The Authors' Take - Spiegel Online: Do copyright exceptions and fundamental rights make easy bedfellows?

Spiegel Online:

Do copyright exceptions and fundamental rights make easy bedfellows?


Universidade Católica Portuguesa – Faculdade de Direito


In Spiegel Online – a reference to the Court of Justice of the European Union (CJEU) made in the context of proceedings opposing German politician Volker Beck and news publisher Spiegel Online GmbH – the German Federal Supreme Court (BGH) referred a number of questions about the interpretation of exceptions laid down in Article 5 of the InfoSoc Directive, in particular the exception for the reporting of current events and the quotation exception.

Most notably, the BGH asked about the way in which the Charter of Fundamental Rights of the EU should be taken into account in determining the scope of exceptions. As EU copyright enthusiasts know, the traditional canon of strict interpretation of exceptions has been consistently mitigated by the CJEU’s understanding that interpretation must also ensure the exceptions’ effectiveness and the observance of their purpose. Moreover, in interpreting exceptions like quotation (C-145/10, Painer) and parody (C-201/13, Deckmyn), the CJEU has attempted to strike a fair balance between the intellectual property rights of authors and the fundamental rights of users. Generalising this approach to the remaining exceptions would be a welcome move by the Court.

But the most important among the six questions referred by the BGH is whether the fundamental freedoms of information and of the press may justify exceptions beyond those listed in Article 5. On the one hand, a negative answer would be consonant with the closed nature of the catalogue of exceptions, proclaimed in Recital 32 of the Directive. On the other hand, opening up the catalogue, even if only in carefully delimited circumstances, would amount to an injection of much-needed flexibility into EU copyright law. In the absence of legislative reform in this regard, such a solution would give national courts some breathing space to openly accommodate unforeseen and socially valuable uses of protected works.




[*] The author acted as legal adviser for the Portuguese Government in Case C-516/17, Spiegel Online. Nonetheless, the views expressed in this post are his own and do not necessarily reflect the official position of the Portuguese Government.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]

Goldring award for JIPLP founder Jeremy Phillips

Credit: MARQUES Class 46 Blog
It is with great pleasure and pride that we learnt that our founding editor, Jeremy Phillips, was awarded the David Goldring Volunteer Award at the 31st Annual Conference of MARQUES yesterday. Jeremy dedicated his entire life to teaching, researching and practicing IP law, creating, among others, the Journal of Intellectual Property Law and Practice, the IPKat, Class 46 and many other blogs and communities. His contribution to intellectual property went well beyond his activity as scholar and teacher, as Jeremy worked tirelessly to bring together all of us in a cohesive, dynamic, curious and supportive network of IP professionals, academics and enthusiasts. Although Jeremy retired in 2015, his passion for IP, his dedication to the IP community and his unshakable enthusiasm will forever live in all of us.

It is only fitting that Jeremy's latest accolade bears the name of David Goldring, whose knowledge of IP, and trade mark law more specifically, was paralleled only by his enthusiasm for the subject. Like Jeremy, David was animated by the desire to contribute to the development of IP, to further its understanding and to shape its policies and laws. In the early 1980s, he was one of the founders of MARQUES, of which he became a Treasurer in 2003, missing only one Annual Conference in thirty years. The David Goldring Volunteer Award, created after his death in 2016, celebrates David's achievements and long lasting contribution by honouring others whose work in trade mark law shares the same spirit, values and generosity. David's ethics and legacy resonate very clearly in Jeremy's lifelong commitment to IP and we share his joy in receiving this award.

We are sure that Jeremy will appreciate receiving your congratulations, messages and best wishes - you can leave them on this page, as a comment to this post, together with the heartfelt congratulations that Eleonora, Marius, Sarah, Guy and I proudly (very proudly!) send to him on behalf of the entire community of JIPLP readers and authors.

Joint JIPLP-GRUR event - A Distinctive Mess? Current Trade Mark Law and Practice in the EU and UK

Since January 2013, the Journal of Intellectual Property Law & Practice (JIPLP) has partnered with the German Association for the Protection of Intellectual Property (GRUR) to exchange content between JIPLP and GRUR Int., as well as organising events aimed at IP enthusiasts - wherever based!

On Friday, 24 November 2017, join JIPLP and GRUR for an exciting half-day event devoted specifically to the latest trade mark developments and trends in the EU and UK.

The conference will be held at the beautiful London offices of Allen&Overy. It will consist of two panel sessions composed of leading IP practitioners and academics who regularly contribute to JIPLP and GRUR Int, and feature a keynote address by Sir Richard Arnold.

Here's the programme:

14:00-14:30 - Registration

14:30-14:40 - Welcome remarks

14:40-15:40 - EU trade mark law (Moderator: Eleonora Rosati (University of Southampton and JIPLP Co-Editor); Discussants: Yann Basire (Université de Haute Alsace and CEIPI - Université de Strasbourg), Karin Sandberg (Harmsen Utescher and GRUR Board Member), Marius Schneider (Attorney-at-law at the Brussels and Mauritius bar and JIPLP Co-Editor), David Stone (Allen&Overy and JIPLP Board Member), Gert Würtenberger (WK-IP and GRUR President))

15:40-16:00 - Coffee/tea break

16:00-17:00 - Keynote address: Sir Richard Arnold

17:00-18:00 - Trade marks in the UK (Moderator: Stefano Barazza (University of South Wales and JIPLP Co-Editor); Discussants: Anna Carboni (Redd Solicitors and JIPLP Board Member), Birgit Clark (Baker & McKenzie and JIPLP Board Member), Gill Grassie (Brodies and JIPLP Board Member), Darren Meale (Simmons&Simmons and JIPLP Board Member)

18:00-19:30 - Conference ends; drinks and nibbles

Attendance is free, but registration is required. If you are interested in attending, hurry up and register here.

The Authors' Take - Proposed Press Publishers’ Right: A Workable Solution?

Proposed press publishers’ right: a workable solution?

University of Helsinki, Faculty of Law

Quality journalism is more important than ever. By the same token, few would oppose legal and economic conditions amenable to producing press content of high journalistic standards. Achieving those conditions is also what the European Commission’s proposal on Copyright in a Digital Single Market seeks by proposing the creation of a related press publishers’ right.
The proposal raises various issues. Many of these issues have been elegantly addressed by other scholars (e.g. C Geiger, O Bulayenko and G Frosio, [2017] EIPR 202) and are currently under discussion by the EU legislator. In this blogpost, we highlight some issues concerning the proposed related right that our article [which will be published as Advance Access here in a few weeks' time, and will be included in one of the next issues of JIPLP] discusses more extensively. Most of these issues stem from the proposal’s definition of protected subject-matter and exclusive rights in such a way that almost any reuse of news content might appear infringing. To illustrate: reproducing and making available to the public even minimal excerpts that would not qualify as original or as the result of significant investment would be infringing under the proposal.
Arguably, the right as proposed could help press publishers protect and license news content in which they have invested. At the same time, however, over-extensive protection may unnecessarily threaten the various legitimate interests served by other activities in which news content is discussed or reused. Not all these activities threaten the incentives of press publishers. Moreover, it is unclear if the related right would remedy imbalances in bargaining with online services.
Concerns about rigid, broad protection could be alleviated by better taking into account the diverse circumstances in which the proposed rights would apply. Protection could require originality, while infringements could be limited to situations where reuse of content is most problematic for press publishers’ incentives and not justified by other legitimate interests. It is also worth considering whether EU legislation allowing press publishers to rely on copyright in press publications, as proposed in the Parliament, could resolve the issues identified by the Commission satisfactorily and with fewer problems.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]

The Authors' Take - Coty Germany v Parfümerie Akzente

AG WAHL interprets competition provisions in relation to selective distribution agreements for luxury cosmetics

University of Southampton, School of Law

In his Opinion of 26th July 2017 in Coty Germany GmbH v Parfümerie Akzente GmbH, C230/16, Advocate General (AG) Wahl provided his interpretation of Article 101 TFEU and Regulation (EU) No 330/2010 (the Regulation). The request for a preliminary ruling came from the German Higher Regional Court (Oberlandesgericht Frankfurt am Main), and was made in the context of a dispute between cosmetics giant Coty Germany and one of its distributors, Akzente.
The question is whether Coty’s new selective distribution agreement, which prohibited the discernible use of third party websites, is precluded by EU antitrust provisions. Azkente wanted to use Amazon.de to market the goods, thereby gaining access to Amazon’s enormous active user base as well as lower marketing costs and the option to have orders fulfilled by Amazon itself.
Article 101(1) of the Treaty on the Functioning of the European Union (TFEU) prohibits agreements which distort competition, either by object or effect. Under the Regulation, vertical agreements are presumed to be exempted from Article 101(1)  TFEU via Article 101(3) TFEU, provided that neither the supplier’s nor buyer’s market share exceeds 30%.
Does the agreement distort competition?
According to the AG, the agreement falls outside Article 101(1) TFEU. This is because, when factors other than price are taken into account, Coty’s requirement does not cause appreciable anti-competitive effects.  In reaching this conclusion the AG adopted the view – extant in both competition and trade mark decisions – that a luxury product loses its value to the consumer if it becomes commonplace. The preservation of this ‘aura’ is therefore capable of offsetting anti-competitive effects. This qualitative assessment, or ‘appreciability’ test, is a source of uncertainty for parties when drafting agreements. The Opinion, if followed by the Court, should be welcomed by the Luxury Cosmetics industry, worth €203b in 2016. Its effect is to create a presumption that an agreement aiming to preserve prestige is not caught out, provided it is non-discriminatory and proportionate.
Clarifying Pierre Fabre
However, if the ‘object’ of an agreement is deemed to be anti-competitive, Article 101(1) applies and no qualitative analysis occurs. This, the AG explained, was what led the court in Pierre Fabre Dermo-Cosmétique , C-439/09, EU:C:2011:649 (Pierre Fabre), to declare ‘the aim of maintaining a prestigious image is not a legitimate aim for restricting competition’.  In that case an absolute ban on internet sales was classified as restriction by object. A full and much needed delineation of the ‘object’ category will have to wait for a future reference but a comparison between Pierre Fabre and the instant case indicates that proportionality is a key factor whether a ‘sufficient degree of harm’ has occurred.
The AG went on to confirm that, even if Article 101(1) did apply, the agreement would qualify for the Block Exemption under the Regulation. An agreement cannot benefit from the exemption if it is deemed to be a ‘hardcore restriction’. This is along the same lines as a restriction by object under Article 101(1), but more user-friendly because it sets out prohibited restrictions. The AG concluded that a restriction on discernible third party platforms constitutes neither a territorial limitation nor a restriction of passive sales.
So, a probable reprieve for luxury cosmetics suppliers, but the rapid evolution of the e-commerce sector means the proportionality assessment could soon favour distributors. Nor is the debate settled about law’s role in protecting prestige, although the interdependent evolution of trade mark law means the concept is fairly entrenched. 

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]