it has become plausible that G-Star will be able to prove in proceedings on the merits that the relevant section of the public will link the G-Star trade marks to Pepsi RAW as used by PepsiCo. Such linking - viz. that the relevant section of the public, when seeing the Pepsi RAW sign being used, associates it with the G-Star RAW trade marks without likelihood of confusion being required - is considered even more unlikely since in the preliminary opinion of the court and in spite of arguments of G-Star which partly point in a different direction, the goods concerned are (virtually all) clearly non-similar goods (cf. paras 49 to 55 of the Intel judgment, also in connection with the reputation issue of the G-Star RAW trade marks that are invoked, see above para 4.7). PepsiCo rightly alleges that the market surveys carried out by G-Star did not concern this issue. Otherwise, too, the court holds the preliminary opinion that G-Star has not made a sufficiently plausible case on this issue, even though G-Star did state, so the interim injunction judge understands, that it views this issue in particular also in connection with what it calls the "crossovers - co-branding" practised by it; collaboration with other trade mark proprietors resulting in RAW-Cannondale bicycles, RAW-Defender Landrovers, RAW-Secco Prosecco, RAW Ferry (boat in Amsterdam canals), RAW Arne Jacobson chair, RAW Billiard and G-Star Raw Nights (parties) - with in any case the G-Star RAW trademark being used as well in each case except for the Landrover, the chair and the Prosecco, so it appears. G-Star alleges that the RAW trade marks are lifestyle trade marks which stand for a certain non-conformist, adventurous, daring, "out of the ordinary" lifestyle and target a young, trendy public, which Pepsi RAW [sic! translator] allegedly also targeted or started targeting with its Pepsi RAW. One should not lose sight of the fact that the existence or otherwise of such a link must be assessed globally, taking into account all factors relevant to the circumstances of the case (para 62 Intel). In the absence of such a link in the mind of the public, there is no "sub c" infringement (Intel para 31). But even if such a link should be likely, partly because of the co-branding and the other circumstances mentioned, then merely this link alone is not sufficient to make the invocation of "sub c" infringement successful (cf. para 32 Intel).  

 

4.10. In the preliminary opinion of the court there is no proof of (prima facie) evidence that by its use of the Pepsi RAW sign PepsiCo is taking unfair advantage of or causing detriment to the distinctive character or the repute of G- Star's trade marks and this, so the Intel judgment shows (paras 32, 37, 38 and 71), is required for the successful invocation of the "sub c" ground. This issue must also be assessed globally in the same sense as stated above in para 4.9 (para 79 Intel). The Court of Justice makes strict demands where it states clearly that the circumstances that a) the earlier trade mark has a huge reputation for certain specific goods (namely jeans) and b) those goods or services are not similar or not similar to a substantial degree to the goods or services of the challenged sign (in the present case: soft drink) and c) the earlier mark is unique in respect of any goods or services (as in the case of [intel], which as stated is not the case for [raw]) and d) said sign brings to mind the earlier mark, are not sufficient proof in the sense referred to here.  

 

4.11. According to paras 38 and 39 of that judgment the minimum requirement for assuming that such unfair advantage is being taken (called "latching onto" by G- Start) is that G-Star must prove that there are elements based on which it can be concluded that there is a serious risk that such an injury will occur in the future. It is the preliminary opinion of the court that the allegations G-Star has put forward so far do not justify such a conclusion. The allegation that the RAW element is the "DNA for G-Star" and that G-Star could actually be equated with RAW is relevant only in the sense that this must be so in the perception of this element of the relevant section of the public. G-Star has failed to demonstrate sufficiently that this section of the public will so strongly perceive this element in this sense argued by G-Star, that this will push the usual meaning of the adjective "raw" so much into the background in the context of the Pepsi RAW sign as to constitute proof of the serious risk referred to above. Apart from the grievances referred to in para 4.12, no further substantiated facts have been alleged or emerged in this respect and that does not suffice in the preliminary opinion of the court. It must be borne in mind that G-Star does not have the exclusive right to target a young (and therefore at the same time partly trendy and non-conformist ) public. Such targeting has already been a constant for a very long time in Pepsi's generally known publicity (accessible to the public via the Internet), with inter alia the following striking examples: "Now It's Pepsi, for Those Who Think Young" (early 19sixties), "Pepsi, The Choice of a New Generation" (1984) and "GeneratioNEXT" (1997).  

 

4.12. Insofar as detriment to distinctive character is the steppingstone for G-Star, it is so that according to the Intel judgment proof of such detriment requires evidence of a change in the economic behaviour of the average consumer of G-Star clothes and related products and services as a result of the use of Pepsi RAW, or a serious likelihood that such a change will occur in the future (para 77 Intel). This, too, is a fairly high hurdle and it is the preliminary opinion of the court that insufficient real evidence has been put forward in this case to clear it. In fact the only available evidence at present is an alleged concern felt by some G-Star retailers and their reported expressions of similar concerns by some consumers. It is striking that this seems to occur mainly in Scandinavia, where Pepsi RAW is not on the market, and hardly at all in any country in which Pepsi RAW was launched early this year, as PepsiCo rightly alleges. PepsiCo rightly raises questions about these alleged murmurings from the market. The court rejects G- Star's presenting this as proof of confusion (written summary of oral argument by Hoyng, Nos. 86 et seq.), which according to Intel makes infringement a given. The same applies to G-Star's allegation that this constitutes "clear proof" in the aforementioned sense and that it is "clear" that this would result in changed commercial behaviour of consumers. It is the preliminary opinion of the court that all this is definitely insufficient.

 

4.13. It is the preliminary opinion of the court that insufficient prima facie evidence has been provided for the allegation that - in addition to the alleged trade mark infringement - PepsiCo has been unlawfully latching onto the reputation of G- Star and its "RAW concept" as G-Star calls it. It has been insufficiently refuted that the use of the adjective 'raw' in present-day trendy usage has acquired an accepted descriptive meaning as outlined above in para 4.7. It is the preliminary opinion of the court that it is not unlawful for PepsiCo to use the word in this sense in its publicity. Insufficient prima facie evidence has been provided in these interim injunction proceedings of G-Star's allegation that such use injures its "RAW crossover concept"."

Read the entire judgment here.

’s-Hertogenbosch Court of Appeals, 14 October 2008, HD 103.003.078, Michaud Family Apicultures S.A. vs. Graham Packaging Company B.V.

Copyrights, designs and models law. Second interlocutory ruling in the honey pot case. Parallel procedures in France and The Netherlands. Legal system controlling infringement. Model is invalid, but defendants honey pot is protected thought copyright. A report by an expert is a determining factor.

The court rules that the result of the parallel French procedure regarding the same honey pots is not a deciding factor in the Dutch procedure. It is preferable that the national judgments are in agreement with one and other, but copyright and protection of industrial design are national matters. Thus a stay in judgment is not necessary. A ‘central attack’ is not an option either. The invalidity of the international model in France has no consequences for the same international model in the Netherlands.

The question whether or not the registration is invalid because the important characteristics of the model are insufficiently defined is, according to the court, not a question of formalities or administrative requirements (such as a colour photo or a black-an-white photo, in which determination is made by the regulatory provisions) but it is a matter of jurisdiction and the scope of protection which is determined by domestic law. In this case it means that research has to be done on whether the final characteristics of the model are sufficiently evident from the industrial designs registration provided.

“7.16. In the view of the court this is not the case. In this the court takes into account that in said copy the rather large dark yellow cap adopts a conspicuous position whereas the claims of Michaud precisely do not relate to the cap, but exclusively to the jar without said cap. The cap should as it were be thought out of it when examining the deposit. What then remains, is nothing else in the perception of the court itself, but the rather vague outlines of a somewhat spherical bottle or jar. According to Michaud this can be concluded simply from the honey jar as used in practice, but the court cannot agree to this stand at all. The reproduction of the jar(without cap) may result into many varying shapes, as shown by Owens at the oral pleading, and not specifically into the specific shape which Michaud intended to deposit. The description of the design is very global in this, and so no holds can be found in this either for further specification of the characteristics of the design.

7.17. All this implies that the court reaches the same conclusion as the District Court, i.e. that the deposit is invalid and that the honey jar is not entitled to design right protection in the Benelux. Ground 3 of the principal appeal which regards this is dismissed.”

Michaud’s honey pot, is however, protected by copyright. The expert-report supplied by the claimant is of crucial importance in this matter.

“7.20. In substantiation of its stand that the honey jar does have its own personal character and bears the personal stamp of the maker Michaud submitted a report by Prof.ir. J.J. Jacobs of April 26, 2006 (Exh. 27 Michaud). Prof. Jacobs was presented, to put it briefly, both with the question whether the honey jar of Michaud can be characterized as original and the question whether the bottle produced by Owens is similar to this design. This stage concerns the answer to the first question. The answer of Prof. Jacobs to this question is in the affirmative, whereas upon answering he discussed the defences of Owens in this respect. The report by Prof. Jacobs has been drawn up by an expert hired by one of the parties. In general such reports should be looked at with some restraint. When taking this into account the court also establishes that the report comprises a sound substantiation of the stand of Michaud whereas the contestation of its merits by Owens was not sufficiently reasoned and in fact boils down to a repetition of previous allegations already refuted by Prof. Jacobs.

7.21. By reason of these considerations the court assumes that the honey jar has not been derived from any other work and does bear the personal stamp of the maker, and so in principle qualifies for protection under copyright law.”

Regarding the question of ‘makership’ and current holder of copyright (of which the determination is made by French law) there us still some lack in clarity. The court rules Michaud’s statement that Barrault transferred their rights to them (as designer of the honey pot) as being proved, except when proven otherwise by Owens. The court will allow Owens to prove this, and will refrain from a further ruling until then.

Read the entire judgement here.

Lord Hoffmann flirts with EPO in Lundbeck/Generics UK judgment

Remco de Ranitz (De Ranitz Advocatuur) and Otto Swens (Vondst Advocaten)

"On 10 April 2008 the Court of Appeal in the United Kingdom handed down a judgment in the long awaited proceedings between Lundbeck and Generics UK. The judgment is a rare feast for all of us who favour a more harmonised, ‘European’ patent law, because the Court of Appeal, in particular Lord Hoffmann, has used this case to bring the UK approach to validity closer to the EPO / continental approach. A more elaborate discussion of the judgment will appear in the Dutch law IP journal IER shortly. This is a short appetiser."

Read the article here. (The authors represent Angiotech in Dutch patentprocedures).

District Court of The Hague, 28 August 2008, KG ZA 08-777, Abbott Cardiovascular Systems Inc. vs. Medtronic B.V. c.s

Patent law. Valid divisional, no extension of matter, no combination of measures. Trial partially held behind closed doors. Infringement ban  granted. Procedural costs of €125.463,45 awarded.

"4.79. Abbott having failed to raise the issue of equivalent infringement, and this issue not having been addressed for that reason, as argued by Medtronic, is a line of arguing not adopted by the court for now. To that end it should be noted that Abbott has argued that the Driver stents recovered by the scope of protection provided by EP 842. As pointed out hereinbefore in ground

4.68, the court, when determining the scope of protection of a patent, has to take proper account of equivalent elements, in any case since the entry into effect of EPC 2000 as of 13 December 2007 (‘due account shall be taken of any element which is equivalent to an element specified in the claims’), as a result of which he will be able to include such elements in his examination of the case. "

 

Read the entire judgement here.

Distric Court of Haarlem 19 August 2008, LJN: BE8765, The Performing Right Society Limited vs. Vereniging Buma.

Copy rights. Main question: what is is online use of music. Do website owners need permission from dozens of rights agencies, such as Buma?

 “4.14. The single judge charged with urgent cases does not get round to the assessment of the claim under II, as PRS has withdrawn this claim after the hearing after BUMA had sent it a copy of the licence agreement which it concluded with Beatport.com.

 

4.15. The single judge charged with urgent cases will reject the claim under III(a), as BUMA has argued in a sufficiently motivated waythat it is practically impossible to fulfil the claim because the licence fees it receives are calculated by means of
repartition and distributed under entitled parties without a distinction being made between music usage home and abroad and between BUMA-and PRS-repertoire. PRS has furthermore not contradicted that it has never objected to the payments it
received from BUMA.

4.16. The single judge charged with urgent cases will also reject the claim under III(b), as the conducting of conversations on the granting of licences at itself is not unlawful, as long as BUMA does not proceed to the providing of licences for online
music usage of the PRS-repertoire beyond the Netherlands c.a. or the conclusion of agreements in which it grants these licences. This last act is already prohibited for BUMA by the allowance ofthe claim under I.

5.1.    prohibits BUMA with immediate effect to provide or conclude music licences for online usage (via satellite, cable or internet) of the RPS-repertoire beyond the Netherlands c.a. or to put theminto effect,

5.2.    orders Buma to pay the costs ofthese proceedings, until now estimated at EUR 1,155.44 on PRS' side”

Read the entire judgement here.