Lecture 3: Copyright

Vlaamse Belang v Ikea AG Opinion

• Concluded that Vlaams Belang’s use of IKEA’s reputed marks in a political campaign did not constitute “due cause.”.

• Political campaigns may still fall “in the course of trade” if they seek electoral or economic advantage, including access to public funding.

• Due cause:

  • Interpreted through fundamental rights, requiring a legitimate and necessary justification.

• Criteria for due cause:

  • Requires assessment of intent, compelling justification, and the balancing of rights

Copyright Subject Matter: Creativity vs Functionality

• Copyrights are for protecting creativity. If a design aims for a practical goal of functionality, it is not creative.

• Wide scope: The catalogue of works that can be protected by copyright is basically endless.

• Field of literature and the arts, including writings, musical compositions, and visual arts. 9(2)BC

Geographical Indications

• Wine Case (SEX en Provence): The question was whether seeing a bottle labeled "SEX en Provence" would invoke the geographical evocation of ‘ex on provence’.

• Violation Rule: Anything that invokes the geographical indication is a violation.

EU Harmonization and Berne Convention (BC) 

• EU Goal: The EU aims to harmonize copyright, currently up to 70 years post-mortem, to ensure rights support the family of the copyright holder. Harmonized standards are necessary to allow free trade in the EU and prevent parallel trade issues.

• Berne Convention (BC) Art 5: Provides for National Treatment & Non-Discrimination (equal treatment of non-nationals and nationals) and Minimum Harmonization.

  • Protection in the country of origin is governed by domestic law (Art 5(3) BC).

• Formality Rule 5(2) BC: Copyright is not subject to any formality. This means copyrights are not registered in the EU. The US practice of registering copyrights may be in violation of the BC.

Corpus Mysticum

• The intangible, intellectual creation (the work itself), which is capable of copyright protection.

Corpus Mechanicum:

• The physical object it is on (the material support), which is capable of ownership.

• Owning the physical work does not mean you own the copyright.

Protection Limit 

• 9(2) TRIPS 

• Copyright protection extends to expressions, but not to ideas, procedures, methods of operation, or mathematical concepts as such.

• Value and Effort:

  • Commercial importance, economic value, or the level of effort put in are irrelevant to protection, rejecting the ‘sweat of the brow doctrine’ (mentioned alongside the Feist decision). Protection is irrespective of literal and artistic merit or quality.

 Subject Matter Examples

• Furniture from Discarded Wood (Piet Hein Eek): The idea of making furniture out of discarded wood is too general to be CR protected. However, the specific arrangement of the planks resulting from an original choice is CR protected.

• Fatboy Beanbag: It was argued that making a beanbag the shape of a pillow was an indication of creativity, giving a typical visual effect different from other beanbags on the market, meaning it was probably creative.

• Creative Combinations: It is possible to have a creative work resulting from a creative combination or rearrangement of already existing elements, such as in fashion.

Computer Programs

• Protected by CR (Art 10(1) TRIPS; Dir 2009/24/EC). Different programmers writing code for the same function will produce different expressions, justifying CR protection over patent protection for the function itself.

Databases

• Protected (Art 10(2) TRIPS; Database Directive 96/9/EC). They are considered creative if the selection or arrangement is creative (e.g., selecting "beautiful" poems).

Originality Standard

• NL Standard: Own original character carrying personal stamp of the author.

• EU Harmonization Standard: The ECJ established the standard of "own intellectual creation" (Database Directive Art 3; established in Infopaq C-5/08 and Painer).

• Painer Clarification: Copyright protects any original work reflecting the author's "personality". This requires the author to have made free choices + creative choices, a threshold considered extremely low. Infopaq applied this standard to 11-word extracts from newspapers

Copying

• Art 2 CDir:

• Infringement occurs regardless of the means of copying, how much is copied (small parts, whole, substantial part, core, samples, frame of a movie, or 2D/3D reproduction), or whether the copy is temporary or permanent.

Online Linking

• Linking to a publicly available and legal source is not CR infringement.

• Linking to an illegal source is CR infringement.

• Companies have a due care obligation to investigate the legality of the sources they link to; individuals have a defense if they didn't know or couldn't know.

Infringement by Author

• An author can infringe their own CR if they have sold the original work and transferred the copyright. Some jurisdictions exclude this possibility so artists can make series of works.

Right of Adaptation

•  This exclusive right allows the author to adapt a work. It is an open question whether this requires a new right or if it is covered by the exclusive right of copying in another form, as it is not in the CR Directive.

Communication to the Public (art 3 CDir)

• Lagardere and Rafael Hotels: Hotel owners providing broadcasts via televisions in guest rooms perform a "communication to the public" because they are providing access to a new, broader audience, requiring copyright authorization.

• ECJ Del Corso (Dentist): A dentist playing background music in their practice 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.

• New Public Test: Communication takes place to a new public—one that was not foreseeable to a certain public. The actual audience is irrelevant.

• Radio Streaming Example: When someone links to an open online stream provided by a radio station, it is not a new communication to the public if the broadcast itself is already legally online and accessible to everyone.

Distribution and Exhaustion (art 4 CDir)

• Distribution: Covers trading illegal copies, lending (for free), and renting (for compensation).

• Exhaustion Principle: Once a product incorporating IP/CR is sold and put on the market in the EEA, the distribution rights are exhausted, allowing the product to be freely traded. Rights are not exhausted if products are first sold outside the EEA, allowing parallel trade into the EU.

• UsedSoft (C-128/11)

• Tom Kabinet (C-263/18)

Moral Rights (Art 6 BC)

• Moral rights protect the bond between the author and his work and can be inherited.

  • Right of Attribution: The right to be attributed to the work.

  • Integrity Right: Protection against distortion, mutilation, or other modification of the work that is prejudicial to his honour or reputation. This is particularly relevant in architecture.

  • "Shoot the Widow": Moral rights are referred to under Art 6bis(2) BC. The existence of moral rights was one of the reasons the US was slow to join the Berne Convention.

Authorship & Ownership

• General Rule: The author holds the CR.

• National Exceptions: National laws allow exceptions where rights may vest in employers (works made for hire or under contract).

• EU Concept of Author: The ECJ safeguards the concept of "author" (ECJ in NOB/ONB). There is an anticipated move towards fully harmonizing the concepts of authorship and ownership by the CJEU (citing Prof. Hugenholtz on the Kwantum v. Vitra decision).

• Works Made Under Supervision: The person who provides supervision and thinks up the work is the author, even if others are employed to execute the physical work.

Limitations & Exceptions

• System Type: The EU uses a closed system of limitations. This contrasts with the Common Law fair use system.

• Temporary Copy (Art 5(1) CDir): Allowed for lawful use in an electronic environment (e.g., software function or caching).

• Harmonization Failure: Article 5 CDir offers a catalogue of existing limitations that Member States can select from, which does not lead to harmonization in practice.

• Private Use Copy

• Other Examples of Limitations (Optional)

Private Use Copy

• Permitted only for personal use (e.g., making notes in a book). This exception requires equitable remuneration for CR holders, often collected via a home copy levy on devices. Downloading illegally does harm the normal exploitation of the works, implying the private use exception may not cover it.

Other Examples of Limitations

• Photocopying against fair compensation, exceptions for libraries, hospitals, prisons, archives, museums, use for teaching/scientific research (Art 5 DSM Dir), reporting on current events, architecture/sculpture in a public place, and caricature/parody.

Three Step Test (BC Art 9(2))

• Step 1: Must be confined to "certain special cases"

  • Exceptions cannot be overly broad; they must be specific and well-defined.

• Step 2: Must not conflict with a "normal exploitation" of the work

  • Prevents exceptions from undermining the primary ways copyright holders earn income or competing directly with the work's normal market.

• Step 3: Must not "unreasonably prejudice the legitimate interests of the author"

  • A proportionality test ensuring the harm is not disproportionate. Equitable remuneration can sometimes serve to prevent prejudice from becoming unreasonable

Technological Measures

• Protection via digital rights management is allowed. Circumventing these measures constitutes a tort (Art 6 CDir). Rightholders can apply for an injunction against intermediaries (Art 8(3) CDir). Legal protection is also provided against removing rights management information (Art 7 CDir).

Portrait rights

• These are rights in personam attached to an individual, often linked to CR law. They allow the individual to oppose the use of their portrait for commercial purposes (related to "cashable popularity") or based on privacy interests.