The German Federal Court of Justice (BGH) has ruled on two cases concerning internet access providers’ obligation to block access to websites providing links to predominantly illegal content. In these two landmark decisions, the BGH has paved the way for website blocking in Germany. Where protected content is offered illegally, directly or via link providers,…
On November 13th the Dutch Supreme Court provided another chapter in the case of ISPs and blocking of the Pirate Bay (hereafter: TPB). It decided that the Court of Appeal had used an incorrect, namely too broad, criterion to judge the effectiveness of a blocking measure. Furthermore, preliminary questions were referred to the ECJ concerning…
Article 3(1) of Directive 2001/29/EC (the Infosoc Directive) must be interpreted as meaning that a broadcasting organisation does not carry out an act of “communication to the public” when it transmits its programme-carrying signals exclusively to signal distributors without those signals being accessible to the public (the “direct injection” technique). This judgment by the European…
On October 29th 2015, the Court of Justice of the European Union delivered its judgment in the case C‑490/14, Freistaat Bayern v Verlag Esterbauer GmbH. The Court was called upon to clarify the definition of “database” in Directive 96/9 on the legal protection of databases. It is noteworthy that the Database Directive, one of the…
The case of Svensson Retriever has shown that a hyperlink to a work freely available on a website accessible for all internet users is not a new communication to the public in the sense of Article 3(1) of Directive 2001/29/EC. However, the preliminary questions posed to the ECJ by an interlocutory judgment of September 30…
The French Supreme Court (‘Cour de cassation’) has caused a stir in France (15 May 2015, No 13-27391), by quashing a judgment of the Court of Appeal of Paris for breaching Article 10-2 of the European Convention on Human Rights (“ECHR”). The Supreme Court held that before condemning an alleged infringer for copyright infringement, the…
Decision Oberlandesgericht (Court of Appeal) Hamburg of July 1, 2015, file no. 5 U 87/12 and Landgericht (District Court) Munich I of 30 June 2015, file no. 33 O. 9639/14 YouTube is the most popular video-sharing website in the world. As it is not entirely free of videos that infringe third party copyrights, it is…
The court held that the applicable law is determined by the lex loci protectionis (Schutzlandprinzip), therefore the question of authorship in Switzerland is determined by the Swiss “creator’s principle”, not the British principle of “work for hire“. Where it is claimed that there has been a parallel creation, inspired by elements in the public domain…
The court of appeals held that as there was no evidence that the Defendants had gained any profit from a public display of sculptures, they were not liable to pay royalties in respect of the exhibition. However, the defendants were ordered to discontinue sales of products bearing pictures of the copyright sculptures as this activity…
By Jeremy Blum and Luke Maunder, Bristows A recent decision in the UK Intellectual Property and Enterprise Court (IPEC) provides some helpful guidance on the application of the ‘user principle’ and, more importantly, on the interplay between damages for flagrant infringement under s.97(2) of the Copyright Designs and Patents Act 1988 (CDPA) and damages under…
