Wednesday, October 24, 2012

Some Exciting CJEU References


Today somewhat more copyright oriented post. It seems that interesting references for preliminary rulings before the Court of Justice of EU are definitely not on the decrease. Except for the older pending ones, which I list here, consider this fantastic set of cases. Copyright limitations, such as private copying exemption and library use exemption, but also jurisdiction issues, will have more scrutiny before the CJEU in the upcoming months.

  • Is downloading from illegal sources legal?
Yes, as lot of us excepted, the Dutch case ACI et al. v Stichting de Thuiskopie made its way to the Court of Justice of EU according to the Outlaw.com, which points to the website of the Dutch Supreme Court. In May 2009, the District Court of the Hage held that downloading from illegal sources is an infringement because of the three step test. The case was then overturned by the Court of Appeal, who stated the private copying exemption in the Dutch Copyright Act does not differentiate between copies made from legal or illegal sources (full decision here). Now, the CJEU will have to decide whether in Europe, the interpretation of the InfoSoc Directive's three step test and interpretation of its private use exception, permits downloading from illegal sources. CJEU lists the case as Aci Adam C-435/12.

  • Can libraries digitise printed books and than allow its visitors to copy the .pdfs on USB?
Several days ago, BGH informed in its press release (DE, EN) that it had to file the preliminary reference to the CJEU about the scope of permitted use of copyrighted works by libraries within their libraries exception. The German University’s library had been scanning printed books and then providing access to it in .pdfs via electronic terminals on its premises. Library visitors were allowed not only to print out these .pdfs, but also to save them onto their USB flash drives and take .pdfs with them. Klammler's Blog provides great account of the case. He also gives the case very interesting context, by stating that:
Should the ECJ confirm the library’s right to continue its practises, this could become a considerable win for public libraries unwilling to accept digital restrictions management (DRM) encumbered e-books with unjust licensing agreements. Instead of buying the cumbersome DRM products, they would simply scan the printed book and be fine with whatever document format they’d prefer.
For some further analysis see also TeleMedicus. And when we talk about DRMs, I shall also at least mention Nintendo C-355/12 pending case, which you all probably already heard of.

  • Cross border IP torts and jurisdiction
In IP related private international law, two new interesting German cases popped-up. Firstly, it's Hi Hotel C-387/12, where the referring court (BGH) asks CJEU whether a court has jurisdiction to adjudicate both on copyright infringement in its territory and also on any contributing act which took place in another member state carried out by a party which assisted in the tort or delict in issue. See the referral decision (Hi Hotel, I ZR 35/11) and comment on EU Law Radar.

The second case is very similar Coty Prestige Lancaster Group GmbH C-360/12, where  jurisdictional issues related to trademark infringement and unfair competition are beeing considered. According to the referral decision (Parfumflakon II, I ZR 1/11) BGH had a trouble seing whether the rule included in Art. 5(3) of Brusel I. and Art. 93(5) of CTMR are of the same content.

Art. 5(3) of Brusel I. reads: "A person domiciled in a Member State may, in another Member State, be sued: (3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.".

Art. 93(5) of CTMR (40/94) reads: "Proceedings in respect of the actions and claims referred to in Article 92, with the exception of actions for a declaration of non-infringement of a Community trade mark, may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened, or in which an act within the meaning of Article 9 (3), second sentence, has been committed."

The rule of Art. 5(3) is in the jurisprudence (e.g. Wintersteiger C-523/10) broken down into:
a) the place where the damage occurred (Erfolgsort [DE], miesto následku [SK]) and
b) the place of the event giving rise to it (Handlungsort [DE], miesto konania [SK]).


The importance of this is that in case, same as in Hi Hotel, when the act of assistance in an infringement is carried out in the territory of one member state, and it contributes to the direct infringement in a second member state, can be such a case heard also before the court of the second member state? (here Germany). The underlying rationale behind is whether contributory act shall be seen as part of the direct infringement act/harm in lex fori, or as a separate act/harm. In Coty Prestige, a Belgian company is being sued in Germany for supplying certain infringing parfume bottles to a German seller. Belgian company did not act in Germany, but served as a source of infringing activity of the German seller (direct infringer).

In my personal opinion, outcome of this case might be very interesting especially in regard to online secondary liability for infringements. I also just spotted that EU Law Radar reports even third similar German preliminary reference that was filed, although not related to the IP - Melzer C-228/11.

For those interested in Football Dataco v. Sportradar C-173/11, I will soon try to cover this interesting decision.

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