Lecture 3: Copyright Cases

Wine Case (SEX en Provence)

• Geographical Indications (GI)

• Anything that invokes the geographical evocation of the indicator (e.g., 'Coteaux d'Aix-en-Provence') is a violation.

Birkenstock v Doc Martin

• Copyright Subject Matter / Functionality

• Debated whether the Birkenstock sandal design, which was chosen for a functional goal (being comfortable), could be copyrighted. It illustrates the lack of harmonization, as German courts required a "certain level of artistic design," whereas the Netherlands found protection based on "some originality".

Feist decision

• Copyright Subject Matter / Efforts

• This decision relates to the rejection of the ‘sweat of the brow doctrine,’establishing that efforts or commercial importance are irrelevant to copyright protection.

HR 16 June 2006, NJ 2006, 585 Lancôme/Kecofa

• Copyright / Scent Protection

• Established in the Netherlands that perfume scents are eligible for copyright protection as a product of human intellectual creation, provided they are identifiable with sufficient precision and objectivity.

ECJ 13 November 2018, C-310/17 (Levola/Smilde)

• Copyright / Taste Protection

• Ruled that the taste of food cannot be protected as a copyright work under EU law because it cannot be expressed in a manner identifiable with sufficient precision and objectivity, which is necessary to avoid subjectivity and ensure legal certainty.

ECJ 16 July 2009, C-5/08 (Infopaq)

• Copyright Originality Standard

• Established the single EU-wide originality standard: the subject matter must be the author’s "own intellectual creation". This standard was applied even to short extracts (e.g., 11 words) from newspapers

Painer

• Copyright Originality Standard / Personality

• Clarified that copyright protects any original work reflecting the author's "personality", satisfied when the author makes free choices + creative choices.

Cofemel (C-683/17) & Brompton (C-833/18)

• Copyright / Industrial Design

• Used to define that industrial design protection requires "Free and creative choices".

District court Alkmaar, 20 February 2007 (Piet Hein Eek Furniture)

• Copyright / Idea vs. Expression

• Found that while the idea of making furniture from discarded wood is too general to be protected, the specific way the planks are arranged constitutes an original choice and is CR protected.

Court of appeal ‘s-Hertogenbosch, 16 February 2010 (Fatboy beanbag)

• Copyright / Industrial Design

• Determined that the unique pillow shape and visual effect of the beanbag was an indication of creativity

Svensson

• Online Linking / Copying

• Established that linking to a source that is publicly available and legal is not copyright infringement.

GeenStijl

• Online Linking / Illegal Sources

• Established that linking to an illegal source constitutes CR infringement. Companies linking to content have a due care obligation to investigate the legality of the sources.

ECJ Lagardère and Rafael Hoteles

• Communication to the Public

• Established that hotel owners transmitting broadcasts via television sets in guest rooms perform a "communication to the public" requiring authorization, as they provide access to a new, broader audience.

ECJ 15 March 2012, C-135/10 (Del Corso; Dentist waiting room)

• Communication to the Public

• Ruled that a dentist playing background music is not a "communication to the public" requiring royalty payments, as the audience is not a distinct, targeted public and the activity lacks a profit-making purpose

ECJ 3 July 2012, C-128/11 (UsedSoft)

• Exhaustion / Software

• Established that the resale of used, downloaded software licenses is legal in the EU, applying the principle of exhaustion after the first sale of a perpetual license, provided the original copy is made unusable.

19 December 2019, C-263/18 (Tom Kabinet)

• Exhaustion / E-books

• Ruled that reselling "second-hand" e-books is not permitted, as the transfer is considered a "communication to the public," not a distribution. The principle of digital exhaustion does not apply to e-books because, unlike physical copies, they do not decrease in quality

ECJ in NOB/ONB

• Authorship / EU Concept

• Safeguarded the concept of "author" as a term found in the Copyright Directive, ensuring authors retain the possibility to negotiate their rights.

Kwantum v. Vitra

• Authorship / Harmonization

• Mentioned as context pointing toward the likely full harmonization of the notions of authorship and copyright ownership by the CJEU.

ECJ Magill

• Abuse of Dominant Position

• Established that enforcing copyright could constitute an abuse of a dominant position under competition law in exceptional circumstances if it creates an unjustified monopoly in a derivative market.