The threshold of originality is a concept in copyright law that is used to assess whether a particular work can be protected by copyright. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not.
The Madrid Court of Appeal dismissed an appeal filed by the owners of a figurative mark whose central element is a radiant heart, drawn using thick black lines and coloured in red, this being used by the defendants to market numerous articles and souvenirs sold in many shops in Madrid. The Court upheld the first…
In law, perhaps one of the most famous aphorisms is “I know it when I see it”, which Justice Potter Stewart used to describe his threshold test for obscenity (in Jacobellis v. Ohio, 378 U.S. 184 (1964)). The CJEU, in case C‑310/17, delivered a decision on copyright which in a way confirms this aphorism and…
On 13 November 2018, the CJEU clarified the scope of EU copyright law by excluding works of taste from copyright protection. This marks the end of a three-year long dispute, which arose in 2015 between two cheese producers and was based on the idea that the taste of a food product is copyright protected. In…
The creation of works by artificial intelligence systems (AIS) challenges our perception of creativity and, with it, of eligibility for copyright protection. Examples abound. AIS can autonomously create paintings, literary works, music, or even artificial photos. Were these works created by a human being, their eligibility for copyright protection would not be controversial. However, it…
The relation between freedom of expression and copyright in the EU is one of imprecision and uncertainty. In Funke Medien (Case C-469/17) the German Federal Supreme Court (BGH) asks whether fundamental rights should permit the unauthorized use of military reports in the absence of an applicable copyright exception. In his Opinion, Advocate General (AG) Szpunar…
The delimitation of the proper boundaries of lawful use of copyright-protected works on the Internet has always been puzzling for courts, which in some instances have creatively interpreted the copyright acquis in order to take account of the particularities of the digital ecosystem. In this context, the CJEU in Usedsoft (C-128/11) adopted for the first…
In May, the ECS held their annual summit in Brussels, under the title “EU copyright, quo vadis? From the EU copyright package to the challenges of Artificial Intelligence.” The summit covered many of the hot topics on today’s copyright agenda, including the proposed directive on Copyright in the Digital Single Market. This post, however, focuses…
25 July 2018 marks a new episode in the Heks’nkaas saga. After tumultuous court proceedings at the national level and before the European Court of Justice, Advocate General M. Wathelet delivered his opinion in this controversial copyright dispute that is now pending before the Court of Justice of the European Union (CJEU). His opinion can…
This post was first published on the Kluwer Trademark Blog. Earlier this year, the Court of Appeal of Milan upheld a 2015 ruling by the Court of Milan which recognized copyright protection of the concept store of Kiko, the Italian make-up brand, and blocked competitor Wycon from using similar store decor in its shops. (Court…
On 4 June 2018, one of the core concepts of copyright – the copyright work – was disputed at the Court of Justice of the European Union (CJEU). The “cheese battle”, which started in 2015 at the Court of First Instance in Gelderland (the Netherlands) between HEKS’NKAAS (applicant) and ‘Witte Wievenkaas’ (defendant), resulted in a…
