TY - JOUR AB - The authors This contribution is the result of a joint effort of several Bird & Bird IP lawyers in different jurisdictions who prepared individual country reports. In alphabetical order, the authors are Roman Brtka, Daniele De Angelis, Rebecca Fassihi, Daria Gęsicka, Troy Gurnett, Anna Kallio, Bettina Kövecses, Charlotte Haine, Bálint Halász, Andrea Jarolímková, Sabrina Lodder, Teresa Mercadal Menchaca, Shariqa Mestroni, Ella Mikkola, Clemens Molle, Mikko Nurmisto, Peer B Petersen, Katie Rimmer, Martin Senftleben, Graham Smith, Michał Sałajczyk, Edouard Treppoz, Benoit Van Asbroeck, and Kajsa Zenk. The reports were collated and edited by Eleonora Rosati. This article In 2019, national courts in individual EU Member States and in Australia delivered a series of important rulings in the copyright field. This contribution provides a round-up of the most significant judgments issued in the period 1 January—–31 December 2019. As far as decisions in EU Member States are concerned, the selection has been made by giving precedence to areas in which EU harmonization has occurred (including economic rights, exceptions and limitations, and enforcement), so that guidance provided by national courts in a certain country might be useful also to practitioners and courts in other EU Member States. The analysis is divided by area (economic rights, exceptions and limitations, enforcement issues and other issues) and country (Australia, Belgium, Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, the Netherlands, Poland, Spain, Sweden and UK). Introduction In 2019, national courts in individual EU Member States and in Australia delivered a series of important rulings in the copyright field. This contribution provides a round-up of the most significant judgments issued in the period 1 January—–31 December 2019 and, in some cases (ie where the decision at issue is of particular relevance), at the very end of 2018. As far as decisions in EU Member States are concerned, the selection was made giving precedence to areas in respect of which EU harmonization has occurred (including economic rights, exceptions and limitations, and enforcement), so that guidance provided by national courts in a certain country might be useful also to practitioners and courts in other EU Member States. The analysis is divided by area: I. Economic rights  A. Right of reproduction  B. Right of distribution  C. Right of communication/making available to the public  D. Other rights II. Exceptions and limitations  A. Parody  B. Quotation  C. Private copying  D. Other exceptions III. Enforcement issues  A. Online enforcement  B. Damages  C. Procedural aspects IV. Other issues  A. Subsistence of copyright  B. Overlapping IP rights  C. Contractual issues  D. Collective rights management  E. Moral rights V. Referrals to the Court of Justice of the European Union (CJEU) in 2019 and country: Australia, Belgium, Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, the Netherlands, Poland, Spain, Sweden, and UK. Each selected decision is presented according to the following template: case reference; short summary; analysis; practical and broader significance. I. Economic rights A. Right of reproduction Australia (1) The Dempsey Group Pty Ltd v Spotlight Pty Ltd [2018] FCA 2016, 18 December 2018, Federal Court of Australia, Davies J. (2) The Dempsey Group Pty Ltd (Dempsey) and Spotlight Pty Ltd (Spotlight) commissioned the same third party to manufacture bed linen that featured various artistic works. The key issues before the court were (i) whether Spotlight had reproduced a substantial part of the artistic works owned by Dempsey and (ii) whether Spotlight had actual or constructive knowledge of the infringement. (3) In holding that a substantial part of the artistic works had been reproduced in the relevant works commissioned by Spotlight, Davies J applied the principles from two key cases involving artistic works in Australia. First, Davies J applied Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580 in which it was held that it is important to consider whether the taken portion is an essential or material part of the work, which should be ascertained by reference to the elements that make the work an original artistic work or give rise to the ‘look and feel’ of an artistic work. Secondly, Davies J applied Seafolly Pty Ltd v Fewstone Pty Ltd (2014) 313 ALR 41, holding that ‘it is unnecessary that the two works bear an overall resemblance to each other’. In her analysis, Davies J expanded upon the above principles, stating that an artistic work should not be dissected but, rather, the features that give rise to the work's artistic quality are paramount. Such features include the colour, layout, structure and integers, the cumulative effect of which creates the desired ‘look and feel’ of the work. Accordingly, the court held that a number of designs in Spotlight's linen had sufficient objective similarity to and were, on a qualitative assessment, a reproduction of a substantial part of a number of Dempsey's artistic works. On the issue of actual or constructive knowledge that the making of an article in Australia would have constituted an infringement, the court held that on the evidence, there was no reason for Spotlight to have been put on notice that they ought to have made further enquiries. (4) This case provides some comfort to companies conducting business in Australia that engage third-party manufacturers outside of Australia. If the manufacturer provides the company with design samples, the company would not be expected to make further enquiries about where the artworks in the design samples originated (but this will depend on the circumstances). In the above case, the court held that there was no obligation for Spotlight to make further enquiries as to the source of the material of the design samples—it was reasonable for Spotlight to rely on the manufacturer to confirm which samples could be used without changes and which could only be used for inspiration. However, the case also highlights the importance of taking quick action after receiving a notice of infringement as any subsequent reproduction may constitute an infringement. The defence of innocent infringement is not available and the copyright owner could claim damages or an account of profits for such infringements (and potentially additional damages on the basis of flagrancy). Germany (1) BGH, judgment dated 10 January 2019—I ZR 267/15—Cordoba II (2) A photographer sought injunctive relief and damages as a picture he had taken of the city of Cordoba had been included in a student's presentation posted on the website of a school. The photographer had not consented to this use. Instead, the picture was downloaded from a publicly accessible website of an online travel magazine, on which the picture was used with the photographer's consent. (3) Germany’s Federal Court of Justice (BGH) ruled that the photographer's right of making works available to the public pursuant to section 19a of the German Copyright Act (UrhG) was infringed. By means of the aforementioned controversial act, the photograph protected by copyright is made accessible to a ‘new public’ that the claimant had not in mind in the context of the use of the photograph on the website of an online travel magazine. Furthermore, the copying of the photograph on the server prior to the publication on the school website also constitutes an infringement of the right of reproduction pursuant to section 16 of the UrhG. (4) The decision strengthens the creators' rights and clarifies once more that the publication of publicly accessible protected works without the consent of the holder of rights principally remains a copyright infringement, even if the infringing action is rather insignificant from an economic point of view. This is also not changed by the fact that the work was previously uploaded to the quoted website with the creator's consent. (1) Higher Regional Court of Munich, judgment dated 22 November 2018—29 U 3619/17—Unerlaubte Vervielfältigung von Musikaufnahmen (2) In response to a complaint filed by a phonogram producer, the operator of an Internet music service was ordered to refrain in particular from the unauthorized reproduction of musical works, as its customers were enabled to enter music titles into a wish list on the basis of which these titles were automatically searched for in the programmes of approximately 400 Internet radio stations, recorded and stored in a cloud-based storage space of the respective customer. (3) The Higher Regional Court of Munich stated that the automated technical process of reproduction is solely caused by the respective user by adding the music titles to his/her wish list and that the use of technical means by third parties does not change the producer's capacity. In the present case, however, the user also instructed the Internet music service to make a copy of a specific work. The service was thus not only used for the copy but also for the previous search for the copy template. This search service might be irrelevant in terms of copyright. However, it was relevant for the assessment of the question whether an admissible private copy is at hand. The Internet music service extended the possibilities for the user to compile a collection of music titles protected by copyright from publicly accessible sources without paying a fee to the rightholders. The service provider was responsible for this relevant service. (4) The court discussed the important question of who is responsible for a copyright infringement when a person makes use of service providers as in the present case. If the service provider does not only serve as a mere tool of the user but, for instance, takes over the specific collection of copy templates, the reproduction action may be attributable to the service provider and not to the user so that a privileged private copy within the meaning of section 53(1) sentence 2 UrhG is not at hand. B. Right of distribution Sweden (1) Supreme Court, The Prosecutor v I.S., NJA 2019 section 423, 28 May 2019 (2) A shop owner illegally selling goods incorporating copyright-protected motifs was found to infringe the rightholder's exclusive right to distribute said motifs, also with respect to stored goods with similar motifs, provided that the purpose of the storage of the goods would be a future sale. (3) I.S. owned a shop in Stockholm and sold goods with rock music motifs. Many of the goods were infringing copies. In addition to being stored in the shop, the goods were stored in two separate storage units. The prosecutor claimed that I.S. was breaching the Swedish Copyright Act in relation to all of the copyright-protected goods, including the goods in the separate storage units. The Patent and Market Court of Appeal found that the goods in the two storage units did not infringe any copyright, as it could not be established from the investigation that the goods in question had actually been distributed to the public. The Supreme Court granted leave to appeal and requested a preliminary ruling from the CJEU. The CJEU found (Syed, EU:C:2018:1033) that it follows from Article 4(1) of Directive 2001/291 that the storage by a retailer of goods bearing a motif protected by copyright in the territory of the Member State, where the goods are stored, may constitute an infringement of the exclusive distribution right. This is the case when that retailer offers for sale, without the authorization of the copyright holder, goods identical to those which he is storing, provided that the stored goods are actually intended for sale in the territory of the Member State in which that motif is protected. The Supreme Court stated that the goods in the storage units corresponded to the goods sold in the shop and that the shop was refilled with goods from these units. It had therefore been shown that the stored goods were intended for sale. Based on this I.S. was found to infringe the rightholder's copyright. (4) In contrast to the EU Trade Mark Regulation 2017/1001,2 Directive 2001/29 does not expressly prohibit storage of copyright-protected material for the purpose of distribution. Through its preliminary ruling, the CJEU established that the mere storing of copyright protected goods can, however, infringe the exclusive right to distribute the goods. The decision strengthens the copyright protection beyond what is explicitly stated in legislation, both in Sweden and at the EU level. C. Right of communication/making available to the public Australia See below at Section III.A. Finland (1) Market Court, 524/19, A v Sanoma Media Finland Oy, 10 December 2019 (2) The court decided that Sanoma Media Finland Oy had infringed the applicant’s copyright by making available to the public via television, radio and Internet an adaptation of a work consisting of composition and lyrics. (3) The court referred to a statement issued by the Copyright Council which states that the work had been adapted as the lyrics had been shortened by leaving out verses 7–10 from the end of the song. The court referred to a part of the Copyright Council's statement concerning the assessment of adaptation and held that such making of an adaptation required permission from the author of the work. (4) The Copyright Council is appointed by the Finnish Government. Statements issued by the Copyright Council are in the form of recommendations and they are not legally binding. Courts of law may refer to the statements issued by the Copyright Council in their judgments. This decision, which is not final, is a good example of how a statement issued by the Copyright Council may become a part of a court judgment. France (1) Cour de cassation 4 July 2019—No 16–13.092—Playmédia v France Television (2) A website used in-line linking to programmes of French TV channels, which were available elsewhere on the Internet. The question was whether the use of these hyperlinks required the authorization of the TV channel on the grounds of neighbouring rights. (3) For those who are aware of CJEU case law, the answer seems quite easy to give. Indeed, after the decisions in Svensson, C-466/12, EU:C:2014:76 and BestWater, C-348/13, EU:C:2014:2315, it is clear that hyperlinking to authorized content does not amount to an act of communication to the public. Nevertheless, the French highest civil court considered that these CJEU decisions were not applicable to the case at hand, since authorization is not required for copyright, but rather for neighbouring rights. The court based its reasoning on an existing CJEU decision—the one in C-More, C-279/13, EU:C:2015:199—in which it was stated that ‘Article 3(2) of Directive 2001/29/EC … must be interpreted as not precluding national legislation extending the exclusive right of the broadcasting organizations referred to in Article 3(2)(d) as regards acts of communication to the public which broadcasts of sporting fixtures made live on the internet, such as those at issue in the main proceedings, may constitute, provided that such an extension does not undermine the protection of copyright.’ As a consequence, a hyperlink provided without the authorization of the copyright owner would amount to an infringement, as neither Svensson nor Bestwater are applicable to neighbouring rights. (4) The court overinterpreted the C-More decision. If it were possible in that case not to be bound by the EU harmonization, it was because the act litigated went beyond the scope of harmonization. As it was live on the Internet, the communication at issue did not fall within the scope of EU harmonization, authorizing yet not to follow EU law. The French court did not take into consideration this part of the reasoning and drew a distinction between copyright and neighbouring rights, which is not in line with EU law. The Netherlands (1) District Court Midden Nederland, 19 September 2018, NL:RBMNE:2018:4388, Woonzorgvoorziening v Sena and Buma, and District Court Amsterdam, 24 July 2019, NL:RBAMS:2019:5392, KNMT v BUMA (2) The question of whether there is a communication to the public cannot be answered in a general sense, but requires an individual assessment. (3) Woonzorgvoorziening requested a declaratory decision that there was no communication to the public pursuant to Article 12 of the Dutch Copyright Act and Article 2(1)(d) of the Dutch Neighbouring Rights Act. Considering the CJEU decisions in SGAE, C-306/05, EU:C:2006:764 and PPI (Ireland), C-162/10, EU:C:2012:141, the District Court of Midden Nederland ruled that a group of no more than 10 people was too small to be considered a relevant public. In the case between KNMT and BUMA, the District Court of Amsterdam followed a different approach. KNMT, a Dutch association of dentists, sought a declaratory decision that playing background music in dental practices did not amount to a relevant act of communication to the public. This request was based on KNMT’s interpretation of the CJEU judgment in Del Corso, C-135/10, EU:C:2012:140 and the later confirmation in Reha Training, C-117/15, EU:C:2016:379 that the same concept of ‘communication to the public’ had to be applied in copyright and neighbouring rights law. In Del Corso, the CJEU considered that ‘as regards the patients of a dentist such as the one in the case in the main proceedings, it must be observed that they generally form a very consistent group of persons and thus constitute a determinate circle of potential recipients, as other people do not, as a rule, have access to treatment by that dentist’. According to the District Court of Amsterdam, these assumptions of the CJEU regarding an average dental practice could not detract from the fact that there may be dentist practices where these assumptions could not be applied. As dental practices continued to expand, it could not be ruled out that a larger group of persons was present in the practice rooms than in the Del Corso scenario. Moreover, it had to be considered that certain dental practices used music for therapeutic purposes. In such a case, a profit motive could not be excluded. Hence, a general declaration that dental practices never carry out acts of communication to the public is not possible. The assessment always depends on the individual circumstances surrounding music use in the practice concerned. (4) The criterion ‘the public’ requires an individual assessment. It is not possible to derive a general immunity of dental practices against ‘communication to the public’ claims from the CJEU Del Corso decision. Italy (1) Supreme Court, 21 February 2019, No 7708—R.T.I. v Yahoo! (2) The users of video sharing platform uploaded contents reproducing extracts of TV programmes produced and communicated to the public by a broadcaster. The latter sued the platform operator arguing that it would be directly liable for the making available of the infringing content. (3) The Supreme Court took position on two main disputed issues relating to the application of the hosting safe harbour under the Italian equivalent of Article 14 of Directive 2000/313: (i) the distinction between active and passive hosting providers, where only the passive one benefit from the safe harbour rules and (ii) what information the rightholder has to give to the hosting provider in order to identify the infringing content to be removed. The Supreme Court distinguished the two types of hosting providers by saying that a provider is active to the extent that it carries out interference activities, (also) by means of technological tools, which increase users' loyalty and substantially result in completing and enriching, in a non-passive way, the use of contents by users. According to the court, the active role of a hosting provider requires the ascertainment on a case-by-case basis of the following indicators of interference (open-ended, non-cumulative list): activities of filtering, selection, indexing, organization, cataloguing, aggregation, evaluation, use, modification, extraction and promotion of content. As for the duty of a rightholder to identify the infringing content, the Supreme Court stated that the judge competent to decide the merits of the case has to ascertain whether: (i) the hosting provider, on the basis of the technology in its hands or in the hands of others providers, is able to identify infringing content by means of name, title or other descriptive elements of TV programmes or (ii) it is necessary to localize the content by providing an indication of the relevant URLs. (4) The Supreme Court decision leaves some questions unaddressed, in particular: (i) whether the presence of indicators of interference is relevant in itself or to the extent that it requires the actual and constructive knowledge of the unlawfulness of content and the consequent exploitation thereof by the provider; (ii) to what extent the identification of unlawful contents by using descriptive elements provided by the rightholder contrasts with the monitoring and searching activities excluded by safe harbour rules. These issues will be likely decided by the CJEU in the pending cases YouTube, C-682/18, Stichting Brein, C-442/19 and Puls 4, C-500/19. In addition, the Italian law implementing E-commerce Directive subjects the removal of content by Internet service providers (ISPs) to a decision of competent courts/authorities. This rule is not widely applied. (1) Court of First Instance of Rome, 15 February 2019—R.T.I. v Facebook (2) A social network profile published, inter alia, links to extracts of TV programmes made available by end-users on a video sharing platform without the consent of the broadcaster. The latter claimed that the provision of such links infringed its copyrights and neighboring rights since it would fall within the definition of communication to the public. (3) The Court of First Instance of Rome acknowledged that providing links through a social network profile to contents made available to the public on a video sharing platform without the necessary consent of the rightholder amounts to an act of communication since it is addressed at a new public. It follows that this activity falls within the scope of protection of copyright and neighboring rights as owned by the broadcaster. The court rooted its reasoning within the CJEU decision in Stichting Brein, C-527/15, EU:C:2017:300. The court also established the liability of the provider of the social network platform. (4) Besides the more or less appropriate reference to Stichting Brein, the decision has to be evaluated taking into account the CJEU decision in GS Media, C-160/15, EU:C:2016:644. In that case, the CJEU stated that the provision of a hyperlink to a copyright work made available to the public without the rightholder's consent through a third-party website amounts to an act of communication to the public to the extent that the person who provides the hyperlink: (i) seeks financial gain and/or (ii) is aware that the works were initially made available to the public without the rightholder's consent. It follows that linking to unlicensed works is not always unlawful. This aspect also has an impact on the issue of the hosting provider’s own liability. It goes without saying that there is no liability to the extent that the provision of links is not unlawful. Spain (1) Judgments of the Appeal Court of León No 38/2019 and 249/2019 issued on 7 February and 18 June 2019, Ayuntamiento de León (León Town Hall) v Sociedad General de Autores y Editores (SGAE) (2) Collaborators of the infringer were considered infringers. A limitation was acknowledged for the passive procedural standing of the owner of premises (in this case, a town hall) where public communication of works took place and there was no payment to the corresponding collective management society (in this case, SGAE): it depends on the participation of the owner of the premises in the acts of public communication, and a mere lease of premises (even conditioned) is not enough. (3) Article 138 of the Spanish Copyright Act establishes that collaborators of the infringer that know or have reasonable reasons to know the infringement and have a direct economic interest in the infringement shall be also considered liable for the infringement. The judgments refer to several cases in which town halls were found liable as collaborators or infringers for communication acts performed by third parties, mainly in cases where the town hall had organized the context of the performance or received a commission (eg in the context of local festivities). In contrast, the judgments considers that, in view of the agreements signed by the León Town Hall with the direct infringers in the case at stake, the town hall did not have passive procedural standing because it just leased the use of the public auditorium without the participation of the town hall as an organizer. This position stood irrespective of whether the town hall had a certain control over the activity to be performed (justified because a public premise is being leased) and, in one of the cases, the municipal cultural programme included the event to be performed. (4) Two key points for this conclusion are that: (i) the performance was done at the own risk of the third party and (ii) with no right for the benefits for the town hall, which just received an amount for the leasing. The cultural interests of a town hall in the leasing of its premises for cultural activities cannot determine on its own consideration of the town hall as an infringer. The relevance of the content of the agreements between the infringers and the collaborators is also relevant to determine the potential liability of the latter and, especially, the involvement of the collaborator in the activity and in the gain of profits associated with the infringing activity as such. A mere lease of a premise where the infringement is carried out is not sufficient. UK (1) Warner Music UK Ltd and another v TuneIn Inc [2019] EWHC 2923 (English High Court, Chancery Division, Birss J), 1 November 2019 (2) Communication to the public of claimants' sound recordings by a website and apps, providing links to Internet radio streams. Authorization. Joint tortfeasorship. (3) In this case, the claimants and the groups they represented own, or hold exclusive licences to, copyright in music sound recordings. Together they accounted for more than half the market for digital sales of recorded music in the UK and about 43 per cent globally. The defendant US company's TuneIn Radio service is available on its website, via mobile apps, and on other devices such as televisions, car audio systems, smart speakers and wearable technologies. It provides its users in the UK and elsewhere with access to over 100 000 radio stations from around the world including tens of thousands of music radio stations. The claimants alleged infringement of UK copyright by communication to the public. TuneIn argued: that linking to real-time broadcast streams did not amount to communication to the public of sound recordings. The link had to make the work available on demand, ie at the time and place of the Internet user's choosing; that in any event, since the works were already freely available on the Internet without geographic or other restriction, there was no communication to the public; that its links to non-UK stations did not amount to targeting the UK, so there could be no infringement of UK copyright; that if GS Media, C-160/15, EU:C:2016:644 principles applied in respect of links to unlawful streams, then TuneIn could rebut the presumption of knowledge of illegality. The significance of legality or illegality of the target site, compared with consent of the copyright owner to the work being made freely available on that site, was also in dispute. For the purposes of the trial sample, Internet radio stations were selected and divided into four categories. The fourth category (premium stations created for TuneIn and made available exclusively to TuneIn's subscribers) was withdrawn for UK users after proceedings commenced. This note does not include aspects of the judgment relating to premium stations. The three categories of broader significance were: Stations licensed under UK copyright (such as BBC Radio); Stations not licensed anywhere in the world; Stations licensed (including under a statutory licence) in a country outside the UK. Birss J held that the TuneIn site was targeted to the UK and that TuneIn infringed the communication to the public right in respect of Categories 2 and 3, but not Category 1, stations. He declined to apply either GS Media or Svensson, C-466/12, EU:C:2014:76 principles, holding that this was a factual situation different from either case. TuneIn's liability in both Categories 2 and 3 was strict, rather than knowledge-based as in GS Media. Birss J also held that TuneIn's targeting had the result that the linked to Categories 2 and 3 Internet radio stations themselves targeted the UK if selected by the user and thus committed an act of UK copyright infringement. He went on to find that TuneIn was liable for infringement by authorizing those infringements. It was also a joint tortfeasor with the Internet radio stations in relation to those infringements. Birss J's overall reasoning included some significant interpretations of CJEU case law: The CJEU in GS Media did not have in mind the difference between lack of consent of the copyright owner and illegality, which on the facts of GS Media were synonymous. It did not intend to use ‘illegally posted’ in a sense different from an absence of consent of the rightholder. Where there has been an initial communication to the public with the consent of the rightholder, the public taken into account by the rightholder cannot be determined without knowing the nature of the later act of communication said to infringe. A holistic approach is required. It is necessary to look at the circumstances as a whole. The nature of the putative act of communication should not be kept in a silo, separate from the question of the public. Thus, the public said to be taken into account for the purposes of a later hyperlink (eg Svensson) and for a later posting (eg Renckhoff, C-161/17, EU:C:2018:634) may be different. The court was not concerned with the terms of any actual copyright licence under which the copyright owner consented to an initial communication. The court was asking, given the existence of consent in fact: what is its practical effect? The individualized assessment required by the CJEU case law applies to the circumstances as a whole, not only to the act of communication. There are not just two simple categories of communication to the public on the Internet: posting and linking. Ultimately, the assessment is an individualized and case-specific assessment which must be carried out as a whole. Linking liability was not restricted to making the work available at the time of the Internet user's choosing. It could apply where the link was to a stream the contents of which at any one time were determined by the Internet radio station. Applying the holistic approach, Birss J analysed the TuneIn service as a whole, also comparing it with the kind of conventional search engine service which is a necessary part of the normal functioning of the Internet. He regarded as significant the following features of the TuneIn service: aggregation, categorization, curation of station lists, personalization of content, search functionality, station information and artist information. He regarded aggregation as distinguishing the TuneIn service from simple hyperlinking; and aggregation, artist searches supported by metadata collection and curation, framing and the persistent nature of the stream over time, as distinguishing the service from conventional search engines. He concluded that, for those reasons, TuneIn intervened directly in the provisions of links to the streams in a manner that neither conventional search engines nor conventional hyperlinks do; and that therefore TuneIn's activity was an act of communication to a public. He then considered the sample station categories. For Category 3 (stations licensed, including under a statutory licence, in a country outside the UK), he held that there was an initial communication to the public to which the rightholder's consent (in some cases deemed consent) had been given. However, the deemed consent should not be regarded as extending to acts targeted at users in the UK. The most it should be taken to be was a ratification aimed either at users of the local website in question or, at most, users in the locality in question as a whole. However, it also had to be recognized that the activity does in fact make the works freely available to Internet users everywhere if they care to look for the relevant stream. Accordingly, while the consent should be regarded as taking into account indexing by conventional search engines and linking by conventional websites—both inherent aspects of the function of the Internet—it should not be taken to extend to TuneIn's activity, which was a different kind of act of communication and was targeted to UK users. In the result, TuneIn's act of communication in relation to Category 3 was to a new public and thus infringed the communication to the public right. Birss J reached the same conclusion for Category 2 stations (not licensed anywhere in the world), observing that they could not be in any better position than Category 3. He went on to consider the alternative, obiter, possibility that GS Media principles should apply to Category 2 stations. Since TuneIn was a commercial service, he applied the GS Media presumption of knowledge of illegality and concluded on an examination of the facts that TuneIn was not able to rebut it. On the assumption that Category 2 radio station played relevant content, TuneIn infringed under the GS Media test. For Category 1 stations (licensed under UK copyright), Birss J considered the nature of TuneIn's act of communication and the fact that, unlike Category 3, the territorial element did not apply. He observed that although TuneIn's act of communication was different from conventional linking, it was at root a form of linking. He decided that that observation and the territorial difference was enough to mean that for Category 1 there was no new public, whereas for Category 3 there was. To hold otherwise would be an unwarranted restriction on freedom of expression and information available via the Internet in circumstances where the copyright owners had the ability to exercise their rights in relation to the original radio station. (4) Birss J described this as a test case, observing that the relationship between copyright and the Internet is not always an easy one. It is the first fully argued UK case to have considered the broader application of the CJEU case law on communication to the public and the Internet. It has exposed many areas of disagreement as to the effect of that case law, as well as exploring difficult cross-border issues. Both sides were granted permission to appeal (see [2019] EWHC 3374 (Ch)). D. Other rights France (1) Court of Appeal, Versailles, 26 November 2019—No 19/00999—Paul L. v Marius C. et Romain C. (2) In order to determine the scope of a settlement between the heirs of a famous French humourist and its producer, the court had to define ‘fixation’ under French neighbouring rights. The producer was in favour of an economic definition amounting the fixation to the production of a master. The heirs supported a material definition considering that the fixation is only the capture. The court was the second court of appeal seized after the decision of the first court was quashed by the Court of Cassation. (3) Following the position of the Court of Cassation, the Court of Appeal adopted a material definition of fixation. The fixation is made by the first capture of the interpretation, the master being, as such, an act of reproduction of this fixation. The court strongly based its reasoning on international norms. It quoted the Rome Convention and, more precisely, its Article 7–1b mentioning, ‘the fixation, without their consent, of their unfixed performance’. The court also mentioned the WIPO glossary, which defines fixation as ‘Capturing a work or object of related rights in some material form (including storage in an electronic (computer) memory) in a sufficiently stable form, in a way that on this basis the work or object of related rights may be perceived, reproduced or communicated to the public.’ International norms were clearly in favour of this material definition of the concept of fixation. (4) This clear definition of fixation adds coherence to neighbouring rights by clearly distinguishing fixation from reproduction. (1) Court of cassation, 11 December 2019, No 18–21211 (2) A French store broadcasted a musical programme acquired from a company presenting the programme as being ‘royalty free’. French collective management society The SPRE, acting for the perception of the equitable remuneration for communication to the public of phonograms, required payment for the broadcasting the musical programme. (3) The issue was whether the perception was due, despite the fact that performers used creative commons licences. For the court, the perception would be due if (and only if) the phonogram is published for commercial purposes. The court also refused to refer the matter to the CJEU for a preliminary ruling, based on the fact that under French collective management is mandatory for the perception of the equitable remuneration. For the court, French law does comply with EU law without any reasonable doubt. (4) The court avoided circumventing the payment of the equitable remuneration by pretending that the music broadcasted was royalty-free. Italy (1) Court of First Instance of Rome, 5 September 2019—Trenitalia v GoBright Media (2) The case concerned a ‘scraping’ (web harvesting or web data extraction) activity carried out by means of software. More precisely, the scraping activity concerned data relating to timetables, tracks, arrivals at stations, delays, maps and routes of trains contained in a database available on the website of a company active in the sector of public rail transport. The scraping activity was carried out in order to provide an application for the comparison of competing services. Extraction and re-utilization of data were not carried out automatically but rather from time to time, ie if requested by the user of application and within the limits of their request. (3) The database was made available to the public by a company providing national rail transport services. The court acknowledged that this is a public company providing public service. According to the reasoning of the court, this implies that the company is subject to Directive 2019/10244 on open data and the re-use of public sector information. It follows that reference to extraction or re-utilization of a substantial part of a database as relating to the sui generis database right under the Italian equivalent of Article 7 of Directive 96/95 has to be interpreted in line with the aim of the former directive, so to encourage the dissemination and use of information. In this perspective, the concept of a substantial part corresponds to that of the totality of a database. The damage to the maker of the database as deriving from the extraction and re-utilization of the contents has to be evaluated taking into account the above aspects and rationale of Directive 2019/1024. (4) This interim decision limits the scope of the sui generis database right in respect of databases made available to the public by entities active in the public sector, at least as defined by Directive 2019/1024. This conflict between the two pieces of EU legislation seems to entail an impact on the scope of sui generis database right, the introduction through case law of an exception and limitation to such right, and the unequal treatment between database makers. As such, an issue of this kind is suitably subjected to a preliminary referral to the CJEU. Spain See below at Section III.C. II. Exceptions and limitations A. Parody Belgium (1) Dutch-speaking Commercial Court of Brussel, Studio 100 v Greenpeace Belgium, A/18/03379, 4 April 2019 (2) The application of the parody exception must respect a fair balance between the freedom of expression of the user of a protected work relying on the parody exception and the protection of the author's reputation. (3) Greenpeace advocates, inter alia, for a reduction in meat consumption. It therefore criticizes Studio 100, a Belgian producer of popular children's televisions series, for commercializing meats displaying Maya the Bee. In such context, Greenpeace launched a video campaign featuring images of Maya the Bee smoking and advertising ‘Maya Light’ cigarettes. Studio 100 initiated injunction proceedings based, among other things, on copyright, to stop the campaign in question. In its defence, Greenpeace invoked the parody exception provided for in the law. Following CJEU case law (Deckmyn, C-201/13, EU:C:2014:2132), the court held that the Greenpeace commercial presented the essential characteristics of a parody. However, Greenpeace failed in the circumstances of the case to take into account the fair balance between its right of freedom of speech and the interests of Studio 100 to maintain its carefully constructed child-friendly image. Hence, the court dismissed Greenpeace's defence based on the exception of parody. It also found that the Greenpeace commercial constituted an infringement of the moral right in Maya the Bee. France (1) Cour de cassation, 22 May 2019, No 18–12.718 (2) This case was based on an unauthorized reproduction of a bust of Marianne, the symbol of the French Republic. The bust created by a French sculptor was used by a French newspaper in order to illustrate the sinking of France, with the bust shown partially under the water. The question was whether such a partial reproduction could be interpreted as a parody. For the sculptor, this would not be possible, on consideration that the name of the author was not indicated and because the bust as such was not a caricature. (3) Under the French IP code, parody is an exception to copyright law. As a consequence, the author ‘may not prohibit parody, pastiche and caricature, observing the rules of the genre’ (Article L 122.5 IP Code). Under EU law, parody is also an exception to copyright law. Article 5(3)(k) of Directive 2001/29 provides that Member States may provide for an exception or limitation concerning the use of a work for the purpose of caricature, parody or pastiche. In its 2014 decision in Deckmyn, C-201/13, EU:C:2014:2132, the CJEU characterized the concept of ‘parody’ as an autonomous concept of EU law. This means that the definition of parody would no longer relate to the French IP Code and its local interpretation. Referring to Deckmyn case, the French Court of Cassation refused to require any quotation of the parodied work and that the parody is noticeably different from the parodied work. In fact, the bust was not as such parodied or even altered. It was only partially used in a photomontage which was parodic. In line with the CJEU, the court first required that the parody constitutes an expression of humour. Having jurisdiction over questions of law and not of fact, the court sent the case back to the Court of Appeal considering that the image constituted a humoristic metaphor of the sinking of the French Republic. Furthermore, under French law, a parody needs to exclude any confusion with parodied work. Here again, the court sent the case back to the Court of Appeal to decide on this issue. Finally, the court considered that such an exception would not constitute a disproportionate harm to the author’s interest. (4) This decision seems to provide a broad interpretation of the notion of a parody, since any use of a pre-existing work in a ‘humoristic’ context might be characterized as a parody if there is no risk of confusion, even if the work used is not the object of the parody and not even changed. (1) Court of Appeal, 17 December 2019, Bauret v Koons (2) Appropriation art is a well-known artistic genre based on the use of pre-existing objects or images. From a legal standpoint, the question is whether such use could be characterized as an infringement if it takes place without the authorization of the author of the earlier image. Jeff Koons, a famous American artist, used pre-existing works in his creation without asking for the authorization of the author of the pre-existing work. In the ‘Banality’ series, the artist transformed the images of third-party pictures into sculpture with some slight changes. One US litigation was based on one work belonging to this series. The US judge considered that Koon’s use of Roger’s picture could not amount to a fair use. In France, a sculpture called ‘Naked’ from this same series was litigated. The sculpture was the 3D transposition of a picture of two naked children. The heir of the photographer sued Koons for infringement. The Court of Appeal confirmed the decision rendered at the first instance. The picture was considered original and the sculpture an infringement of the picture, since the originality of the picture was reproduced into the sculpture. The question was whether such an infringement might be authorized. Following the current exceptions embodied in French law, the defendant argued that the use could be considered a parody. The court quoted the CJEU decision in Deckmyn, C-201/13, EU:C:2014:2132. For the court, the fact that the picture was little known meant that the public was not able to identify and distinguish it from Koons’s sculpture. In addition, the sculpture clearly lacked any humoristic expression or intent. As a consequence, the use would not fall under the scope of application of the parody defence. Beyond legal exceptions embodied into the IP Code, the French case law introduced an external limit to copyright law based on the European Convention of Human Rights (ECHR), notably freedom of creation. Nevertheless, the court considered that the restriction to the freedom of creation was balanced and proportionate. (4) It is clear that such an external limit to copyright law based on the ECHR is not any longer possible after the CJEU decision in, inter alia, Pelham, C-476/17, EU:C:2019:624. From an EU standpoint, Koons’s argument was limited to parody. From a human rights point of view, it might still be possible to seize the European Court of Human Rights and argue that the harm to freedom of expression as caused by the interpretation and application of copyright norms under French law would not be proportionate. B. Quotation Poland (1) Supreme Court, Infor Biznes v Press-Service, judgment of 9 August 2019, case No II CSK 7/18 (2) Press clipping service operators may not invoke the right of quotation against copyright infringement claims, unless they prove that the press reviews they prepare employ creative effort and do not prejudice the interests of rightholders. (3)6 The dispute involved a company offering media monitoring and press clipping services, which was sued for copyright infringement by a publisher. The defendant’s editors reviewed newspapers or websites and prepared reports containing copies of full articles or their extracts on topics as ordered by customers, including articles to which the publisher holds copyright. The press clipping company distributed such reports to its customers. When the publisher sued the company for copyright infringement, the defendant invoked the right of quotation as the legal basis of the service. The Polish Act on Copyright and Related Rights lists the right of quotation as one of the forms of ‘permitted use of copyright works’. According to the relevant provision, ‘It is permitted to quote, in works constituting an independent whole, parts of works which have already been published, fine art works which have already been published, photographic works or minor works in full, to the extent justified by the purpose of the quote, such as explanation, polemic, critical or scientific analysis or teaching, or by the rules governing a specific type of creative activity.’ The press clipping company claimed that their editors prepare ‘press reviews’, an established form of journalism in which quoting is commonly practiced, and that the editors have shown intellectual effort in selecting the articles for each review. Thus, clippings would be justified on the basis of the rules governing press reviews, which should be considered a ‘specific type of creative activity’ under the Act. The Regional and Appellate Courts in Poznan sided with the defendant and dismissed the publisher’s claims, ruling that the press clipping is a form of ‘permitted use’. However, the Supreme Court overturned the Appellate Court’s judgment and referred the case back to it. That court found that reports containing press clippings should not be considered creative works themselves and, therefore, may not enjoy protection under the right of quotation. Quoting is a form of ‘permitted use’, but only in ‘works constituting an independent whole’. Creative effort must be present in the process of preparing a report, and it was not present in this case. The simple act of selecting and copying articles on a given topic is not enough. The Supreme Court found that, while press review articles are in fact a distinct form of journalism, they must employ a creative element in the review itself. Otherwise, they may not be protected by the right of quotation exception. In addition, the court declared that such exception may not apply in this case also because the defendant’s use of the articles conflicts with their normal exploitation and prejudices the legitimate interests of the rightholder, as it discourages the defendant’s customers from purchasing newspapers. Thus, the use of articles by the press clipping company fails the three-step test, which makes the defendant unable to invoke a copyright exception. (4) Royalty payments for news snippets are currently a hotly discussed topic throughout the EU. Directive 2019/7907 introduced a new right for press publishers, enforceable without prejudice to copyright claims, to authorize use of such snippets by online platforms, and to receive a share of revenues stemming from such use. While this case does not mention the new EU directive, the judgment seems in line with the broader trend of limiting unlicensed use of news publications by news aggregators and media monitoring services. In Poland, the judgment should also establish a clearer understanding of limitations of the right of quotation and should provide insight on practical application of the three-step test. C. Private copying The Netherlands (1) Supreme Court 7 December 2018, NL:HR:2018:2254, HP, Dell, Imation and FIAR v the State of the Netherlands and Thuiskopie (2) Decision regarding the fair compensation for rightholders for private use (Directive 2001/29) in which the Supreme Court decided that the amount of compensation should be determined according to the ‘licensing model’, instead of the ‘substitution model’ as pleaded by HP to no avail. (3) In this decision, the Supreme Court upheld the decision of the Court of Appeal regarding the calculation of the fair compensation for private use (Article 5(2)(b) of Directive 2001/29/EC). HP argued that the payment of fair compensation is only required if the private copy replaced the purchase of an original copy from the rightholder. Only in that case, the rightholder would suffer damages according to HP, so that the fair compensation should be determined based on the ‘substitution model’ instead of the ‘licensing model’ which the State had embraced in a report on ‘private use damages’. The licensing model assumes that each private copy represents a certain licence value that is lost by the rightholder. Adopting the licensing model, the Court of Appeal had relied on the rationale invoked by the CJEU in TV Catchup, C-607/11, EU:C:2013:147 >‘to establish a high level of protection for authors allowing them to obtain an appropriate reward for the use of their works’. According to the substitution model, by contrast, if a consumer makes a copy simply because it is possible but would not have purchased an original if he had not been able to make a copy, there is no damage. As this situation may occur quite often, it may deprive rightholders of substantial compensation payments which, according to the Court of Appeal, would be incompatible with the stated objective of the Directive and, thus, supports the State’s preference for the licensing model. The licensing model at issue, in this case, was the following: Number of saved, privately copied works in 1 year (= the number of private copies made annually) (factor I) × income resulting from streaming for the rightholder (after deduction of costs) in the case of ‘one time use’ of the work (factor II) × correction for ‘multiple time use’ (listening/viewing) of one saved, privately copied work (factor III: the listening factor) = damage to the rightholder. (4) As the Supreme Court agreed on the appropriateness of this licensing model, the decision clarifies the correct calculation of fair compensation. The decision can also be understood to solidify the objective of Directive 2001/29 to establish a high level of protection. Finally, it also played an important role that Member States, in line with CJEU jurisprudence, have a wide margin of discretion when determining the form, modalities and level of fair compensation. (1) District Court of The Hague 13 February 2019, NL:RBDHA:2019:1253, Stobi v State of the Netherlands (2) If the compensation for private copying was set too high by the State, then the State acted unlawfully and is liable for paying damages to manufacturers and importers of ‘blank data carriers’—damage being understood in the sense that the total proceeds of the private use compensation levied on relevant carriers actually exceeded the amount that would have been fair in the light of actual private copying activities conducted with those carriers. (3) Stobi (representing all parties selling blank data carriers) argued that excessive private use compensation had been paid, and that its members had suffered damages as a result of three parameters which impacted the determination of the amount of levies by the State, namely: that no distinction was made between permitted and unauthorized private copying; that the compensation was only levied on traditional blank carriers (CDs/DVDs); that the national implementation of pertinent EU legislation should have made it clear the term ‘importer’ also included parties who sold carriers subject to compensation from abroad by means of online selling to consumers based in the Netherlands. The court confirmed that, if the amount of paid levies was indeed too high, in the sense that the total proceeds of the private use compensation for CDs and DVDs actually exceeded the amount that would have been fair for private copying with those carriers, the State is liable for damages. (4) This decision seems to slightly attenuate the Supreme Court decision above. Even though the State does have a wide margin of discretion when determining form, modalities and level of fair compensation, it is nonetheless liable for damages if it can be established that levy payments exceeded what would have constituted fair compensation for the use of certain types of carriers. (1) District Court of The Hague 18 September 2019, ECLI:NL:RBDHA:2019:9876, HP v SONT (2) Offline streaming copies and private copies which are stored in the cloud are subject to the fair compensation to be paid for private use in accordance with Article 5(2)(b) of Directive 2001/29. (3) The court ruled that in the following cases, fair compensation is to be paid for private use pursuant to Article 5(2)(b) of Directive 2001/29: offline streaming copies (with as its source a legal streaming service): the fact that money would be paid twice (licence fees on top of private copying levies) does not change this; a potentially granted permission for making a copy does not have an impact, since making a private copy is not subject to permission; private copies that are saved in the cloud: this compensation can be collected via a levy on objects used to access the cloud storage space, now that these devices are part of a chain of devices used collectively to make the private copy. The court deemed it unnecessary to ask prejudicial questions because the answers could be deduced from the CJEU decisions in Copydan, C-463/12, EU:C:2015:144 and VG Wort, C-457/11 to C-460/11, EU:C:2013:426. (4) The court sought to adapt the private copying rules to technological changes and ensure that rightholders receive a fair compensation for cloud storage. Spain (1) Judgments of the Spanish Supreme Court No 1544/2019 and 1644/2019, 11 November 2019 and 3 December 2019. (2) Refusal of copyright levies not received due to an illicit transposition of EU Directive 2001/29 by the Spanish legislation. (3) Spanish collective management organizations EGEDA and VEGAP appealed a Cabinet Decision that had failed to acknowledge the pecuniary liability of the Spanish state for the inadequate amount received by such collective management societies as copyright levies in 2014 (case 1544/2019) and 2015 (case 1644/2019). The Spanish regulation on copyright levies of 2014 and 2015 was contrary to Directive 2001/29, as found by the CJEU in its judgment in EGEDA, C-470/14, EU:C:2016:418: ‘Article 5(2)(b) of Directive 2001/29/EC … must be interpreted as precluding a scheme for fair compensation for private copying which, like the one at issue in the main proceedings, is financed from the General State Budget in such a way that it is not possible to ensure that the cost of that compensation is borne by the users of private copies.’ The Spanish Supreme Court refused to acknowledge the liability of the Spanish state, although it clearly implied the receipt of a lower amount as copyright levies by the authors in Spain in 2014 and 2015. The same line of reasoning was followed in an analogous appeal filed by SGAE. D. Other exceptions Denmark (1) Danish Supreme Court, Coop Danmark A/S v K.H. Würtz by Kasper Heie Würtz, U.2019.1109 H, 18 December 2018 (2) Infringement of copyright by using and depicting parts of author's ceramic tableware in marketing and on food packaging. (3) The court found that the ceramic tableware was the result of an independent creative effort and, therefore, was protected as an applied art after the Danish Copyright Act. The court considered whether the use of the tableware in marketing and on food packaging was in accordance with a non-statutory principle regarding the right to a subordinate use of accessories/requisite in advertising, etc (de minimis principle). The court stated that the use of a work protected by copyright even in a commercial, marketing context may be of such a minor importance that—regardless of the copyright owner's consent to the use—there will be no copyright infringement. Such a non-statutory exception to copyright must, however, be interpreted strictly and must not adversely affect the normal use of the work and must not unreasonably interfere with the author's interests (cf also Article 5(5) of Directive 2001/29). The Supreme Court held that Coop's reproduction of Kasper Würtz's tableware in most of the reproductions covered by the case could not be considered to be of minor importance as the tableware features prominently and must be regarded as an essential element of the reproductions in the marketing material. It then ruled that Coop had substantially infringed Kasper Würtz's copyrights and that the conditions for ordering Coop to pay equitable remuneration to Kasper Würtz for their use were also satisfied. Coop was ordered to pay DKK 200 000 as compensation to Kasper Würtz. Additionally, the court found that Coop had used Kasper Würtz's copyright ceramic tableware to a considerable extent without permission in their marketing. Coop has thereby created a risk of diluting the Kasper Würtz brand. Against this background, the Supreme Court found that Coop had violated section 3(1) of the Danish Marketing Practices Act regarding fair trading practices. (4) This case is significant as it so far has been common in advertising to use copyright works without the consent or payment to the author, as long as the object is not well known or is eye-catching, but is used solely for a practical purpose. The decision states that such use does not constitute a copyright infringement—regardless of the copyright owner's consent to the use—if the use of a work protected by copyright even in a commercial, marketing context is of minor importance. Thus, the assessment will depend on the factual circumstances at issue. Some guidance is, however, by this decision, as it determines which images required the copyright owner's consent and which images did not. III. Enforcement issues A. Online enforcement Australia (1) Australasian Performing Right Association Ltd v Telstra Corporation Limited [2019] FCA 751, 3 April 2019, Federal Court of Australia, Perram J (APRA) Roadshow Films Pty Limited v Telstra Corporation Limited [2019] FCA 885, 12 June 2019, Federal Court of Australia, Nicholas J (Roadshow) Roadshow Films Pty Limited v Telstra Corporation Limited [2019] FCA 1328, 19 August 2019, Federal Court of Australia, Thawley J (Roadshow II) Foxtel Management Pty Limited v TPG Internet Pty Ltd [2019] FCA 1450, 27 August 2019, Federal Court of Australia, Nicholas J (Foxtel) (2) Each of these cases concerned an application by copyright owners for a site-blocking order under section 115A of the Copyright Act 1968 (Cth) (Act) against ISPs to compel ISPs to block access to certain websites that hosted or displayed links to infringing content. (3) These were the first cases to consider and apply section 115A after the amendments made by the Copyright Amendment (Online Infringement) Act 2018 came into force on 11 December 2018. The key amendments to the section were to: broaden the application of section 115A to websites that have the primary effect (not just primary purpose) of infringing or facilitating infringement of copyright (whether or not in Australia); facilitate injunctions against online search engine providers (section 115A(2)); allow applicants to seek adaptive injunctions (section 115A(2B)(a)(ii) which goes some way towards recognizing that blocked websites may simply change their IP address, URL or web address to circumvent a court order; and reduce the evidentiary burden on applicants through a presumption that the online location is outside Australia unless the contrary is established (section 115A (5A)). In both of the Roadshow cases and in the Foxtel case, blocking orders were made against websites that allowed users to access content by torrenting or streaming, or that provided links to other websites where content could be found. In Australian ‘site-blocking’ cases, the respondents (operators of the relevant websites or online locations) have not participated in the court proceedings. However, the Roadshow case was a rare situation that involved an active respondent. Dr Dimitriadis, the owner of the Greek-Movies.com website, put forward correspondence to the court but did not seek to appear. Dimitriadis argued that his website did not host content but was merely a search engine that provided links to third-party sites. He also referred to a number of judgments of Greek courts where he successfully defended criminal proceedings. However, Nicholas J held that the decisions Dimitriadis relied on, which were before the courts in Greece and applied the laws of Greece, did not bear on the question whether, in the language of section 115A(1), his website infringed copyright or facilitated an infringement of copyright. Accordingly, Nicholas J held that the primary purpose and effect of Dimitriadis’s website was to facilitate copyright infringement because the website made it easier for users to ascertain the existence or whereabouts of other online locations that themselves infringed or facilitated the infringement of copyright. Nicholas J also held that the copyright infringements were flagrant, as Dimitriadis did not deny that many of the films catalogued on his website were protected by copyright and visitors to his website who accessed the films from third-party sites and downloaded the films breached copyright. The APRA case is also notable because it involved a site-blocking order against seven websites which allowed users to ‘rip’ audio content from YouTube videos. This case was the first in Australia to consider ripping audio files under section 115A (as opposed to file-sharing or streaming), which is the practice of extracting a file for download from a streaming service. Perram J held that on their face, the online locations clearly had the primary purpose and effect of infringing copyright and did so flagrantly, especially where, in some instances, the websites contained notices that the ripping services were legal and legitimate. (4) These decisions demonstrate that the process to obtain a site-blocking order is becoming more efficient and the courts and Parliament are attempting to address the challenge presented by technological advances. In particular, courts are becoming more responsive to the types of online locations that can be the subject of site-blocking orders. However, the process under section 115A still seems to require significant resources to be expended and is costly. By way of example, Thawley J observed in Roadshow II that ‘there was a significant amount of evidence adduced on the application’ (at [30]). Australian courts are, however, attuned to the issues of efficiency, evidenced by Thawley J in the same case allowing the applicants in Roadshow II a shorter time frame in which to approach the court to have the orders extended at the end of the initial period of operation than courts have previously ordered in similar cases. The judge was satisfied that in the circumstances, it would operate to reduce the costs that might otherwise be incurred. Accordingly, while seeking ‘site-blocking’ orders in Australia is still costly, courts are increasingly adopting a more pragmatic and flexible approach when dealing with procedural matters. Germany (1) German Federal Constitutional Court (BVerfG), judgment dated 18 February 2019—1 BvR 2556/17—Verschweigen des Kindes (2) The owner of the exploitation rights to a musical album issued a warning letter to a married couple, via whose Internet connection a musical album was offered for download on an exchange platform. The couple then submitted a declaration to cease and desist but refused to pay damages and warning costs, since it was not them but rather one of their adult children, the name of which they did not want to disclose, who had allegedly used the Internet connection at the relevant time. As a result, they were ordered to pay the damages and legal costs. The couple then filed a constitutional complaint due to the infringement of their fundamental rights in Article 6(1) of the German Constitution (GG). (3) The BVerfG did not accept the constitutional complaint for a decision as the interference with the scope of protection of Article 6(1) GG (‘protection of the family’) was justified. This provision does not oppose the obligation in terms of civil procedure to communicate actual knowledge of the infringing action as the Internet subscriber in order to invalidate the presumption of one's own perpetration and to name the child who committed the infringement since the BVerfG attached significant importance to the rightholder's protected property. It is true that civil procedural law provides protection against self-incrimination and the party's procedural obligation to tell the truth is limited as soon as the party would be forced to disclose a criminal act committed by itself or a close relative. However, a party in the proceedings protected under fundamental rights against self-incrimination could be exposed to the risk of an unfavourable assessment of the facts when claiming said protection. The protection of the family does not serve to evade one's own liability for copyright infringements for tactical reasons and the mere circumstance of living with other family members does not automatically lead to an exclusion of liability in favour of the Internet subscriber. (4) On the one hand, the BVerfG clearly emphasized the protection against self-incrimination under civil procedural law and clarified that it is within the discretion of the respective parties to refer to it. On the other hand, this could result in the fact that one would have to bear any negative procedural consequences oneself. The protection of family can at least not exclude one's own liability for copyright infringement. Sweden (1) Patent and Market Court, Disney Enterprises, Inc et al v Telia Sverige AB, PMT 7262–18, 9 December 2019 (2) The Patent and Market Court ordered Sweden's largest ISP, Telia Sverige AB (Telia), to block access to illegal streaming sites and the Pirate Bay via certain specified domain names as well as other domain names which are not specified but which sole or predominant purpose is to enable or facilitate access to the illegal streaming sites in question. (3) Several rightholders (including Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Production LLLP and Warner Bros. Entertainment, Inc., as well as 10 Swedish rightholders) brought an action before the Patent and Market Court and requested that the court order Telia to block access to several illegal streaming sites, including Pirate Bay. Telia challenged the application. Under Directive 2001/29, a rightholder shall be able to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright. The provision is implemented in Sweden through section 5b of the Copyright Act. The question of whether ISPs can be ordered to block certain websites with illegally uploaded material had for a long period of time not been tried in Sweden. Even though the Patent and Market Court of Appeal found, in a judgment from 2017 which could not be appealed, that ISPs may in fact be ordered to block such websites the judgment has not been accepted completely by the ISPs which have questioned the correctness of the judgment on several grounds. However, the view of the Court of Appeal was confirmed in another recent case from the lower court (Patent and Market Court, Elsevier BV and Elsevier Ltd, PMT 13284–18, 6 December 2019). This view was once again confirmed in this case, as Telia was ordered to block certain specified domain names. However, an interesting aspect is the issue of a dynamic blocking order. The court stated that, in order for a blocking order to be efficient it has to be aimed not only at certain specified domain names, which may change, but also at the illegal services as such. The court admitted that Telia could not reasonably be required to have constant and total monitoring over the Internet to ensure compliance with the order. However, it could reasonably be required that Telia acts if the company becomes aware that the illegal services are available through certain domain names or websites and that Telia in such cases promptly must take adequate blocking measures. (4) The fact that an ISP may be considered as an intermediary and hence be ordered to stop infringing activities in line with Article 3 of Directive 2001/29 has once again been confirmed in Sweden. Further, in order to make the domain name blocking more efficient, the court opened up a possibility to issue injunctions that are not only aimed at specifically indicated domain names (dynamic injunctions). We have, however, not yet had the final word as Telia appealed the judgment to the Patent and Market Court of Appeal. UK (1) Nintendo Co Ltd v Sky UK Ltd and Others [2019] EWHC 2376 (Ch), 10 September 2019, Claim No: IL-2019-000078. (2) Nintendo was granted a site blocking injunction against ISPs in respect of four websites engaged in trade mark infringement and offering devices that allowed technical protection measures protecting copyright works to be circumvented. (3) Nintendo owns copyright in the operating software of its game console ‘Nintendo Switch’, in the software for many of its games and in other copyright works such as the soundtrack and graphics. The four websites in dispute were offering devices for sale which allowed Nintendo's technological protection measures (TPMs) to be circumvented, enabling users to play homebrew and pirated games. The websites were also using Nintendo's registered trade marks. The judge noted that, in considering proportionality of the TPMs, it was relevant that the primary use of the devices was to play pirated games. The presence of the TPMs did not inhibit the independent development of video games for the Switch since Nintendo provided an easy route to doing so via its Authorised Developer programme. The judge applied the UK Supreme Court decision in Cartier [2018] UKSC 28 to establish that the court had jurisdiction to grant website-blocking injunctions on the basis of infringement of the rights under sections 296ZD and 296 CDPA 1988, in addition to trade mark infringement. He applied the criteria laid down in Cartier to determine whether an injunction ought to be granted: the injunction must be necessary, effective, dissuasive, not unduly costly or complicated, avoid barriers to legitimate trade, a fair balance between the fundamental rights engaged, proportionate and safeguarded against abuse. He held that the criteria were satisfied and, consequently, granted the injunction. (4) The novel feature of this case was the extension of site-blocking injunctions to TPM circumvention devices. The rights granted in respect of TPMs are not IP rights within Directive 2004/48.8 The judge observed that it is clear from Cartier that the court's jurisdiction to grant site-blocking injunctions is not limited to infringement of IP rights. B. Damages Denmark (1) Maritime and Commercial High Court, Anne Black ApS v Ronald A/S and Salling Group A/S, BS-1498/2016-SHR, 4 June 2019 (2) Case regarding the threshold for originality and damages award. (3) The case concerned a hanging flowerpot, a vase and a jar in a lean and simple design, all created by Danish designer Anne Black and all made of clay and sold in various colours and sizes. The court stated that the products were the result of the author's own intellectual creation and, thus, were protected by the Danish Copyright Act. The court found that the disputed products from Ronald A/S essentially had the same design as the corresponding products from Anne Black ApS. The vase and the jar differed slightly in the dimensions, and the hanging pot differed by being suspended in two leather cords instead of Anne Black's three leather cords. However, the court stated that these are details that you only notice when you see the products side by side, which is not the case in a purchase situation, and these details are of no significance to the overall impression. The disputed products thus all appear as a slavish imitation of the corresponding products from Anne Black ApS. The court further found that the very fact that the infringing products were sold in a discount supermarket chain and marketed in a way that created associations with Anne Black's design universe has caused damages on the sales of the affected products and on Anne Black's brand that constituted a considerable market distortion. On this basis, the court found that Ronald A/S and Salling Group A/S should pay remuneration and damages of DKK 1.5 million. (4) This case is significant as it is one of the largest awards to a Danish design company for copyright infringement. Additionally, case law in Denmark has previously set out a rather high threshold of originality for applied art, industrial design and fashion wear as it is stated that applied art typically has a narrow scope of protection. This case demonstrates that even a simple design may be protected by copyright. Poland (1) Polish Constitutional Tribunal, Stowarzyszenie Filmowców Polskich (Polish Filmmakers Association) v a cable TV operator, case No P-14/19, 5 November 2019 (2) The Tribunal decided unanimously that the claim for repair of the damage caused by infringement by payment of double the amount of remuneration due, ie remuneration that would have been due in exchange for the rightholder's consent, based on Article 79(1)(3)(b) of the Polish Law on Copyright and Related Rights, is compliant with the Polish Constitution. (3) The question on compliance of Article 79(1)(3)(b) of the Law on Copyright and Related Rights with the Polish Constitution, specifically Articles 64(1), 64(2), 31(3) and 31(2) therein, was referred to the Constitutional Tribunal by the Polish Supreme Court. Doubts as to whether the provision is compliant with the Constitution emerged in the dispute between the Polish Filmmakers Association (Stowarzyszenie Filmowców Polskich—a collective management organization representing filmmakers, in short: SFP) and a Polish cable TV operator which broadcasted and reemitted audio-visual works without the consent of the rightholders (represented by SFP). The provision in Article 79 (1)(3)(b) has been subject to scrutiny twice: (i) as to its compliance with the Polish Constitution and (ii) as to its compliance with EU law, in particular Article 13 of the Directive 2004/48. In the first decision (judgment of 23 June 2015 in case No SK 32/14), the Constitutional Tribunal decided that the provision was unconstitutional to the extent that it allowed rightholders to request from the person who infringed their economic copyrights to repair the inflicted damages by payment of triple the amount of respective remuneration where the infringement is culpable (if not, double). In the opinion of the Tribunal, that part of the provision unreasonably interfered with the infringer's property rights and was contrary to the compensatory function (as opposed to punitive function) of the claim for damages in Polish civil law. The Tribunal then explained that since the triple amount payment was due only where infringement was culpable, the claim was of punitive nature and Polish civil law does not recognize punitive damages. In the second decision (Stowarzyszenie ‘Oławska Telewizja Kablowa’, C-367/15, EU:C:2017:36), the CJEU decided that the provision in question to the extent it allowed a rightholder to claim for payment of double the amount of the respective remuneration was compliant with Article 13 of Directive 2004/48. In the most recent decision, the Constitutional Tribunal decided unanimously that the provision in question, to the extent it allowed rightholders whose economic copyrights were infringed to request from the infringer to repair the damage by payment of double the amount of respective remuneration, is compliant with the Polish Constitution. According to the Tribunal, the provision effectively eliminates the differences in the status of the parties to a civil law relationship arising from a tort (violation of economic copyrights) through their unlawful use. In this case, the Tribunal adds, the rightholder is the weaker party. The weaker position of the rightholder, explains the Tribunal, results from the difficulty of both detecting the infringement and proving the specific amount of damage inflicted. For this reason, removing the burden of proof of the amount of damage and the statutory granting of the right to claim double the remuneration due is an effective regulation in the light of the constitutional standards analysed in the case. In addition, the Tribunal observes that the claim for twice the remuneration due, unlike the unconstitutional claim for triple the amount due, is not dependent on the fault of the infringer, which eliminates the features of civil punishment in the challenged solution. (4) The position of the Constitutional Tribunal presented in the judgment is of significant importance for the practice of copyright enforcement. The judgment dispels doubts which arose after the 2015 judgment. Polish courts, including the Supreme Court, presented two different positions as to the possibility of claiming compensation based on a lump sum. In its judgment of 7 December 2017 (No V CSK 145/17), the Supreme Court approved of such a possibility and explained that if rightholders were allowed to request a one-time amount of the remuneration due, that would place copyright infringers in a better legal position than those who legally use copyright works. However, in its judgment of 10 November 2017 (No V CSK 41/14), the Supreme Court disapproved of such a possibility and stated that obtaining higher compensation than a one-time fee under Article 79 (1)(3)(b) is possible after demonstrating the amount of damage and the fact that it remains in an adequate causal relationship with events that infringe copyright, as well as demonstrating the fault of the infringer. The judgment of the Tribunal eliminates any doubts in this respect and confirms that the alternative (and easier due to fewer formal requirements) claim to the claim for repair of the inflicted damages on general civil law terms is available to rightholders. Spain (1) Judgment of the Madrid Appeal Court 180/2019 5 April 2019 (2) Criteria for the compensation of damages. (3) Layons and Karma commercialized in Spain the audio-visual animation series ‘CANDY CANDY’ in DVD format. Toe filed as claim against them as producer and owner of the IP rights on the serial. The judgment analyses the ownership of the exploitation acts to reproduce and distribute the serial in Spain. First at all, it established that Spanish law applied as lex loci protectionis. In application of the Spanish Intellectual Property Act, it concluded that, as a producer, Toe had the exploitation rights in Spain. In particular, in the absence of evidence to the contrary, according to Article 88 of the Spanish Intellectual Property Act, the following rights are presumed to be exclusively assigned to the producer: rights of reproduction, distribution and public communication, as well as those of dubbing or subtitling of the work that correspond originally to the authors. Against the arguments of the defendants, the court confirmed that the ownership of these rights vested with Toe, although they were not exploited during several years. Lack of exploitation of IP rights does not imply their expiration. The defendants filed several licence agreements to ground their right, but these licences could not support their right to reproduce and distribute the serial in Spain. Finally, the judgment analysed the concepts to be included in the compensation of damages based on the notional royalty. The court refused the royalty proposed by the claimant and used as royalty the royalty that Karma had to pay to Layons, as established in an agreement signed between these parties. In addition, the court admitted that the compensation based on the notional royalty might include the research disbursements linked to the investigation and acquisition of evidences of the infringement but only the ones supported by the corresponding receipts, including but not limited to the legal costs of lawyer and attorney at court incurred in pre-trial inquiries to prepare the case and the disbursements and the postage costs of a cease and desist letter sent to the defendants via certified letter. Sweden (1) Supreme Court, M.D. and A.I. v Aktiebolaget Svensk Filmindustri (SF), NJA 2019, section 3, 21 January 2019 (2) The Supreme Court rejected the criterion of a fictional licence fee as the basis for calculating the reasonable compensation payable to a rightholder due to an infringement of copyright, finding that it lacked sufficient foundation in actual conditions. Instead, it presented a different method for calculating such compensation. (3) M.D. and A.I. had been found liable by the lower courts for infringing on SF's copyright, by illegally distributing films to the public through streaming on the website dreamfilm.se. SF requested SEK 8 million as reasonable compensation, ie in excess of damages, for the infringement related to one of the films distributed on the website. The request was based on a fictional licence fee, ie an estimate of what a potential licensee would have paid for the right to distribute each film on such website. The question before the Supreme Court was how the reasonable compensation should be calculated. Reasonable compensation according to the Swedish Copyright Act is a reimbursement for unlawful distribution. Such compensations shall be paid even if the infringement was made in good faith and shall amount to the remuneration that the rightholder would have received if the distribution had been made lawfully. According to the preparatory works to the Copyright Act, the compensation can be decided based on prevailing tariffs in a certain area of business. If a licence market or other established fee principles exist in an area of business, this shall be used as basis for the calculation of the reasonable compensation. The Supreme Court stated that, if no established fee principle exists, the calculation might be based on a fictional licence between the rightholder and someone who wishes to use the work in the relevant way. The calculation is then based on the assumption that an agreement regarding the licence fee would have been reached between the parties. As a last resort, if it is not possible to use a fictional licence fee, compensation shall be calculated based on the facts that have been presented by the parties. In this case, the court found that the fictional licence-based damage request against SF was not based on reasonable assumptions about a potential agreement between the parties and was not founded on correct facts. The fictional licence could therefore not be used as the basis for calculating the compensation. Instead, the calculation made by the Supreme Court was based on the facts presented by the parties. The Supreme Court took into account a number of factors, including: the period of time of the infringement, how and when the film had been legally distributed, and information on existing licences. The Supreme Court found that a reasonable compensation would SEK 400 000 (1/20 of the amount requested by SF). (4) The Supreme Court presented a method for how reasonable compensation according to the Copyright Act shall be calculated in relation to this type of copyright infringement. This is an important case since the calculation basis for such reimbursement was previously unclear. C. Procedural aspects Spain (1) Judgment of the Appeal Court of Barcelona (Section 15, specialized on IP issues), No 1347/2019 issued on 9 July 2019 (2) Infringement of the rights of reproduction, distribution and commercialization of watercolour laminates. Time limitations for the claim for damages but admissibility of the claim of infringement. (3) Hostench printed for the author a catalogue of watercolour laminates during 1996 and 1998. In 1998, the market was full of copies of such watercolour laminates. In 2008, two catalogues, the production of which was linked to Hostench and a publisher called Japizua, included some printouts from the catalogue of the author/claimant. According to the claimant, the other defendant publisher (Rauter) participated in the distribution of the infringing catalogues. The claim joined actions of copyright infringement and unfair competition infringement. As the claim was filed long after the facts, the judgment declared the damage as claims damages due to copyright infringement and unfair competition inadmissible on application of the statute of limitations. Despite this, the judgment analyses the copyright claim and concludes that there was an infringement of the copyrights of the author by Hostench and Japizua, but not by Rauter because there was no evidence regarding the possession by Rauter of the material required for the printing. As a consequence, Hostench and Japizua were requested to (i) cease from the infringing activity, (ii) withdraw the infringing catalogues from the market and (iii) destroy the print layouts as well as all the material required to manufacture the unlawful reproductions. (4) This judgment shows the importance of enforcing one’s own rights even where damages can no longer be claimed, as well as the importance of reviewing all the registrations of a work because any of them can be the key to prove the origin of the infringement (in this case, it was the entity that appeared in the legal deposit of the infringing catalogue). IV. Other issues A. Subsistence of copyright Belgium (1) Brussels Court of Appeal, Glenn Sestig Architects BVBA v Roell Diamonds & Jewels BVBA, 2016/AR/1870, 9 September 2019 (2) For there to be a ‘work’, the shop window and therein placed column of a store interior must be expressed in a manner which makes them identifiable with sufficient precision and objectivity. (3) Glenn Sestig considered that the shop window of Roell's store was particularly similar to the store interior project it designed for a jewellery store and for which it claims copyright protection. Glenn's shop window, with the column placed in front of it, would have been made available to the public through publication on its website. However, the court found that the characteristics attributed by Glenn to the column and to the shop window (ie the lines, the perimeter, the shape) would not be visible in the photograph published on Glenn's website. As a result, neither the table surface nor the column that is a characteristic part of it could be identified with sufficient precision and objectivity to be regarded as a work in the eyes of copyright law (Levola Hengelo, C-310/17, EU:C:2018:899). In the absence of any evidence of originality of the column and/or the table surface as visible on the published photograph, no copyright could subsist. The Netherlands (1) Court of Appeal of Amsterdam, 29 January 2019, NL:GHAMS:2019:216, Montis v Klaver (2) This decision demonstrates the particular relevance of national originality standards and reciprocity rules that have been applied in the past in the field of works of applied art. It also reflects the impact of the international protection standards as set in Articles 2(7) and 7(4) of the Berne Convention. (3) Montis manufactures and sells furniture, including chairs. The court ruled that one of these chairs, Charly, was no longer protected by copyright. After the expiry of industrial design rights in 2003, Montis had failed to file a maintenance declaration, as necessary under Dutch industrial design legislation that was in force at that time. Therefore, only the minimum term of protection following from Article 7(4) of the Berne Convention (25 years) remained available in order to ensure compliance with the international minimum standard of protection. On appeal, Montis pointed out that the Charly chair had enjoyed copyright protection in France under national law on 1 July 1995. According to Montis, this was sufficient to revive copyright protection in the Netherlands by virtue of Article 51(1) of the Dutch Copyright Act (implementing Article 10(2) of Directive 2006/116,9 which requires the application of the harmonized terms of protection to all works which were protected in at least one Member State on 1 July 1995 pursuant to national copyright provisions). Claiming protection in France on 1 July 1995, Montis thus sought to secure the longer term of copyright protection following from Article 37(1) of the Dutch Copyright Act, namely the regular EU term of 70 years post mortem auctoris. However, in a previous case involving the same chair, the Court of Appeal of Arnhem had already established that the Charly chair had been exhibited and offered for sale for the first time at a trade fair in Cologne. Following this case precedent, the Court of Appeal of Amsterdam considered Germany the country of origin. Klaver provided an expert statement showing that, at the relevant time, German courts applied a particularly strict originality test vis-à-vis works of applied art. It was thus implausible that the chair enjoyed copyright protection in Germany on 1 July 1995. Against this background, the crucial question was whether the German position on 1 July 1995 had repercussions on the protection status in France. This was not excluded because in France, copyright protection for foreign works of applied art was exclusively granted based on reciprocity in line with Article 2(7) of the Berne Convention. French case law indicated that the application of this reciprocity rule in France resulted in the denial of copyright protection for German works of applied art because of the fact that French works of applied art—due to the particularly high originality threshold in Germany—were not eligible for copyright protection in Germany. According to Montis, this case law should be set aside because it contravened EU protection standards, more specifically the CJEU judgment in Phil Collins, C-92/92 and C-326/92, EU:C:1993:847. That judgment, however, did not concern the specific situation in the field of works of applied art. The CJEU only ruled in its 2005 decision in Tod’s, C-28/04, EU:C:2005:418 that, for works of applied art, the application of Article 2(7) of the Berne Convention could lead to discrimination prohibited by EU law, if the discrimination was not justified by objective circumstances. Finally, the Court of Appeals followed the CJEU decision in Montis, C-169/15, EU:C:2016:790, and held that the only decisive factor was whether the chair had enjoyed copyright protection in France on 1 July 1995. In light of the reciprocity rule applied in France at that time, Montis could not prove this status of protection. (4) In the field of works of applied art, the interplay of Articles 2(7) and 7(4) of the Berne Convention with national originality and reciprocity rules can lead to a complex amalgam of impact factors that make the calculation of the term of protection particularly difficult—despite the harmonization of the period of protection in Directive 2006/116. Cases in this area can require a very careful assessment of applicable former law and practice. The CJEU Montis decision may serve as a compass. Poland (1) Appellate Court in Kraków, A.S. v. A.B., judgment of 23 October 2018 (published in October 2019), case No I ACa 125/18 (2) Packshots (generic photographs portraying products used in advertising) are not subject to copyright protection due to lack of originality. (3) A photographer made a series of packshots for a clothes manufacturer. The parties entered into an agreement, but this did not cover the assignment of copyrights to such photographs to the manufacturer. The photographer found 11 of his photographs published by an online store without his consent. The owner of the store claimed that he had received the photos from the manufacturer. The photographer sued the owner of the store for copyright infringement and requested that damages be awarded. The Regional and Appellate Courts in Kraków dismissed the claim. The Appellate Court found that the photographs in question were made to merely reproduce the objective, natural appearance of each item of clothing. All photographs were made against a neutral background, with the same lighting conditions. In most cases, the camera did not move between shots (a tripod was used). The clothing items were placed on a flat surface in all photographs. The same camera and lens were used for all photographs, and almost all technical settings (focal length, exposure) were the same. During the period when the 11 photographs were taken (7 months), the photographer only changed the lens aperture to accommodate some differences in external lighting conditions. On this basis, the court found that during the shoot, the photographer was merely responsible for pressing the shutter button, and that his job was simply to reproduce the actual appearance of the products. Thus, the photographer did not manifest any creativity. The resulting photographs were not considered their author’s ‘individual manifestation of creative activity’, so they did not qualify as ‘works’ within the meaning of Polish copyright legislation. Consequently, making these photographs available without the photographer’s permission did not amount to copyright infringement. (4) The issue of the threshold of originality required for copyright protection, or whether an item qualifies as author’s expression of creative effort, remains controversial for courts in Poland, but also across the EU (see, eg Infopaq, C-5/08, EU:C:2009:465). Polish courts have so far taken a rather lenient approach, typically allowing for copyright protection for the so-called kleine Münze (‘small coin’) works. As a result, the courts have granted copyright protection for items such as train timetables, calendars or tombstone designs. The judgment in question seems to be a departure from this approach. It is particularly important as packshot photography is currently ubiquitous and plays an important role in product advertising. UK (1) Islestarr Holdings Ltd v Aldi Stores Ltd [2019] EWHC 1473 (Ch), 17 June 2019, Claim No IL-2018–000218 (2) The High Court granted summary judgment for infringement of copyright in the design drawings for the claimant's make up palette lid and powder. (3) Islestarr Holdings (IH) established that artistic copyright existed in drawings for two of its designs featured in the ‘Starlight Palette’ sold under its make up brand, Charlotte Tilbury. The two designs in question were for the decoration of the palette's lid and the impressed pattern on the make up powder. It was held that Aldi's palette infringed IH's copyright in its drawings for the lid decoration and powder pattern. Aldi argued that the powder design was ephemeral in nature and could not be protected by copyright. The Deputy Master rejected that on the basis that the relevant artistic work was the underlying drawing. It made no difference that the drawing was for a design to be impressed in powder. Otherwise, artistic works by persons who made sculptures out of sand at low water on a tidal beach, which were then washed away, could have no claim to copyright in a pre-construction sketch. The fact that the design in the powder disappears by being rubbed away by the user did not affect or remove the copyright protection to which the underlying artistic work was entitled. (4) The case illustrates the potential significance of underlying drawings in a copyright infringement case involving three dimensional products. The case can be contrasted with the early 1980s Adam Ant case (MCA v Harpbond [1983] FSR 32), upon which the defendants relied, in which copyright was asserted in a design of facial make up. The claimants in that case failed for two reasons. The initial drawing relied upon contained insufficient original features to qualify for copyright protection. Conversely, the full design existed only on the claimant's face, which the Court of Appeal held could not constitute a painting and so was not an artistic work. B. Overlapping IP rights Australia (1) Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited [2019] FCA 355, 15 March 2019, Federal Court of Australia, Greenwood J (2) Hells Angels Motorcycle Corporation (Australia) Pty Limited (HAMC) commenced proceedings against Redbubble Limited (Redbubble) for copyright infringement (among other things). While HAMC's claims were successful on other grounds, its copyright infringement claim failed on two grounds: (i) HAMC was unable to establish that it was the owner or exclusive licensee of the artistic work in question, namely an iconic ‘death head’ design on a Hells Angels Membership Card (Artistic Work) and (ii) the Artistic Work was not a separate original copyright work. (3) A key issue in the case was whether HAMC had the standing to bring the proceeding. HAMC alleged that the Artistic Work was owned by HAMC's US parent company and that it was the exclusive licensee of the Artistic Work in Australia. However, the evidence revealed that the artwork on the membership card was originally commissioned in 1954 (and, as explained further below, the original artwork was not the Artistic Work in question). The artist who had been commissioned to create the original artwork was a tattoo artist known by the pseudonym ‘Sundown’. The court could not, however, trace the chain of title of the original artwork from Sundown to the US chapter of the Hells Angels. This decision clarifies that an oral assignment of copyright, which HAMC alleged had been made by Sundown to members of the US chapter of the Hells Angels, is invalid under the Australian Copyright Act. An assignment of copyright must be in writing and signed by or on behalf of the assignor. Further, the Artistic Work on the current Hells Angels membership card was a death head design created in 1983 by Mr Fukushima, who had purported to assign copyright in the design to the US Hells Angels in 2017. The court held that copyright did not subsist in the Artistic Work because Mr Fukushima's death-head design was derived from the earlier image on the Hells Angels membership card created by Sundown. In the court's view, Mr Fukushima had exerted no skill, effort or work to produce the Artistic Work. Under Australian law, there is no threshold or requirement of originality for works or subject matter other than works to be protected by copyright. For derivative works, however, the degree to which the derivative work embodies an original work is important and if it does embody an original work, it must be sufficiently different to constitute a separate original work in which copyright subsists. As this case demonstrates, the answer will depend on the facts of each case. Despite being unsuccessful in respect of copyright infringement, HMAC was successful in establishing that Redbubble had infringed its registered trade mark which contained the Artistic Work. Despite being an online marketplace where artists could upload their artistic works upon giving warranties in relation to third-party infringements, and a print-on-demand service for consumers, this is the second time an Australian court has found Redbubble liable for infringement of IP rights. (4) Under Australian law, depending on their business models, print-on-demand marketplaces may not escape liability for infringement of IP rights by claiming that they merely act as agents or conduits for transactions by connecting artists with printers or manufacturers and, ultimately, purchasers. This case reinforces the view taken by Australian courts that these platforms cannot easily avoid responsibility for content displayed on their websites. Such platforms may be liable for primary infringement regardless of where the artist who uploaded that content is located. The factors that a court will consider include the functionality of the platform and the degree of control the platform owner has over content uploaded by users. In Australia, it is critical for online marketplaces to engage in proactive moderation to remove infringing content. Despite Redbubble adducing substantial evidence about its moderation processes, the court still found that Redbubble's efforts in this regard were unsatisfactory. Belgium (1) Brussels Court of Appeal, PI Pharma NV v Merck, Sharp & Dohme Corp and MSD Belgium BVBA, 2017/AR/970, 14 May 2019 (2) One cannot circumvent the established exhaustion of one's trade mark rights by invoking a copyright. In the case at hand, accepting copyright protection would give rise to an artificial foreclosure of markets and prevent the free movement of goods. (3) In a judgment of 22 April 2017, the President of the Dutch-speaking Commercial Court of Brussels ruled on the repackaging and parallel import of pharmaceuticals by PI Pharma. It held that the first, third and fourth BMS criteria developed in Bristol-Myers-Squibb, C-427/93, EU:C:1996:282 were not met. The court, therefore, ruled that PI Pharma had infringed MSD's trade marks and issued an injunction against PI Pharma to stop selling the pharmaceuticals on the Belgian market. On appeal, it was found that the packaging only failed to comply with the third BMS condition. This defect was remedied by PI Pharma in the course of the appeal proceedings. Unsuccessful on the basis of its trade mark rights, MSD invoked its alleged copyright on the packaging. Relying on the established CJEU case law (Evora, C-337/95, EU:C:1997:517), the Court of Appeal held that accepting the copyright protection in the present case would give rise to an artificial foreclosure of the markets and would constitute an infringement of Article 34 of the Treaty on the Functioning of the European Union (TFEU). If, as a parallel importer, PI Pharma, in the context of striking a balance between the free movement of goods and trademark law, rightly makes a copy of a copyright-protected packaging, in order to safeguard the free movement of products, the copyright protection and in particular the reproduction right in question must be limited. Czech Republic (1) Supreme Administrative Court, KOLKOVNA GROUP a.s. v Industrial Property Office, 9As 458/2017–78, 20 June 2019 (2) If a trade mark contains a copyright work (a type of font in this case), the author (or entitled person) must grant the applicant an explicit consent with the use of his/her work in the trade mark; a general contractual licence to use the work is not sufficient for this purpose. (3) KOLKOVNA GROUP a.s. challenged several decisions regarding the registration of the trade mark ‘Pilsner Urquell ORIGINAL RESTAURANT’ because of the type of font called Kolkovna used in the registered trade mark. The author's rights to the font Kolkovna as the copyright work belonged to the claimant based on the exclusive licence agreement granted by the author. Where a trade mark contains a copyright work of another person, it is the trade mark owner who has the exclusive right to use such trade mark in connection with the goods or services for which it is registered, and that right is absolute in nature. For this reason, it is essential that the applicant for such a trade mark has the consent of the author (or entitled person) to use his/her work in the trade mark; otherwise, there is a risk that the trade mark will not be registered or, alternatively, will be declared invalid. At the time of the trade mark registration, a close collaboration existed between the claimant and the owner of the relevant trade mark. The parties cooperated on the creation of a chain of restaurants of the type ‘PUOR’ (Pilsner Urquell ORIGINAL RESTAURANT). At these restaurants, the font Kolkovna was used within the name and such use of the copyright material was made with the knowledge of the claimant and there was no suggesting evidence that at the time of filing the trade mark application, the claimant had considered such trademark to infringe or in any other way violate its copyrights. Accordingly, the Industrial Property Office (IPO) concluded that the claimant had granted an implied consent to use the copyright font Kolkovna in the registering trade mark. IPO further noted that the later dispute between the parties could not be relevant for the validity of the trade mark and provided that the claimant felt that its copyrights were infringed and a civil proceeding for copyright infringement should have taken place instead. It was rightly established that the preliminary questions of the proceedings were whether: (i) the font Kolkovna creates a copyright work under Copyright Act; (ii) the claimant was disposing with the author's rights to this copyright work; and (iii) the use of the trade mark might infringe such copyright work. As regards to the first two questions, both of the answers were affirmative and neither of the parties to the proceedings disputed that. Therefore, the ultimate question was whether the copyright, ie font Kolkovna, had been infringed by use of the trade mark in question. In particular, whether the claimant has granted the necessary sublicence, respectively, consent, to use the font with the trade mark. The Supreme Administrative Court held that both IPO and the first instance court had proceeded on the wrong basis and that, in this particular case, it was sufficient to prove that consent had been granted to use the font in the name of the restaurants and not specifically in the trade mark. Although the name of the restaurant corresponds to the registered trade mark, the legal consequences of both are quite different. In the latter case, the proprietor of the trade mark enjoys exclusive rights over the relevant trademark and therefore his/her position is strengthened by legal protection conferred from the registered trade mark. The Supreme Administrative Court concluded that there was no submitted evidence implying the claimant's consent with the use of the font in the trade mark and, therefore, held that the claimant's request to declare the trade mark invalid should be reviewed again the light of this decision. (4) It is clear that the consent to use copyright work in whatever form (implied, written or in the form of licence) is not sufficient for the purpose of using such copyright work in trade mark. An applicant for a trade mark containing a copyright work in a certain form should always ensure that he/she obtained the express prior consent of the author (or entitled person) of such copyright for the purpose of the trade mark application so to avoid any potential issues with the trademark registration or subsequent proceedings for trade mark invalidity. UK (1) ATB Sales Ltd v Rich Energy Ltd and Others [2019] EWHC 1207 (IPEC), 14 May 2019, Claim No: IP-2017–000235 (2) A finding of copyright infringement resulted in invalidation of the defendant's trade mark on the ground that its use was liable to be prevented by UK copyright law. (3) ATB traded under ‘Whyte Bikes’ and used a logo of a stag's head (C's device) in the course of its business. Rich Energy, a supplier of energy drinks, registered a similar logo of a stag's head (D's device) as a trade mark. ATB claimed copyright infringement and applied for the mark to be invalidated on the ground that its use was liable to be prevented by virtue of the law of copyright (section 5(4) Trade Marks Act 1994, Article 5(4)(b)(iii) Trade Marks Directive 2015/243610). Rich Energy were found to have infringed the copyright in C's device as an artistic work under section 17 of the UK Copyright, Designs and Patents Act 1988. Although there was no direct evidence of copying, the similarities between the devices were abundant, there was a high likelihood of access to C's device through the Internet and the evidence given in support of D's assertion of independent design was disbelieved. ATB were entitled to an injunction and damages or an account of profits. ATB were also entitled to a declaration of invalidity of D's device mark. (4) This case is a reminder of the potential significance of copyright infringement as a ground for invalidating a UK registered trade mark. C. Contractual issues Germany (1) BGH, judgment dated 20 December 2018—I ZR 104/17—Museumsfotos (2) A visitor of a museum took photographs of works in the public domain exhibited in said museum in violation of the effectively agreed ban on photography contained in the museum's terms of use and of photographs of works used in the museum’s catalogue, made these photographs publicly accessible, and was subsequently sued by the museum for injunctive relief and damages. (3) The BGH considered the complaint admissible. Although it was true that the works in question exhibited in the museum are in the public domain, contrary to the opinion of defendant, the museum had not tried to undermine the validity of the expiration of the works' term of protection. The general ban on photography was validly incorporated in the museum’s terms and conditions. Furthermore, the photographs taken from the museum catalogue were not merely technical reproductions. Instead, these photographs are subject to the protection of photographs pursuant to section 72 UrhG. A teleological reduction of the provision in order to exclude photographers of works in the public domain is not admissible in light of the purpose of the law. (4) For a long time, it has been unclear whether public museums can effectively prohibit the photographing of objects by means of a contract. The BGH now affirmed this question. The BGH did unfortunately not answer the question of whether the photographing also constitutes an infringement of property rights. Until a decision is rendered in this respect, museums should, therefore, ensure that their conditions of use include effective bans on photography if they wish to prohibit such photography. Denmark (1) Copenhagen City Court, Jascha Richter, Mikkel Lentz, Søren Stig Madsen and Kåre Wanscher v EMI MUSIC PUBLISHING GROUP DENMARK A/S, BS-15440/2018-KBH, 6 November 2019 (2) Dispute regarding the transfer of the grand rights in a music publishing agreement. (3) The dispute concerned the transfer of the grand rights in a music publishing agreement concluded with the members of the band Michael Learns To Rock. The band wished to use the grand rights to set up a musical and disputed that a full transfer of rights had taken place and accordingly found that the grand rights were excluded from the music publishing agreements. The court found that, at the time of the conclusion of the contracts, musicals were performed by other Danish and foreign composers who also performed or had performed at concerts and released records. Notwithstanding that the performance of musicals was not a form of use that the parties actually thought of when concluding the agreements, the grand rights were considered to be covered by the agreements. (4) This case dealt with the interpretation of music publishing agreements in relation to which rights that are covered and to which extent a form of use not previously exploited can be considered as included in the wording of the agreement. The claimants disputed that a full transfer of rights had taken place even though the agreements mentioned that the transferred rights entailed the full and unrestricted right to any commercial exploitation of the compositions in question, including the exclusive right to all public performance. The claimants appealed the court's ruling. Hungary (1) Decision No Pfv.V.20.505/2018 of the Curia published in the Review of Court Decisions under BH2019.231 (2) The Curia confirmed that, where the subject of an agreement is the development of software, the resulting work enjoys copyright protection. Consequently, the agreement concluded between the client and the service provider for the development is to be qualified not as a service agreement, but rather as a licence agreement. (3) This case concerned an agreement for the development of software for legitimate surveillance purposes (wire-tapping). Prior to its conclusion, the client and the service provider had several discussions and consultations on the realization of the system, where the client requested an official written pitch from the service provider to which the service provider submitted its tender documentation. Based on this as service agreement is deemed to be concluded between the parties for the service provider’s services (software development) to the client. The claimant developed the software in accordance with the pitch specifications of the client. Hence, the claimant claimed the contractual fees for the services from the client. The client refused to pay the contractual fee claiming that, not only did the agreement extend to the development of the wire-tapping system, but also to maintenance and continuous support of the system. The client withdrew from the agreement with a written declaration. The claimant requested the courts to order the defendant to pay the contractual fee plus interest based on the service agreement, whereas the defendant requested the rejection of such claim stating that: (i) there had been no final agreement between the parties; (ii) the claimant had not performed in accordance with the contract; and also the defendant had argued that it had withdrawn from the agreement prior to fulfilment. The case was tried at three levels. The first instance court rejected the action and stated that a service agreement had been concluded between the parties where the parties agreed on the relevant aspects of the contract, including the subject development, the services fee and the applicable delivery deadline. The court, however, did not see sufficient evidence to prove that the claimant fulfilled its contractual obligations, which led to the rejection of the claim. The second instance court came to a different conclusion and declared that a service agreement was validly concluded and based on that the claimant fulfilled its obligations; hence, it was entitled to claimed amount of service fee. The defendant unlawfully exercised its rights of withdrawal. With respect to the above background on review of the final second instance decision, the Curia came to the following conclusions: The second instance decision was contrary to the applicable legal provisions as the agreement between the parties cannot be considered as a service agreement. This qualification of the contract has decisive relevance on the circumstances of conclusion, validity and fulfilment. Based on the facts of the case, the parties were on understanding that the development and handover of the software formed a definite part of the contract. The Curia declared that, pursuant to Article 1(1) of Directive 2009/24,11 computer programs are protected by copyright, as literary works within the meaning of the Berne Convention for the Protection of Literary and Artistic Works. The Copyright Act transposed these provisions and confirms that software (computer programs) enjoy copyright protection irrespective of its form which also extends to the preparatory design material. This would lead to the necessary application of the provisions of the Copyright Act and also mean that the lower courts erred when qualifying the agreement as service agreement and not as licence agreement. Here it was necessary to assess the parties intention, the subject(s) of the agreement (software only or also services?) and whether the service provider fulfilled its obligations, by developing and handing over the software to the client with the intention of installing and consequent use thereof and whether the client had accepted that in the same sense. In this respect, the scope of the licence was deemed as the relevant aspects of the contract to which the parties intention should be assessed (scope, licence and corresponding licence fee in exchange). If this all point to the conclusion that this is a licence agreement—especially with regards to the claimed fulfilment—the formal legal precondition must be observed, that is to be in written form in order to be valid. If the parties did not conclude the agreement in writing, that is invalid, but this may be remedied by the parties or by the court. If, however, the parties lack common understanding than the legal consequence of invalidity must be applied. The Curia referred the case back to the first instance for reconsideration and reassessment of the case, as for now no further final decision had been published. (4) In case the subject matter of a service agreement is development of a software, that is a copyright work and thus the provisions of the Copyright Act as lex specialis must necessarily be applied and observed, including formal requirements, scope, fees and fulfilment of obligations and withdrawal provisions. (1) Decision No 8.Pf.20.386/2018/5 of the Metropolitan Appeal Court published in the Review of Court Decisions under BDT2019.3989 (2) One of the authors’ heirs (grandchild) alone is entitled to initiate a suit for enforcing the economic rights of the authors based on the general civil law provisions of joint ownership. The handover of a manuscript does not create a valid licence to the publication of the work, as a licence cannot be granted by implicit consent, but only in writing. (3) This case concerned whether: (i) one of the authors’ successors in title alone would be entitled to initiate a suit for enforcing the economic rights of the writers; (ii) a licence to publication (reproduction and distribution) of a work could be granted by an implicit act of handing over the manuscript to the publisher. Fifty-six pieces of literary work had been published in a Hungarian quarterly periodical without the explicit consent and written agreement of the author. The authors’ grandchild initiated a suit against the publisher, claiming that by this act the publisher had infringed the authors’ economic rights in the copyright and requested the amount of HUF 10 000 (approx EUR 30) per literary work, notably per poem to be reimbursed as unjust enrichment of the publisher. In respect to the authors’ heirs, one grandchild and the authors’ son were alive and entitled to enforce the authors’ copyrights. The author’s son had waived his rights for the benefit of the grandchild. However, such waiver was not in place in respect of the other author. The sole claimant in suit was the grandchild of the authors’ son. The publisher as defendant argued that (i) the grandchild alone had no standing to sue as she was not the sole holder of economic rights and (ii) the authors had consented to such exploitation of the works (reproduction and distribution) as e-mail correspondence between them and the publisher confirmed that. In addition, the manuscripts were handed over to the publisher, which could be considered as an oral licence. The case was tried on two instances and the Metropolitan Appeal Court eventually concluded as follows: One of the authors’ heirs (grandchild) alone was entitled to initiate a suit for copyright infringement and its legal consequences as according to the general rules of civil law on joint ownership. In this respect, the court declared that the claimant was entitled to enforce the authors’ rights alone in respect of the infringement, and where the claimant held the economic rights to the copyright work only for 50 per cent, the claimant could only enforce her rights proportionately (re the unjust enrichment). Thus, the claimant had the standing to sue. The inclusion of works already communicated to the public in a periodical required a licence. Under according to Article 45(1) of the Copyright Act 8 (Article 76 of 1999 on Copyright), a licence to use a copyright work is subject to a written consent. E-mail correspondence and the handover of the manuscripts cannot fulfil the requirement of obtaining a written licence from the author. The calculation of unjust enrichment was reasonable: to include a poem/shorter literary work in a periodical, the licence fee of approx EUR 30 was considered reasonable. (4) A valid licence may only be obtained in a written form, and an implicit act cannot be considered as a valid licence for the use of copyright works. (1) Decision No Pfv.IV.20.671/2017 of the Curia [Supreme Court of Hungary] published in the Review of Court Decisions under BH 2018.228 (2) Assignment of ‘option rights’ for concluding a licensing agreement to third parties is only valid with the consent of the copyright holder. (3) The case concerned the licence to certain future use of Albert Wass’s book titled the A funtinelli boszorkány and whether ‘option rights’ to future use based on a pre-contractual agreement could be validly assigned to third parties. The defendant held the copyright to the book and concluded an ‘option agreement’ with a film production company, the subject of which was the future transfer of the economic rights for the purposes of film production andscriptwriting as well as secondary rights to the produced film. According to the agreement, the film production rights were granted to the company for 3 years from the date of the agreement, with the proviso that at latest on the first day of the filming, the parties would conclude a licence agreement regulating the scope of the rights and licence the company will hold. Later on, the parties signed a further agreement stating that: (i) the draft script adaption of the book would be approved by the defendant as right holder; (ii) the filming rights would be granted for 3 + 2 years hereafter; and (iii) the agreement would act as a precontract to the final licence agreement. The claimant, as shareholder to the company, sold its shares and at the same time agreed with the company that the filming rights stemming from the initial agreement would lie with him, meaning that he would be entitled to enforce the ‘option rights’ to the licence. The claimant and the company informed the defendant of this transaction, but no agreement was concluded between the claimant and the defendant. The claimant requested the court to create the licence agreement between the claimant and the defendant according to the terms set out in the ‘option agreement’. Meanwhile, the defendant argued that the claimant had no standing to sue as, according to the applicable provisions of civil law, the defendant had not agreed to the assignment of rights and obligations to the claimant as natural person in any form. Furthermore, the filming rights and therefore the ‘option rights’ to the licence expired already without the claimant enforcing them. Based on the above captured background, the case was tried on three instances where the Curia [Supreme Court of Hungary] upheld the decision at first and second instance in declaring that the subject of the ‘option agreement’ was two-fold: on the one hand, it provided an option to conclude a licence to the adaptation of the book for filming purposes and the licence to prepare a film production based on the book; on the other hand, it also provided secondary rights that only related to the film already produced, such as distribution of the film. In this respect, it is confirmed that the company was not entitled to assign the ‘option’ for the licence without the consent of the defendant as rightholder. Furthermore, the rightholder never agreed in writing to the assignment that is a legal precondition. (4) The Curia—additional to the lower instances—emphasized that providing a licence is a personal right of the copyright holder and as such it is only the exclusive right of the defendant to grant such licence. Hence, based on the principle of nemo plus iuris, the company was unable to assign licence rights that it had never acquired from the defendant. Based on this reasoning, the claimant had no standing to sue. The Netherlands (1) District Court of Amsterdam 17 May 2019, NL:RBAMS:2019:3566, Journalist v De Persgroep (2) As to the question of whether the remuneration for an author’s work can be deemed fair in the sense of Dutch copyright contract rules, all relevant circumstances should be considered, such as the nature and extent of the transferred exploitation rights, the market conditions and exploitation risks. (3) The court decided on the question of whether a remuneration of €0.13 per word was fair for a freelance journalist paid by a publisher of regional newspapers. Since 2015, the payment of fair remuneration is required by law as a result of the Dutch Copyright Contract Act. Whether or not the compensation is fair should be decided taking all relevant circumstances into account, such as: the nature and extent of the transferred exploitation rights; the market conditions (the negotiating position of the author); the exploitation value of the work (exploitation result and exploitation risks). In addition, it is important to ascertain what is customary in the relevant sector. Therefore, what a (freelance) journalist earns per hour on the basis of a compensation per word is a relevant criterion. It also plays a role whether this remuneration can be deemed proportionate to what an employed (salaried) journalist earns per hour. However, the remuneration which an employed (salaried) journalist is not automatically the right standard for determining what constitutes a fair remuneration, in that it is only one of the relevant criteria. (4) This case shows that, under Dutch copyright contract law, it is important to provide evidence of customary remuneration schemes in the sector concerned. This underlines the importance to substantiate arguments in ‘fair remuneration’ proceedings by painting a clear picture of what is customary in the sector and which application of the remuneration standard in the sector may be fair in the specific case. Spain (1) Judgment of the Appeal Court of Barcelona No 1640/2019, 26 September 2019. (2) Limitation of the assignment of the rights in future works by an author: the rights to an identified work (eg the next work to be published by the author) are assignable. (3) This judgment considers it valid to have a contractual clause consisting of a first refusal right of a publisher for the exploitation rights of the first work that the author intends to publish after the work that is the subject matter of the contract. The author considered that this clause would not valid because a publishing contract cannot include future works (Article 59.1 of the Spanish Copyright Act) and, in any event, an assignment of the exploitation right over the set of future works that an author may create in the future shall be null and void (Article 43.3 of the Spanish Copyright Act). The court established that the clause at issue was an assignment of right, so the limitation of assignment of rights of the set of future works that an author produces applied. The court clarified that this limitation would not imply that no future work could be assigned, but only that, to assign copyright in a future work, such work should be identified and the possibility of performing that work should be limited in time. Regarding the identification of the work, the judgment also clarifies that it is not required that the work must be conceived or planned, or the title be identifiable. The court concluded that the clause including a right of first refusal of a publisher for the exploitation rights of the next work of the author was valid and enforceable. (4) The importance of this judgment is the delimitation of the flexibility to interpret the possibility to assign exploitation rights over future works not only in respect of conceived and planned works but also future identifiable works limited in time. D. Collective rights management Czech Republic (1) Constitutional Court of the Czech Republic, Petr Houlík v INTERGRAM, III.ÚS 3102/16, 21 May 2019 (2) When defending the rights of represented authors, it must be proven that a collecting society has active standing to bring court proceedings, ie it is entitled to represent the authors' rights before the court. It must be especially proven that: (i) the protected copyright works were made available to public, and therefore the copyright was infringed; (ii) the works in question fall within protected works being officially administered by the relevant collecting society; and (iii) the user making the copyright works available to public is having concluded the licence agreement with the relevant collecting society, if required. (3) The Regional Court in Prague ruled that claimant Petr Houlík had made radio and television broadcast available to his customers without concluding the required licence agreement with INTERGRAM, an independent collecting society of performers and producers of phonograms and audio-visual fixations (CS), thus infringing the authors' rights. The claimant challenged the decision before the Constitutional Court of the Czech Republic which cancelled the decision as unconstitutional and returned it to the Regional Court for a new ruling. The merit of the case was whether the claimant should have been obliged to conclude the licence agreement with the CS because he was provably making the copyright works available to public (ie the performances of performers, audio/audio visual records of authors and producers represented by the CS). As the Constitutional Court stated in its earlier decisions, if a collecting society wishes to represent authors' rights before the court, it must be certainly proven that the collecting society has active standing and that the authors' rights were infringed. This test is made by assessing whether: (i) the protected copyright works were made available to public and therefore the copyright was infringed; (ii) the works in question fall within protected works being officially administered by the relevant collecting society; and (iii) the user is making the copyright works available to public in accordance with law (ie further to the conclusion of a licence agreement with the relevant collecting society, if required). In this case, the claimant proved that he was only broadcasting sports events and sportscasts at his premises. The CS argued that (according to the Decree of Ministry of Culture) it was entitled to represent not only performers but also the authors of music, including the music works being played at various events that are further broadcasted by TV. By this argument, the CS declared its active standing in this case (and supported it by submission of a single agreement concluded with the Czech famous sports commentator). The Regional Court underlined that the CS was not obliged to prove which particular copyright works were broadcasted, as it was sufficient that they could theoretically be broadcasted by TV and radio placed at the premises. First, the Constitutional Court declared that according to the Decree of Ministry of Culture, the CS was not entitled to represent the authors of music as described by the CS. The findings of the Regional Court that the CS had active standing in the proceeding was found incorrect and, as such, it caused reasonable doubts whether the Regional Court was assessing the infringement of authors' rights truly represented by the CS (the CS had not made any further evidence then mentioned above to support its active standing in this case). Secondly, the Regional Court indirectly concluded that the performance of a sports commentator falls within the definition of artistic performance and performer as defined in the Copyright Act. However, the Regional Court had not provided any express reasoning to this; it only indirectly resulted from the fact that the Regional Court admitted the active standing of the CS based on the agreement with the Czech famous sports commentator. However, the Constitutional Court noted that the Regional Court failed to provide sufficient reasoning for such conclusion. Therefore the burden of proof of active standing was not sufficiently proven again. Thirdly, as to the question of the infringement of the copyright works, it was not proven that the claimant had actually made available to the public the copyright works of persons (authors/performers) represented by the CS. The CS had only provided evidence establishing that the claimant had one TV and one radio at his premises regardless of what kind of production was broadcasted there. However, the CS did not demonstrate that any other works falling within their competence had been also broadcasted and the Regional Court confirmed that the CS was not obliged to prove which particular copyright works were broadcasted. However, such an approach was contradictory with former long-term decisions of Constitutional Court saying that if the CS asks for unjust enrichment it must prove that the defendant/user certainly (or with the maximum probability of certainty) infringed the copyright of persons represented by the CS. (4) Questions regarding the collective rights management, licensing and the relevant licence fees to the collective rights manager are often a subject of debate and disputes, in particular in respect of broadcasts. Even if collecting societies have become litigious over the past few years, judgments are inconsistent in this area. Hence, the decision of the Constitutional Court can help unify the interpretation and provide further clarity in the field of collective rights management. Finland (1) Market Court, 513/19, Finnish Composers' Copyright Society Teosto ry v MTV Oy, 29 November 2019 (2) The case at hand concerns a dispute relating to reasonable compensation payable for use of sound recordings on various television channels and services and, more specifically, the interpretation of Section 35 of the Act on Collective Management of Copyright 1494/2016 ‘Collective Management Act’ (implementing Directive 2014/2612). The court found that the fees calculated by MTV Oy for Pay TV services based on the fees of the Swedish copyright organization STIM demonstrated a reasonable compensation level for years 2017 and 2018 and were in accordance with Section 35 of the Collective Management Act. One can note that the compensation level originally claimed by Teosto ry was significantly higher than the compensation confirmed by the court. As for the Free-to-air ‘FTA’ television services of MTV Oy's channels, the court confirmed that Teosto ry's music usage fees in 2017 and 2018 were in accordance with Section 35 of the Collective Management Act. One can also note that the court ordered MTV Oy to pay outstanding FTA royalties according to original claims of Teosto ry. As regards the online services the court did not take any position. (3) The parties provided a number of economic expert analyses on fee levels and information regarding the fee levels in other countries. MTV Oy presented competition law-related argumentation in the litigation. The court noted that the government proposal for the Collective Management Act states that under competition law, collective management organizations hold a dominant position in the market which places their operation under specific requirements. (4) This was the first dispute handled by the Finnish Market Court under the Collective Management Act (entered into force in 2017). The decision is not final. (Also note that Bird & Bird Finland is representing one of the parties in the dispute.) Hungary (1) Decision No 8.Pf.21.212/2017/6 of the Metropolitan Appeal Court published on the website of the Association for the Protection of Performers’ Rights (EJI) (2) Under Hungarian law, performers have the right to receive equitable remuneration for, inter alia, the broadcasting or other communication to the public of sound recordings as well as for the making available of fixed performances. Performers have the exclusive right to authorize the making available of fixed performances, notably when they are made available to the public in such a way that members of the public may access them from a place and at a time individually chosen by them. Over the past few years, EJI has been on the quest of enforcing this right, as in Hungary there exists a system of extended collective management of rights. (3) The conflict arose when many of the music platforms claimed that they had already paid performers through various deals with record companies, despite such deals clearly being in contravention of the protection that performers enjoy under Hungarian law, unless the right holders validly opted out of the extended collective management of their rights. As according to the case history, in Hungary Blogmusik SAS (dba Deezer) has aimed to operate lawfully and had obtained licences from and paid the respective fees directly to the record companies, additionally it obtained the necessary licence to its streaming services from the Association for collective rights management of music composers, songwriters, authors, writers, poets and music publishers (Artisjus). However, Blogmusik SAS (dba Deezer) failed to obtain a licence from EJI or to provide EJI with the mandatory data necessary for calculating such levies. For the calculation of levies, the amounts payable to a certain type of use—arguably such as on-demand ‘making available’ of fixed performances—are published in the Hungarian Gazette every year by legislation (however, the levy publication in itself is not a legal instrument). The suit initiated by EJI as claimant had two main claims: (i) the establishment of infringement of the performers’ neighbouring rights as of 1 October 2012 and (ii) the reimbursement of the levies payable to EJI. The Metropolitan Court had separated the two claims and first made a decision on the establishment of infringement. Whereas in respect of the second claim of EJI on the reimbursement of the levies, the parties came to an out of court settlement on the first instance, ie the details of that decision had not been disclosed to the public. The defendant Blogmusik SAS (dba Deezer) argued that the Hungarian regulation on extending collective rights management of performers (unless specifically opted out) to the licensing of on-demand making available of fixed performances is contrary to general principles of civil law, further since EJI claims to act on behalf of all performers of the world, English language information shall be available on EJI’s website making the applicable legal provisions, in particular, the opt-out requirement accessible and clear. The defendant also claimed that the levies published every year based on legal provisions are not tailored and therefore are not directed for this type of use (streaming services as new technology) and the payment of such levies would annihilate the activities of Deezer in Hungary. Additionally, the data provision requested by EJI requires such a high volume of tracks (over 30 million soundtracks) that in itself is impossible to retrieve. With the above background, the case was tried on two instances where the Metropolitan Court concluded the followings that were upheld by the Metropolitan Appeal Court: Declared that the defendant had been infringing the performers’ neighbouring rights with its services provided under www.deezer.com that fall under the scope of Article 73 (1)(c) of the Copyright Act. It ordered the defendant to provide the necessary data within 45 days for calculating the payable levies. EJI had the standing to sue in general and also in respect of the suit in question as the defendant is not exempted from its obligations under Hungarian law by paying the levies to Artisjus or to the record companies (as claimed by Deezer). The court emphasized that it is not the payment of the levies to the performers that have decisive relevance, but the fact that no proof was submitted to support that the performers opted-out from the extended collective rights management. (4) Online music streaming service providers are subject to licence and levy payment obligations of the Association for the Protection of Performers’ Rights based on the statutory provisions on extended collective rights management, unless the performers file an opt-out declaration with full probative force with the Association. E. Moral rights Denmark (1) Maritime and Commercial High Court, Tal Rosenzweig v KANSKE DENMARK ApS, BS-51005/2019-SHR, 2 December 2019 (2) Temporary injunction against KANSKE DENMARK ApS (also called Letho) manufacturing of wristwatches with cut-out pieces from the painting ‘Paris Chic’. (3) Danish artist Tal R (Tal Rosenzweig) is the author of the painting, which Kanske Denmark ApS bough. The dispute concerned whether Letho's watch project involved an alteration to the painting or whether it was a destruction which is then used to create another work (a watch) under free use of the previously destroyed painting. The court found that the painting was made available to the public in an altered form—regardless of whether the painting can be recognized or not in the watch face—that was in conflict with the copyright of Tal R and his right of integrity and that the exploitation was not trivial. Further, the court stated that Letho's marketing as a trader constituted free-riding on Tal R's market position and passing off. Thus, the temporary injunction was issued. (4) This case is significant as it dealt with the question of what constitutes a new original work and what is merely an alteration that requires the author's consent. Germany (1) BGH, judgment dated 21 February 2019—I ZR 98/17—HHole (for Mannheim) (2) An artist requested the restoration of an artistic installation created by her in the Athene tract of the Kunsthalle Mannheim museum, which extended over several floors and was firmly connected to parts of the building. The installation was removed and destroyed in the course of renovations. (3) In the BGH's opinion, claimant's asserted claim was not admissible. It is true that the creator has the right to take action against the distortion of his/her work pursuant to section 14 UrhG and the destruction of the work constitutes a relevant ‘other impairment’ within the meaning of section 14 UrhG. However, the creator's right to prohibit such ‘other impairment’ is not guaranteed without restriction, as it is subject to a comprehensive balancing of the conflicting interests of the creator and the owner. On the part of the creator, the fact that the work is unique or has a specific threshold of originality could be of particular importance. On the part of the owner, the authority resulting from his/her right of ownership according to section 903 German Civil Code (BGB) is to be considered in order to proceed with the object at will, eg for constructional reasons or due to changes in use. The owner's interests usually take priority. (4) By means of its decision, the BGH brought some legal clarity. It has been controversial for a long time whether the destruction of works constitutes a distortion or other impairment according to section 14 UrhG, against which the creator can take action. The BGH affirmed this and, therefore, strengthened the rights of artists on the one hand. However, the owners of works protected by copyright have rights as well and usually, their ownership interests are likely to outweigh the interests of the creators of art in the context of a balancing of interests. The latter should thus contractually stipulate the obligations of maintenance with regard to their works of art. Hungary (1) Decision No Gf.IV.40.003/2019/11 of the Appeal Court of Pécs published in the Review of Court Decisions under BDT2019.4062 (2) Infringement of the author’s moral rights may only be realized by a natural person adapting/modifying the architectural plans without a licence to do so. Providing financial support to the realization of the actual building based on such adopted plans is not a moral rights infringement. (3) This case concerned the adaptation of the architectural plans of Imre Makovecz as originally prepared for a sacral memorial place, where the purpose of the plan’s adaptation was to create a touristic place promoting wine tourism. The defendants (the local city administration, the architect studio and a third person providing financial funds to realize the modified building) did not seek to obtain a licence for the adaptation/modification of the original plans from the claimant, whilst also repeatedly referring to the plans as designed by Makovecz. The claimant submitted that the building realized based on the modified plans would be seen as an error by the experienced architect. The claimants (company of the deceased Imre Makovecz and his heirs) argued that its copyrights to the architectural plans had been infringed alongside the architect’s moral rights. It also sought a declaration of infringement of personal rights (injury to reputation) as realized by the statement by one of the defendants (city mayor): ‘designed by Makovecz’. The case was tried on two instances and the Appeal Court of Pécs eventually ruled that the economic rights of the claimants had been infringed by the adaptation of the original plans by one of the defendants (architect studio). Further, it assessed three main aspects and concluded as follows: Providing financial support to the realization of the building based on the modified plans was not considered an infringement of the right of integrity. This was based on Articles 13 and 67 of the Copyright Act, according to which the rightholder’s right to integrity is infringed by the unauthorized adaptation/modification of the work, realized by direct active activity affecting the physical/moral integrity of the work. In respect of the right to adaptation/modification (as an economic right), the court concluded that financial assistance or taking part in the investment to the adaptation provided by the defendant is not considered an infringement. ‘Adaptation’ means such modification of the original work that a new (derivative) work is created. In case of architectural plans, this may be realized by an architect; consequently, providing financial contribution to such modification is not infringement of the right of adaptation. In respect of the injury to the author’s own reputation, it confirmed that the mayor had not infringed the personal rights of the claimant through the statement above. The reason for this is that such false statement may only realize ‘injury to integrity’ if such statement is capable—in the eyes of the general perception of the public—to harm the social perception of the effected person. Hence, a false statement of fact in itself does not realize infringe one’s own personal rights. The Netherlands (1) Supreme Court 29 March 2019, NL:HR:2019:451, De Vier jaargetijden (2) The ‘reputational damage test’ to be applied for infringement of moral rights due to ‘other modification’ of a work is to be understood in light of Article 6bis(1) of the Berne Convention. This test requires a balancing of the author’s interests and those of the person who has modified the work. (3) In light of Article 6bis(1) of the Berne Convention, the reputational damage test is the only balancing instrument relating to distortions, mutilations and ‘other modifications’ of works. As the reputational damage test requires a balancing of the competing interests of the parties, there is no room for any further balancing of interests after assessing reputational damage. According to the Dutch Supreme Court, all factors relevant to the reputation of the author must be considered, including, in particular, the following factors: the nature and seriousness of the impairment; the degree of recognition/fame of the work and the author with the relevant public; the reason for the alteration which caused the impairment; the impact of the modification on the relevant public; the time that has already elapsed between the completion of the work and the modification. (4) In line with this decision, it is important to advance the full spectrum of arguments that may have an impact on balancing in the context of the ‘reputational damage’ test because, in principle, there is no further opportunity to advance balancing arguments in the subsequent infringement analysis. V. Referrals to the CJEU in 2019 Belgium (1) C-372/19: request for a preliminary ruling from the Commercial Court of Antwerp lodged on 10 May 2019—Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v BVBA Weareone.World and NV Wecandance13 (2) WEAREONE.WORLD and WECANDANCE contest the licence fees claimed by a management company for the use of music from its repertoire during their events. The festival organizers challenge the validity of the tariff on the grounds that it is, inter alia, unfair due to an abuse of a dominant position. (3) SABAM is a collecting management society which represents authors of musical works in authorizing the use by third parties of those works. Weare.One and Wecandance are festival organizers. SABAM claims licence fees that the festivals would have to pay for the use of music from its repertoire during these events. According to the festival organizers, the tariff applied does not correspond to the economic value of the services provided by SABAM and is unfair because of an abuse of a dominant position. More particularly, the rate system applied by SABAM is based on instalments and does not take into account the exact proportion (using the modern technological means) of the repertoire protected by the collecting management society played during the event. Furthermore, the tariff does not allow deducing all (non) music-related costs (ie the entrance price, the beverage prices, the artistic budget for the performers, etc). Determining the reasonableness and fairness of author's remuneration is a very sensitive and complex issue. This is the exercise that the CJEU will go through in answering the following question: does the flat-rate system applied by the collecting management society SABAM comply with Article 102 TFEU and Directive 2014/26? (1) C-597/19: Request for a preliminary ruling from the Commercial Court of Antwerp lodged on 6 August 2019—M.I.C.M International Content Management & Consulting Limited v Telenet BVBA14 (2) The Belgian court made a referral to the CJEU concerning whether the downloading of a file via peer-to-peer network and at the same time making available of ‘pieces’ of the file for uploading (‘seeding’) can be regarded as a communication to the public. (3) M.I.C.M Mircom International Content Management & Consulting Limited initiated legal proceedings with the aim of obtaining from Telenet the identification data linked to certain IP addresses of Telenet clients that allegedly committed copyright violation by downloading and uploading works via peer-to-peer file share networks. Telenet objects to these claims, as they raise a number of fundamental questions, including among others whether Mircom has sufficient (copy)rights to pursue the alleged copyright infringements and whether, as a copyright troll, Mircom commits an abuse of the rights derived from Directive 2004/48. In its judgment, the court decided to refer four preliminary questions to the CJEU, among others on the concept of communication to the public in the context of a peer-to-peer file-sharing network and on whether a so-called copyright troll is entitled to enjoy the rights conferred by that EU directive. Germany (1) BGH, judgment dated 21 February 2019—I ZR 153/17—YouTube-Drittauskunft (2) A film production company requests information pursuant to sections 101(1) and (3) UrhG from the operator YouTube about the email addresses and telephone numbers of users as well as the used IP addresses due to the infringing upload of protected content by said users. (3) In the context of this (third-party) request for information, the BGH had to discuss the question of whether ‘address’ within the meaning of section 101 (3) UrhG also includes email addresses and telephone numbers of users as well as IP addresses. Since section 101 UrhG constitutes the national implementation of Articles 8(1) and (2)(a) of Directive 2004/48, the BGH presented this issue to the CJEU for guidance. In its order for reference to the CJEU, the BGH is of the opinion that email addresses are ‘addresses’ pursuant to section 101(3) UrhG or, respectively, within the meaning of Article 8 (2)(a) of Directive 2004/48. However, the BGH did not render a decision with regard to the telephone numbers or, respectively, IP addresses and merely stated that information on telephone numbers could possibly be the only means of enabling effective law enforcement, while IP addresses could only possibly be required. (4) The decision of the CJEU will be of crucial practical importance. In the case of copyright infringements on digital platforms such as YouTube, rightholders usually have no knowledge of the infringer's identity. In order to effectively prosecute such infringing actions and to hold the infringers accountable, the rightholders depend on information from the platform operators. It remains to be seen whether the CJEU will attach greater importance to a more effective law enforcement on the Internet or to the ‘right to anonymity’. The Netherlands (1) C-442/19: Request for a preliminary ruling from the Dutch Supreme Court; Supreme Court 5 April 2019, NL:HR:2019:503, Brein v NSE, and Supreme Court 7 June 2019, NL:HR:2019:849, Brein v NSE (2) Posing prejudicial questions to the CJEU, this case seeks to clarify the concept of communication to the public and the scope of the safe harbour for hosting in the case of a platform which offers users an overview of newsgroups and/or a unique Message-ID which enable them to find and download copyright works. (3) NSE is an operator of a platform for Usenet services. This platform is used for exchanging messages and consists of several newsgroups. These newsgroups can also be created by users. The Message-ID is automatically generated when a user posts the message. Users can retrieve messages by selecting a message in the overview of the newsgroup or directly by using the unique Message-ID. The principle behind Usenet is that messages posted by users of a Usenet provider are exchanged with all other Usenet providers. All messages are stored on the servers of the Usenet provider, the ones received from other Usenet providers through synchronization. Some messages contained protected works, thus, enabling the users to download copyrighted works from the servers of NSE. The question in this case is whether NSE’s actions fell within the liability shield following from the safe harbour for hosting (Article 6:196c(4) of the Dutch Civil Code; Article 14(1) of Directive 2000/31). The Supreme Court referred prejudicial questions to the CJEU because there was reasonable doubt as to whether NSE had made a communication to the public. On the one hand, the Court of Appeal had found that the services of NSE had a purely technical, automatic and passive nature. Hence, it could not be ruled out that NSE had only provided facilities as referred to in Recital 27 of Directive 2001/29. On the other hand, protected works had been made available to the public through the NSE platform without the consent of rightholders. NSE had facilitated that these works could be found and downloaded by users of the platform based on an overview of newsgroups and/or a unique message-ID. (4) With the constant development of technological possibilities, it remains difficult to determine which actions fall within the scope of the safe harbour for hosting. Sweden (1) C-637/19, Patent and Market Court of Appeal, J.J. v M.A., PMFT 12151–17, 27 August 2019 (2) The Patent and Market Court of Appeal decided to request a preliminary ruling from the CJEU regarding how the concept of ‘public’ should be interpreted under Directive 2001/29. (3) The case before the national court concerns two individuals who both have their own websites. In separate proceedings between the same parties, one of them, M.A., submitted a copy of a photograph from J.J.'s website to the court as evidence. J.J. stated that M.A. had infringed his copyright and claimed damages from M.A. One of the questions in the case is if the submission of the photograph to the court means that it has been communicated to the public within the meaning of the Swedish Copyright Act and Directive 2001/29. According to the court, it is unclear how the concept of ‘public’ should be interpreted when it comes to submitting copyrighted works to a court. The question specifically relates to whether a court should be regarded as the public and, if that is the case, whether there is a difference if the work has been distributed or communicated to the court. It should also be pointed out that it follows from Swedish law that anybody, as a general rule, has the right to access any document that has been submitted to a court. The questions that the national court has therefore asked the CJEU are as follows. Does the term ‘public’ in Articles 3(1) and 4(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society have a uniform meaning? If Question (1) is answered in the affirmative, is a court to be regarded as falling within the scope of the term ‘public’ within the meaning of those provisions? If Question (1) is answered in the negative: In the event of communication of a protected work to a court, can that court fall within the scope of the term ‘public’? In the event of distribution of a protected work to a court, can that court fall within the scope of the term ‘public’? Does the fact that national legislation lays down a general principle of access to public documents in accordance with which any person who makes a request can access procedural documents transmitted to a court, except where they contain confidential information, affect the assessment of whether transmission to a court of a protected work amounts to a ‘communication to the public’ or a ‘distribution to the public’? (4) The CJEU ruling will potentially have implications on court proceedings in Sweden and, depending on the ruling, might restrict what a party may file as evidence in order not to infringe third-party copyrights. The individual country reports were authored by: Troy Gurnett and Shariqa Mestroni (Australia); Benoit Van Asbroeck and Charlotte Haine (Belgium); Andrea Jarolímková (Czech Republic), Peer B Petersen (Denmark); Anna Kallio, Mikko Nurmisto and Ella Mikkola (Finland); Edouard Treppoz (France); Roman Brtka (Germany); Bettina Kövecses and Bálint Halász (Hungary); Daniele De Angelis (Italy); Sabrina Lodder, Clemens Molle and Martin Senftleben (the Netherlands); Daria Gęsicka and Michał Sałajczyk (Poland); Teresa Mercadal Menchaca (Spain); Rebecca Fassihi and Kajsa Zenk (Sweden); and Graham Smith and Katie Rimmer (UK). Footnotes 1 " Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2001) OJ L167, 10–19. 2 " Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (2017 ) OJ L154, 1–99. 3 " Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (2000) OJ L178, 1–16. 4 " Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information (2019) OJ L172, 56–83. 5 " Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (1996) OJ L77, 20–28. 6 " Please note that the written reasoning of the judgment is not yet publicly available. The analysis is based on press reports from court hearings and the verbal justification presented by the court upon delivery of the verdict. 7 " Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (2019) OJ L130, 92–125. 8 " Corrigendum to Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L157, 30 April 2004) (2004) OJ L195, 16–25. 9 " Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights (codified version) (2006) OJ L372, 12–18. 10 " Directive (EU) 2015/2436 of the European Parliament and of the Council of 16 December 2015 to approximate the laws of the Member States relating to trade marks (2015) OJ L336, 1–26. 11 " Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (codified version) (2009) OJ L111, 16–22. 12 " Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (2014) OJ L84, 72–98. 13 " Commercial Court of Antwerp (28 February 2019) A/17/3033 and A/17/3573. 14 " Commercial Court of Antwerp (29 July 2019) A/19/4443. © The Author(s) 2020. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) TI - National copyright decisions round-up 2019 JF - Journal of Intellectual Property Law & Practice DO - 10.1093/jiplp/jpaa027 DA - 2020-05-01 UR - https://www.deepdyve.com/lp/oxford-university-press/national-copyright-decisions-round-up-2019-JhZk4XfB7N SP - 332 VL - 15 IS - 5 DP - DeepDyve ER -