BELGIUM: COPIEPRESSE vs. GOOGLE
January 2006 launch of Google News in Belgium: Unanimous decision of Copiepresse members to react against the infringements committed in terms of copyright in Google News (title + excerpt) and in Google search (open access to cache).
First instance: favourable decision (13 Feb. 2007): the judge ordered:
- withdrawal of articles from Copiepresse repertoire from Google News,
- no more access to cache in Google Search,
- publication of the decision on Google website (with delay penalties)
Newspapers were then blacklisted from Google Search: Copiepresse set a prior condition that publications had to be back on Google search.
Appeal: favourable decision (5 May 2011): the ruling confirms the first decision: see also http://www.ifrro.org
- Google’s uses without rights holders’ prior authorization are counterfeiting acts
- American law (fair use) is not applicable in this case and neither is the opt-out principle
- No legal exception is applicable
- Google’s freedom of speech is absolutely not harmed by publishers’ demands. It only needs to conclude agreements with them.
In December 2012, the francophone publishers reached an agreement which puts an end to the judicial proceeding. Parties agreed to use their respective media to promote each other’s services, e.g. by optimising Google’s AdWords campaigns to attract readers to the newspapers’ websites, and by placing Google advertising in publishers’ media. In addition to this partnership, publishers can, on a voluntary basis, re-enter Google News.
DENMARK: INFOPAQ VS. DANSKE DAGBLADES FORENING
In March 2013, the Danish Supreme Court upheld the 2007 judgment from the Eastern High Court after hearing the ECJ twice during the past years. The Danish copyright case relating to the automated production of summaries of news reports and articles (Infopaq International A/S v Danske Dagblades Forening) was referred to the European Court of Justice. Infopaq activities consist of scanning the publications, converting the scanned pictures to text files and finding a search word in the text by defining the publication, page number, section and page number. In order to make it easier to find the searched word in the article, the five words which come before and after the search word are captured, i.e. the extract of 11 words.
In its preliminary ruling, ECJ indicated that even 11 words of a sentence could be considered as a creative content and therefore protected by copyright. DDF claimed that the 11 words extract was a reproduction protected under Article 2(a) of the Infosoc Directive No. 2001/29 and not exempted from protection under Article 5(1) of the Infosoc Directive (see also: IFRRO website). Infopaq disputed this conclusion.
In January 2012, ENPA’s Danish member DDF received an Order of the ECJ 17 January 2012 (without a preceding hearing in Luxembourg) in which the Court answered the remaining questions from the Danish Supreme Court in the Infopaq case, raising new concerns to the publishers. Thereafter, the Danish Supreme Court examined the ECJ answers to evaluate how to place them in the context of the case. Legal basis:Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
UK: NEWSPAPER LICENSING AGENCY V. MELTWATER (C-360/13)
The NLA licenses the copying of newspaper content on behalf of the copyright owners under the authority of the Copyright Designs & Patents Act 1988. NLA sought a ruling from the High Court on whether users of paid-for aggregator services can receive copy and distribute newspaper web content without a licence. The counter party was the Public Relations Consultants Association (PRCA), a representative body of the PR industry.
- In July 2011, the Court of Appeal confirmed the ruling of the High Court that online newspapers are copyright protected and that most (if not all) businesses subscribing to a media monitoring service that contains content from online newspapers require a license.
- The Copyright Tribunal ruled on the fairness of the pricing and other licence terms, which will enable the NLA to implement fully the web licensing scheme in 2012 – creating a level playing field for all paid for media monitoring companies and beginning to deliver a fair share of revenues to publishers.
- In April 2013, the Supreme Court (UK) referred the Meltwater case relating to 'temporary copying' to the European Courts of Justice (ECJ). ECJ will now consider whether an alerts service delivered as a web link would be covered by the temporary copies exception. The UK Supreme Court favoured the appeal but has sought confirmation from the ECJ before issuing any final ruling on this issue.
On 5 June 2014, the Court of Justice of the European Union (CJEU) announced its decision on the “temporary copying” exception, Article 5 of Directive 2001/29/EC (PRC (“Meltwater”) v NLA, Case C 360/13).
In a nutshell, the CJEU ruled that "Article 5 of Directive 2001/29/EC (…) must be interpreted as meaning that the copies on the user’s computer screen and the copies in the internet ‘cache’ of that computer’s hard disk, made by an end-user in the course of viewing a website, satisfy the conditions that those copies must be temporary, that they must be transient or incidental in nature and that they must constitute an integral and essential part of a technological process, as well as the conditions laid down in Article 5(5) of that directive, and that they may therefore be made without the authorisation of the copyright holders."
In a comment on the decision, NLA states that it is confident that the result of the case has no implications for the licences NLA media access issues for the present web-monitoring services operated by Meltwater and other media monitoring agencies. End user clients who pay for their current monitoring service still require a licence for the content they receive; negotiated commercial solutions which recognise and meet the needs of all parties are the way forward.
SPAIN: AEDE V. DOCUMENTACIÓN DE MEDIOS
On 13 May 2009, after 2 years of lawsuit, the Mercantile Court nº 6 in Madrid has ruled in favour of 55 daily newspapers and AEDE, the Spanish association representing the newspaper publishing sector in Spain, in a case against a press clipping company named “Documentación de Medios”.
In its judgement, the court required Documentación de Medios to stop immediately its press clipping activities: integral compilation, reproduction and public communication of the daily newspapers content. The court also prohibited Documentación de Medios to commit in the future new infringements to the exclusive intellectual property rights mentioned above.
For more information on this case:
SPAIN: AEDE against Rodalca (RGR)
A court case started in April 2007, based on a complaint of AEDE against Rodalca (RGR), a press clipping company which has similar activities than “Documentación de Medios”. The Mercantile Court nº 1 of Madrid pronounced its sentence in June 2009: Rodalca should stop using newspapers’ content without prior consent of the publishers. Rodalca appealed the sentence and the case was judged in the Appealing Court in 27July 2011. The document has not yet been sent to the Provincial Court of Madrid.
SWEDEN: Nils Svensson and Others v Retriever Sverige AB (C-466/12)
The judgment on hyperlinking and making available in the case Nils Svensson and Others v Retriever Sverige AB says that the owner of a website may, without the authorisation of the copyright holders, redirect internet users, via hyperlinks, to protected works available on a freely accessible basis on another site. This is so even if the internet users who click on the link have the impression that the work is appearing on the site that contains the link.
More specifically, the Court of Justice of the European Union (CJEU) issued its decision in Case C-466/12 Svensson, a reference from the Swedish Svea hovrätt, asking the CJEU to answer four specific questions with respect to hyperlinking (cf. Article 3(1) of Directive 2001/29/EC).
In a nutshell, the CJEU holds that, while a link is an act of making available, where a work is already freely accessible on the open Internet, then that act of making available does not require the consent of rightholders because it is not a new public.
The position would be different, however, in a situation where the hyperlink permits users of the site on which that link appears to circumvent restrictions put in place by the site on which the protected work appears in order to restrict public access to that work to the latter site’s subscribers only, since in that case, the users would not have been taken into account as a potential public by the rightholders when they authorised the initial communication.
Finally, the CJEU is of the opinion that EU Member States do not have the right to give wider protection to rightholders by broadening the concept of ‘communication to the public’ contained in Article 3(1) of Directive 2001/29, as that would undermine the objective of the Directive.
The CJEU’s complete decision (in English) is here.
CJEU: DECKMYN case
CJEU rules that if a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message
On 3 September 2014, the Court of Justice of the European Union (CJEU) issued its decision in Case C-201/13, Johan Deckmyn and Vrijheidsfonds VZW v. Helena Vandersteen and Others, a reference for a preliminary ruling from Belgium, concerning the notion of parody under Article 5(3)(k) of the Information Society Directive 2001/29/EC. The official press release is available here.
As regards the characteristics of a parody (which must be defined in accordance with its usual meaning in everyday language), only two are essential: "to evoke an existing work while being noticeably different from it"; and "to constitute an expression of humour or mockery." A parody does not need to display an original character of its own, other than that of noticeable differences with respect to the original work parodied. The CJEU further decided that there is a need to "strike a fair balance" between copyright protection and freedom of expression, and that the rightholderhas "in principle, a legitimate interest in ensuring that the work protected by copyright is not associated" with a parody that conveys a discriminatory message.
EU's external competence to negotiate copyright-related treaties
CJEU clarifies that EU has external competence to negotiate international agreements on broadcasting rights
The EU Court of Justice (CJEU) issued its decision in Case C-114/12, Commission v. Council, on 4 September 2014, concerning the EU’s external competence to negotiate copyright-related treaties regarding an action for annulment. The case arose as a result of the dispute between the European Commission and the Council about the competence to negotiate a Convention of the Council of Europe on the neighbouring rights of broadcasting organisations. The CJEU’s complete decision is available here , while Advocate General Sharpston’s related Opinion is here.
The CJEU concluded that the negotiations for a Convention of the Council of Europe on the protection of neighbouring rights of broadcasting organisations fall within the exclusive competence of the EU, and that the contested decision was adopted in breach of Article 3(2) TFEU.
Dutch court refers preliminary questions on the lending of e-books to EU Court of Justice
As reported in a press release (in Dutch), the Court of Appeal of The Hague (The Netherlands) decided on 3 September 2014 to refer preliminary questions on the lending of e-books to the EU Court of Justice (CJEU). The case concerns The Dutch Association of Public Libraries v. Stichting Leenrecht.
The Dutch court asks, inter alia, for clarification on the scope of the decision in Case C-128/1, UsedSoft v. Oracle, delivered by the CJEU in July 2012, in which the CJEU established that, under certain circumstances, exhaustion of the distribution right within Article 4(2) of the Software Directive 2009/24/EC may take place for computer programs downloaded from the copyright holder’s website.
In the recent decision of the Court of Appeal of Hamm (Germany), the German court upheld the earlier ruling of the Regional Court of Bielefeld (see: IFRRO website), and held that the right of distribution is not subject to exhaustion when it comes to digital subject-matter other than software, because the EU Software Directive is to be considered as lex specialis in relation to the provisions of the EU Information Society Directive. The lex specialis nature of the Software Directive has also been re-affirmed by the CJEU in its decision in Case C‑355/12, Nintendo.
CJEU: Stichting de Thuiskopie
16 June 2011, the Court of Justice of the European Union gave judgment in Case C-462/09, Stichting de Thuiskopie v Opus Supplies Deutschland GmbH, Mijndert van der Lee and Hananja van der Lee, a reference for a preliminary ruling from the Dutch Supreme Court. The judgment is available here: Case C-462/09. Article 16c(1) of the Dutch copyright law makes an exception in its national law in favour of copying for private use, while Article 16(2) adds that a manufacturer or importer of an item used for reproduction has to pay a private copying levy. Arguing that Opus, a German company selling blank media online via Dutch-language websites that target Dutch consumers, had to be regarded as the ‘importer’ and responsible for paying the private copying levy, Stichting de Thuiskopie sued for payment of that levy. Opus denied liability, claiming not to be classified as an importer into the Netherlands, but rather that individual Dutch consumers should be classified as importers. The trial court and first appellate court agreed with Opus, following which Stichting de Thuiskopie appealed to the Dutch Supreme Court, who decided to refer to the Court of Justice for a preliminary ruling.
The judgment, which makes many references to the Padawan ruling (Case C-467/08), clearly states that the onus is on the EU Member States to ensure that rightholders receive fair compensation, even if a manufacturer or importer is based in another Member State. Consequently, Member States with an exception for private copying must guarantee the effective recovery of the fair compensation, in particular if the harm arose on its territory.
CJEU: Oracle decision
According to the German Regional Court of Bielefeld, the Court of Justice of the European Union's (CJEU's) UsedSoft v Oracle decision in Case C-128/11 is not applicable to the resale of other digital content such as downloadable e-books and audiobooks. The German court held that, because of the nature of the EU Software Directive 2009/24/EC as lex specialis to the EU Information Society Directive 2001/29/EC, the reasoning in UsedSoft could not be applied to other subject-matter. In this vein, the Landgericht Bielefeld concluded that the Information Society Directive does not permit application of the principle of exhaustion to works in non-analogue form. A copy of the German decision (Case No 4 O 191/11, Landgericht (German Regional Court) Bielefeld, 5 March 2013), in German, is here: (attached)
In the Capital Records v ReDigi ruling on digital music, the U.S. District Court for the Southern District of New York ruled that ReDigi was not protected by the U.S. "first sale" doctrine, which allows consumers to buy and sell copyrighted works after the creators first put them into the marketplace. It distinguished the case from the earlier U.S. Supreme Court decision in Kirtsaeng v John Wiley & Sons (http://www.law.cornell.edu/supremecourt/text/11-697) that decided that U.S. rightholders cannot prevent products they purchase elsewhere from being resold in the U.S.
CJEU: Amazon case on Copyright levies
On 11 July 2013, the CJEU ruled in the case C-521/11 Amazon.com International Sales Inc. and Others v Austro-Mechana Gesellschaft zur Wahrnehmung mechanisch-musikalischer Urheberrechte Gesellschaft mbH. The full judgement is available here. The CJEU was asked by the Austrian Supreme Court whether it is permitted under EU Law for a collective management organisation (CMO) to ask for the payment of levies on recording media such as MP3 players or blank CDs. The case opposed the Austrian CMO Austro-Mechana to Amazon.com who argued that a general “blank cassette levy” was in contradiction to EU Law.
Contrary to what was alleged by Amazon.com the Court found that the existence of a general levy was not incompatible with EU Law as long as there is also a system of reimbursement for instance upon re-export of the device or media that is levied. The Court also stated that a system where part of the levy is not transferred directly to the rightholder but goes to social and cultural institutions is acceptable, provided the rightholders benefit from it and the income is shared among eligible rightholders on a non-discriminatory basis. Finally, the Court considered that the payment of a blank cassette levy in another Member State should not free the retailer from paying it in other Member States.
CJEU: VG WORT
On 27 June 2013, the Court of Justice of the European Union (CJEU) gave its ruling in Joined Cases C-457/11 to C-460/11 Verwertungsgesellschaft Wort (VG Wort) v Kyocera, Epson Deutschland GmbH, Xerox GmbH, Canon Deutschland GmbH and Fujitsu Technology Solutions GmbH, Hewlett-Packard GmbH v VG Wort. In a nutshell, the CJEU stated that the concept of ‘reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects’ (cf. Article 5.2(a), Directive 2001/29) includes reproductions made using a printer or a personal computer where the two are linked together. Moreover, the Court found that an act by which a rightholder may have authorised reproduction of his protected work or other subject-matter has no bearing on the fair compensation owed. The Curia press release is here, while the complete judgment is here.
CISAC v. European Commission
On 12 April 2013, the General Court (Sixth Chamber) of the European Union ruled in Case T 442/08, International Confederation of Societies of Authors and Composers (CISAC), supported by European Broadcasting Union (EBU) v. European Commission. The General Court partially annulled the Commission’s decision (Case COMP/C2/38.698 – CISAC), which found anti-competitive conduct on the part of collective management organisations (CMOs). By its decision of 16 July 2008 (under the then Article 81 EC Treaty and Article 53 of the EEA Agreement), the Commission prohibited 24 European CMOs from restricting competition, in particular by limiting their ability to offer their services to authors and commercial users outside their domestic territory .
In a nutshell, the General Court now annulled, for CISAC and for 20 of the CMOs concerned, the Commission’s decision in respect of the finding of a concerted practice to restrict competition; it considered that the Commission did not provide sufficient evidence in this regard. However, the General Court rejected the applications in so far as they sought the annulment of the Commission decision in respect of the membership and exclusivity clauses. Sources: Case T 442/08; and Curia media release.
US Google Books case: ASMP et al. v. Google
As informed in a press release by the American Society of Media Photographers, ASMP (see: ASMP website), a group of photographers, visual artists and affiliated associations have recently reached a U.S. settlement with Google. The agreement resolves a copyright infringement lawsuit filed against Google in 2010 (ASMP et al. v. Google), bringing to an end more than four years of litigation. The settlement, which does not need to be approved by the court, includes funding for the PLUS Coalition, a non-profit organisation dedicated to helping rightholders communicate clearly and efficiently about rights in their works. Further terms of the agreement are confidential. The parties highlight that this agreement does not affect Google’s current litigation with the Authors Guild or otherwise address the underlying questions in that suit.
CJEU case on CMO’s territorial monopoly
In February 2014, the Court of Justice of the European Union (CJEU) delivered its judgment in Case C-351/12 Ochranný svaz autorský pro práva k dílům hudebním o.s. (OSA) v Léčebné lázně Mariánské Lázně a.s., in which it held that the EU Directive 2001/29/EC does not exempt a spa from the payment of fees where it transmits protected works to its guests, and that – as EU law stands at present – the territorial monopoly granted to collective management organisations (CMOs) is compatible with the freedom to provide services. The official CJEU press release is available here. We reported about the Advocate General’s Opinion here.
Innoweb v. Wegener case
The Court of Justice of the European Union (CJEU) ruled in the CaseC-202/12, Innoweb v. Wegener in December 2013. The CJEU has given its first decision on whether scraping of data from websites infringes the database rights in target websites. More specifically, the CJEU decided that a meta search engine operator (using search engines provided by other websites to retrieve results) infringed the EU database right (cf. Article 7(1) of Directive 96/9/EC) where it:
The decision, which is a warning to those who operate unlicensed website scraping services, is important both because of the impact on the EU database right and on how copyright operates online. Link to the judgment: http://curia.europa.eu/juris/document/document.jsf?text=&docid=145914&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=307728
Advocate General’s Opinion regarding publicly accessible libraries
CJEU Advocate General (AG) Jääskinen came to the obvious conclusion when he reconfirmed that an EU Member State may authorise libraries to digitise books they hold in their collection in accordance with Article 5(2)(c) of the EU Copyright Directive 2001/29/EC (EUCD), without the consent of the rightholders, so as to make them available on dedicated terminals on the library premises, in accordance with Article 5(3)(n) EUCD. More importantly, AG Jääskinen rejected the claim that exceptions may be “chained”, e.g. that the copy that may be made available on the library premises under Article 5(3)(n) may subsequently be transferred from the dedicated terminal to a user device under another exception.
In the case at hand, the German Bundesgerichtshof (Federal Court of Justice) asked the CJEU to clarify the scope of the exception under Article 5(3)(n) EUCD regarding publically accessible libraries which, for the purpose of research or private study, make works from their collections available to users by dedicated terminals. The reference to the CJEU stems from a dispute between the Technical University of Darmstadt and a German publishing house, Eugen Ulmer KG. The full text of the Opinion (dated 5 June 2014), which is not binding for the CJEU, is published on the CURIA website.
On 11 September 2014, theCJEU ruled that "Member States may, within certain limits and under certain conditions, including the payment of fair compensation to rightholders, permit users to print out on paper or store on a USB stick the books digitised by the library."