The team is joined by GuestKats Mirko Brüß, Rosie Burbidge, Nedim Malovic, Frantzeska Papadopolou, Mathilde Pavis, and Eibhlin Vardy
InternKats: Rose Hughes, Ieva Giedrimaite, and Cecilia Sbrolli
SpecialKats: Verónica Rodríguez Arguijo (TechieKat), Hayleigh Bosher (Book Review Editor), and Tian Lu (Asia Correspondent).

Monday, 30 June 2014

Alice in Patentland: a comic perspective

Here's the first page ...
A picture of wisdom.  The IPKat's talented and imaginative friend Julia Powles has found a bright and memorable way to depict the tale of the US software patent saga of Alice v CLS Bank [noted on this weblog here], featuring Judges Rader, Thomas, Scalia et al in -- you may have guessed correctly -- Patentland.  You can see for yourself on, 30 June 2014, here.  According to Wired:
"Law Comics is the brainchild of Julia Powles, who researches and writes on law, science and technology at the University of Cambridge. She's collaborating with a range of artists and writers in order to bring Law Comics to the world.

Law Comics is a project steered by non-boring lawyers to render iconic legal cases in full-colour glory, accompanied by short, authoritative, whimsical texts," Powles tells "The aim is to animate the magnificent stories of law to engage and empower the curious public"".
This Kat is happy to see initiatives like this, and hopes that Julia's talents will be transferred to some other tempting topics, such as rulings of the Court of Justice of the European Union on web-blocking, repackaging of pharma products for parallel trade and supplementary protection certificates for patents ...

The illustrations for Alice in Patentland have been created by Ilias Kyriazis.

The best of all possible copyright worlds

It is not easy to talk about copyright and the public domain nowadays and say anything concrete without sounding ideological. During his lecture at UCL [on which see Annsley’s full report here], Professor Hugh Hansen brilliantly managed to hit at least one of these two targets, allowing the audience to bring home at least three key concepts:

(a) There is an ongoing war between copyright holders and those who hate copyright, which might incidentally correspond to those who promote the public domain;

(b) Copyright holders are on the right side;

(c) Really, they are.

The smell of gunpowder is very familiar to those who deal with copyright in the modern world. Lawyers, lobbyists, counsel and even professors are often pressed into military uniform: pirates against good fellows, good fellows against mean right holders, constitutional property against the public domain.  In their very essence, such conflicts are substantially commercial. Yet, many of the guys involved get truly emotional, and it is not rare to hear them declaring true hatred against the other side.

Life is about catching nuances
This Black v White approach is funny. Identifying an enemy and blaming him to death is the very basis of western society [if you fancy some reading on this, Girard’s books are a must-have]. It also makes it easier to talk of work during non-professional dinners. There is no need to be an insider, though, to realize that this might be not the full story.

What copyright and most of (those who are viewed as) anti-copyright people care about is managing their own business in the most profitable way possible. Both sides have likely realised that the law is not reactive enough to be regarded as the only answer to new challenges. Beyond the forefront battles and unsophisticated representation of a copyright scenario merely characterized by fights to the death, things are currently moving in innovative, constructive and extremely interesting directions, where copyright is still key but in a world which reflects a rich spectrum of colours.

A first phenomenon, not mentioned often enough, eg, is the one that involves a long-standing, profitable collaboration between the two parties of such supposed war in fighting piracy over the internet. Covered by the noise of reciprocal accusations, ISPs and right holders have been working together for years on notice and take down procedures, that have become an increasingly effective way to deal with IP infringement on the internet. The even more effective Follow the Money approach is now setting new levels of interaction between the two parties. This collaboration has led both parties to know each other, and this process is supposed to continue now that some traditional right holders are attempting to become internet service providers and some internet service providers are undertaking commercial initiatives once considered exclusive territory of content providers.

Another issue that deserves attention concerns right holders’ evolving approach towards copyright enforcement and exploitation, which for the sake of brevity this Kat likes to call “copyright in the course of trade”.

This weblog’s readers might recall the Getty Images story. It was about the world’s most important picture agency accepting the idea of its photos being grabbed and diffused without its authorisation, and adopting a new open licence that allows non-professional users to embed a major part of its archive for free. While the terms of paid licence remains the same for companies and professionals, Getty Images would not enforce copyright against amateurs, obtaining in exchange a bunch of relevant information as to how, when and by whom their contents are used, along with promotion of its service and photographers.

A few weeks ago Pixar, the ultra-famous computer animation film studio, announced a similar initiative for RenderMan, its most important 3-D rendering software, used, among other things, to create masterpieces like Toy Story and, as far as this blog is concerned, Shrek’s friend Puss in Boots.  While professional users still have to pay the licence fee for using that software, amateur cartoon-makers can now download and non-commercially use RenderMan free of charge. According to some observers, Pixar’s move is addressed to make RenderMan the standard program to design 3-D cartoons. Users became creators, and it is better use copyright to foster a wide non-commercial diffusion than to prohibit uses out of trade.

Victoria Espinel, president and CEO of BSA - The Software Alliance, made a similar point during the IP Enforcement Summit that took place in London on 11 June 2014. Ms Espinel explained that, in principle, suing non-professional users for copyright infringement is no longer considered the best option. She said:

"In the past, BSA has asked governments to criminalise downloading by people. We will no longer do that [where there is no] intention of distribution or making a profit … our focus is working with companies and governments to make sure they are using licensed software."

And this is so true that BSA decided to cancel the word “piracy” from the title of its annual report, starting from 2014. Things are drifting in substantially the same way in the music industry, most of whose supporters find Prince’s lawsuit against the mum who put on YouTube the video of her 18-month child dancing “Let’s go crazy” more despicable than the actions of the company which manages YouTube [I said “most”].

Remnant of previous wars.
We have the privilege of living in a world that evolves quickly, and mostly for the best. Mass literacy and the internet are putting in question the role of content provider and intermediaries, substantially changing the very significance of “content”, “provider” and “intermediaries”. This change is not reversible, as non-reversible are users’ demand for content for little or nothing and the need for creative industries to obtain a fair remuneration for what they do. Intellectual property is just and wonderful, as it can allow all these things to happen. Beyond the strong conflicts that recent changes are physiologically causing, businesses are adapting to the new challenges with fantasy and creativeness, building up collaborative interactions that go far beyond the two-dimensional representation of a war “good v bad”. Many exciting things are occurring under the sun, and these are as worth to be told as the pretended final battles between IP and so-called "anti-IP" people. While the law is slowly attempting to fit into the new world, the IP community is called upon to play an important role -- to explain fairly what these bizarre and fundamental rights are about and to push for a reasonable balance between interests involved. The whole game is about making profits, not preventing others from doing so. We can call it war, but we don’t actually need to mean it, as

(a) Copyright is cool, and so may be public domain;

(b) Things are going better than what we usually admit;

(c) Really, they do.

Five file-sharing facts – and a farewell from me

For my last post in my sixth month stint as a guest Kat, I thought I would draw together a couple of developments on (or at least related to) one of my favourite subjects – blocking injunctions (see here and here for two of my previous efforts on this front).

1.   In the Netherlands, battle has been raging for years between BREIN, a Dutch anti-piracy organisation and XS4ALL and Ziggo, two Dutch ISPs. BREIN wants those ISPs to block The Pirate Bay (TPB), the notorious bittorrent tracker site already blocked by court order by the major ISPs in the UK. A block was ordered at first instance, but overturned on appeal by the Hague Court of Appeal on the basis that the block was neither proportionate nor effective (judgment here, in Dutch). BREIN has appealed the case to the Dutch Supreme Court. Earlier this month XS4ALL issued a statement, again in Dutch. XS4ALL explains it opposes illegal downloading, but that blocking TPB did not reduce such activity while also blocking lawful information. Explaining the procedure before the Supreme Court, XS4ALL signs off by noting that it has until 5 September to file its Defence to the appeal.
I'm actually allergic to cats. No seriously.
2.   This Kat oft ponders why, once blocked by ISPs, unlawful websites are still easy to find on search engines. As blogged here, the UK’s IP advisor to the Prime Minister Mike Weatherley MP had proposed that search engines should voluntarily block sites subject to ISP blocking orders. No rights owners have yet asked a court to force a search engine to do this in the UK (although why not – the law would seem to permit such a request in this Kat’s opinion), but they have in Canada, as Torrentfreak reports. The outcome has been very good for the rights owner – a court in British Columbia has ordered Google to remove links to infringing material not just from, but from everywhere – including .com, and Google is appealing, but if courts in one jurisdiction now feel confident in ordering search engines to make changes to their indices worldwide, that’s a big development in favour of rights owners.
3.   Also from Torrentfreak comes news of Google taking positive blocking action, having apparently voluntarily removed links to Bayfiles, a file-hosting spin-off of TPB, from its index. Links remain in place on other major search engines. This thread on reddit suggests links to the site may still be available from certain national Google sites but not all, with some users suggesting that the removal is down to a specific policy violation by Bayfiles rather than an anti-piracy move by Google.
4.   More from Mike Weatherley, who last week released a report entitled “Follow the Money” which considers "what has been done by the advertising industry, payment processors, Government and law enforcement to reduce the potential for website owners to profit from IP related crime”. It’s a good read, and includes Mike’s view that solving IP crime needs a three-stranded solution of Education, Carrot and Stick. Under Stick, Mike says:
“Finally, the stick part of the approach focuses on IP enforcement. It is very much a last resort option, but it is important that IP enforcement legislation has real teeth when all else fails. It should be a graduated enforcement response. Warnings and fines are obvious first steps, with internet access blocking and custodial sentencing for persistent and damaging infringers not to be ruled out in my opinion (one for a later discussion paper no doubt!)”
This Kat is deeply sceptical we’ll see such penalties for infringers this side of the 2020s. The first stage of the Digital Economy Act, which is largely about sending angry letters to infringers, is nowhere to be seen four years after the Act was enacted. The second stage, in which punishments, but lesser ones than Mike proposes, were to be meted out, has been all but forgotten.
5.   Finally, the Guardian reports on an interesting potential development in the UK courts’ jurisdiction to order blocking injunctions. The power under section 97A to order such blocks is limited to addressing instances of copyright infringement. But luxury brand powerhouse Richemont has made an application for a block under section 37(1) of the Senior Courts Act 1981 (the High Court’s general power to grant injunctions where it considers it just and convenient to do so) in respect of websites selling counterfeit goods in infringement of its trade mark rights, rather than copyright. Definitely one to watch.
My favourite and most popular illustration this year
On that note, this Kat bows out of his time as a guest Kat. A big thank you to Jeremy, the rest of the IPKat team, and to everyone who has read my posts, commented or emailed me in response to them. I hope that rather than just fill up your inboxes, my postings have informed and educated you or, failing that, that my lolcat pictures have amused you.

Monday miscellany

Fun in the sun. This year's IP Summer School -- IBC Legal's 14th Annual IP Law Summer School to be precise -- is coming up soon. From 18 to 22 August 2014, a happy crew of IP enthusiasts will be gathering together in the splendid setting of Downing College, Cambridge, to enjoy each others' company as well as five days of intensive fun-filled instruction. The latter is supplied by a team of highly-experienced IP practitioners and personalities, not excluding blogmeister Jeremy.  This is now the fourth fifth severalth time that Jeremy has been involved: his input is in an IP arbitration exercise that focuses on resolving a simulated trade mark dispute. All good fun, but there's always a serious edge to it and the objective is to inspire and to instruct. Click here for further details and registration -- and don't forget to quote your IPKat VIP Katcode FKW82458IPKL to claim your 20% discount.

Readers' comments. The lead item in last week's Friday Fantasies on the subject of abusive comments, particularly from unidentifiable readers, attracted a large and animated response in the form of readers' comments and emails.  This Kat is glad that he raised the subject. If nothing else, it showed that a large number of readers are happy with the notion of this blog continuing in its role as a didactic weblog that promotes its writers' largely pro-IP views while welcoming opposing opinions and constructive criticism and jettisoning abuse; a smaller number are manifestly unhappy, possibly because they think this weblog should be some sort of unmoderated chat-room for the venting of personal spleen and ire. Another small minority appears to make no distinction between criticism and personal abuse at all.  This Kat proposes to post no further comments on this topic. Merpel, who agrees, suggests that those who feel that this blog strangles debate rather than promotes it are welcome to start their own blog and do things their own way: just let us know and we'll give you a plug in the next available 'Around the weblogs' feature, she adds. One final point: one of the anonymous commentators has posted an allegation of plagiarism in relation to an unspecified contributor to this weblog: the IPKat, as is well known, does not condone or tolerate plagiarism in any shape or form (and, curiously, has been criticised for his position on this topic: see here). Both he and Merpel are willing to pursue any allegation of plagiarism that is supported by evidence

Around the weblogs.  The Class 99 design law and practice weblog, hosted by European trade mark organisation MARQUES, has just reached and indeed surpassed the 1,000 mark for email subscribers: well done! On SOLO IP, Barbara Cookson introduces us to the Cateys, an awards event for those involved in the catering industry, reviewing the centrality of IP to this important sector (a Catey is displayed on the right). On Class 46, Edith Van den Eede reviews a recent Italian action in which the Rome Court refused applications for declarations of non-infringement against protected designations of origin MAREMMA TOSCANA and CAPALBIO for wine. Finally, on Art & Artifice, Angela Saltarelli writes on a battle over ownership of two paintings by Lucas Cranach the Elder, another unhappy chapter in the story of art works separated from their owners during the Second World War.

COMING SOON: tomorrow we name our three new guest Kats for the period 1 July to 31 December 2014.

Saturday, 28 June 2014

Airline accessories action comes crashing down as passing off claim fails

Over the past fortnight I have spent in excess of 30 hours on aircraft, from London to Singapore to Kota Kinabalu in Borneo, from Sandukan back to Kota Kinabalu and home again, so it is fitting that my first post back from holiday should be about some of the few comforts afforded to economy class passengers onboard planes.

This is just me and a monkey taking a selfie,
nothing to do with the case
Orvec International Ltd v Linfoots Ltd [2014] EWHC 1970 is a passing off and breach of contract case heard by HHJ Hacon in the IPEC and concerned textile products which Orvec sold to airlines for use by their passengers. These products included pillows, blankets, headrest covers, tray mats and towels (Hot towels? Questions Merpel, They burn my paws!).
Linfoots, an advertising agency, handled Orvec’s website and printed advertising, including photography of Orvec’s products. Linfoots retained copyright ownership in these photographs. After nearly a decade of happiness, the parties’ relationship came to an end. The parties went their separate ways.

Some of Orvec’s products were made in Hong Kong by Intex. That relationship also came to an end. Following this, Intex jumped into bed with Linfoots and Linfoots supplied photographs for Intex’s website.
Orvec wasn’t happy about these photographs and sued Linfoots on two bases:
  • First, it claimed that some of the images supplied to Intex were those Linfoots created for Orvec. Supplying them to Intex was, claimed Orvec, a breach of an implied term in Linfoots’ standard terms and conditions: the implied term gave Orvec a perpetual and exclusive licence under the copyright in the photographs.
  • Second, by using the images Intex was passing itself off as Orvec. Linfoots – the only defendant in this action – was liable too as it had created an instrument of fraud or because it had procured Intex’s passing off.
Sadly for Orvec, both of these claims failed. Aside from the law, the claims really suffered on the facts and evidence. Orvec only succeeded in showing that Linfoots had supplied Intex with a single image (of a BA pillowcase) which was originally supplied to Orvec (it appears there were more, but they were only raised at the start of trial and the judge thought it unfair to let them in). Orvec’s evidence was lacking in other respects as well.

Was there an implied term granting Orvec exclusivity and so a breach of contract by Linfoots? No…
On the question of the implied term, HHJ Hacon found Lord Hoffmann’s comments in Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10 (a judgment of the Board of the Privy Council) instructive. Lord Hoffman noted that the court has no power to improve a contract or introduce terms to make it fairer or more reasonable. Its task was to work out what the contract meant:

“…It follows that in every case in which it is said that some provision ought to be implied in an instrument, the question for the court is whether such a provision would spell out in express words what the instrument, read against the relevant background, would reasonably be understood to mean…. this question can be reformulated in various ways which a court may find helpful in providing an answer – the implied term must "go without saying", it must be "necessary to give business efficacy to the contract" and so on – but these are not in the Board's opinion to be treated as different or additional tests. There is only one question: is that what the instrument, read as a whole against the relevant background, would reasonably be understood to mean?”
Although cautious about adding a factor into this test, HHJ Hacon felt that the simplicity or complexity of the alleged implied term was important:

“…I think that the more complex the putative term, the less likely it is that the reasonable person would take it to be an implied part of the contract. As a rule terms with detailed formulations will either be present as an express term or not at all. A usual characteristic of an implied term is that it is simple.”
Proboscis monkey says: "Always provide
for copyright in your agreements"
Linfoots’ standard terms and conditions were short and sweet – nine sentences long. The essence of the alleged implied term was that Orvec had an exclusive licence to the photographs such that Linfoots couldn’t supply them to anyone else. The high point of Orvec’s argument here was that some of the photographs included its trade marks and/or the livery, trade marks and logos of Orvec's airline clients. As Linfoot (or any third party) could not have a legitimate reason to use such photographs, Orvec must have been impliedly granted an exclusive licence to them. It should also follow, contended Orvec, that the same term was implied in respect of other photographs not showing the trade marks of Orvec of its customers.

There is a force in the first argument – a trade mark owner who pays a photographer to take pictures of his trade mark-bearing products would be shocked to find the photographer selling them on to other parties – although he may have his trade mark rights to rely on to prevent this.
In considering it, HHJ Hacon drew a distinction between a designer creating a logo for a client (where the client would not expect the designer to be able to copy it or give it to others) and a photographer taking pictures of a product which bore the client’s trade mark. In the latter case, as just noted, trade mark rights would be in play and further it might be possible for the photographer to make use of the photographs with the trade mark removed or edited out (although this Kat is a little uncomfortable with that idea, and feels it would very much depend on the photograph and how the mark was redacted).

The judge then went on to note the need to take a minimalist approach in implying copyright licences: starting with a bare licence, progressing to an exclusive one only where appropriate, and finally to an assignment of copyright in the unusual case of Griggs Group Ltd v Evans [2005] EWCA (Civ) 11.
Taking all this together and applying a simple and minimalist approach to the alleged implied term, all the judge was willing to imply was a non-exclusive licence to Orvec to use the photographs. If anything more than that was to be implied, it would only be for the photographs in which Orvec’s trade marks featured (where as above the issue is a little trickier). However, Orvec had failed to demonstrate that any such photographs had been supplied to Intex by Linfoots.

Accordingly, with Orvec in possession only of a non-exclusive licence to the relevant photographs, there had been no breach of contract by Linfoots.
How about passing off by Intex in which Linfoots participated? Nope…

A successful passing off claim requires a demonstration of goodwill, proof of a misrepresentation and of damage. Orvec’s goodwill was not disputed.
As ever this claim came down to whether or not there had been a misrepresentation. Orvec claimed the following misrepresentations:

(1) "Intex's use of the Images provides customers and potential customers with the impression that these products [in the images] originate from Intex when, in fact, they originate from the Claimant."
(2) "It also provides customers and potential customers with the impression that the customers identified by their trade mark, logo and trade dress are Intex's customers when, in fact, they are the Claimant's customers."
Orvec relied upon Bristol Conservatories Ltd v Conservatories Custom Built Ltd [1989] RPC 455, which establishes the principle that where a defendant represents the claimant's article as being the product of his own efforts and skill, this may be an actionable misrepresentation. Orvec argued that by showing on its website samples of products that were recognisably used in the cabins of various airlines, including a BA pillowcase, Intex falsely represented that (1) the products came from Intex when in truth they came from Orvec and (2) these airlines were customers of Intex when in truth they were not.

Chen-Chen the orangutan questions
the quality of Orvec's evidence
Orvec struggled to make good these claims on the evidence. The judge found that most of the products shown in the photographs had in fact been made by Intex. The evidence was less clear on one other, but the product shown was generic and gave no indication that it originated from Orvec. Further, the evidence was that most of the airlines represented were customers of Intex, so again there was no misrepresentation.
The high point this time for Orvec was in respect of the photograph of the BA pillowcase. BA was an important customer of Orvec and had never been a direct customer of Intex. Further, the fact that the pillowcase was used by BA would have been recognised by those in the industry reviewing the photograph on Intex’s website. However, the pillowcase had actually been made by Intex and then supplied to Orvec. Orvec then sold it to BA. So indirectly it was an Intex product and HHJ Hacon saw no misrepresentation in Intex using a photograph of it in these circumstances.

Thus Orvec failed to show any passing off by Intex. Without that, there could be no liability upon Linfoot for its involvement in that passing off and so the instrument of fraud and procurement claims were not considered further.
A weak claim doomed to crash?

It is always easy as a commentator to reflect on a failed case, with hindsight, and wonder why it was ever brought. But this Kat will do it anyway: one wonders here why the evidence was so poor – Orvec failed to get the right photographs into the case in the first place, leaving it to rely on a single image for most of the claim. This was notwithstanding that it was represented by solicitors and experience IP counsel (as was Linfoots). Orvec also relied in its passing off claim largely on products which Intex had actually made for Orvec, which its advisors must have known would make things much harder.
There is always more at play in these cases, and judgments never reveal the commercial factors involved in pushing an action to trial. But one gets the feeling that this case would have benefitted from a bit of reflection once the evidence had been compiled, and possibly an emergency landing thereafter.

On the other hand, perhaps Orvec should be given some sympathy - suddenly finding photographs made for it of its products on its competitor's website. Is the failing to stop that conduct a reflection on the way Orvec fought its case, or on the straightjacket imposed by English law's tort of passing off in the absence of a far more flexible tort of unfair competition?

Photographs courtesy of my holiday in the jungles of Borneo

Friday, 27 June 2014

How will increasing numbers of old geezers affect intellectual property?

Ageing is ever a work-in-progress—just ask this hoary Kat. Beyond individual aches and pains, the subject of ageing and the resulting demographics have increasingly occupied social scientists and policy-makers across various fields. In brief, the argument runs as follows: at the back end, people are living longer, to some extent working longer (either by necessity or choice), on the one hand, but fewer and fewer children are born, at the front end. The result is that fewer and fewer working age people are being called upon to support an increasing number of senior citizens, putting national budgets at risk and threatening social cohesion. Absent from these discussions, however, as best as this Kat can determine, is attention to the question of whether the changing age make-up of populations might have any effect on intellectual property and, in particular, inventive activity.

The data seem to speak for themselves regarding ageing. To ensure population stability (immigration is a separate and often contentious matter), the so-called fertility (or replacement) rate, being the number of children a woman is likely to have during her child-bearing years, has famously been marked as 2.1, whereby two workers will replace their parents as they drop out of the labour force. A fertility rate of above 2.1 (but not too much above) will add additional young workers to support their retired parents and grandparents, while a fertility rate below that number will put increasing pressure on national economies seeking to support their senior citizens. As has been well publicized, many countries especially in Europe and Asia are well below the replacement rate. Thus, for Europe taken as a whole, the replacement rate is 1.6 (being significantly below that in certain Mediterranean and East European countries as well as dropping in Germany); it is around 1.6 in China (largely the result of the one-child policy); it is 1.4 in Japan and 1.3 in South Korea. To the contrary, the numbers in France, Nordic countries and the United States show a replacement rate around 2.1, while Israel, almost alone in the Western world, is at 2.9. Taken as a whole, nearly half of the world’s population may soon not be replacing itself.

All of this is well and good, but what about IP? Let’s start with the basic question: how, if at all, does age affect inventive activity? It seems to this Kat that one proxy for gauging this metric is the distribution of inventors by age. Using five to ten-year age cohorts, is inventive activity, as measured by the number of patents, independent of the age of the inventor, or is there a greater likelihood that a certain age cohort(s) will be engaged in inventions? This Kat is not aware of any of empirical studies on this point (but he would be delighted if any Kat readers could direct him to such research). Indeed, this Kat wonders whether, even in this age of big data in the service of IP (see for example the piece by Kat riend Nigel Swycher in the latest issue of IAM magazine, “Big data solutions to determining IP risk and value”), it is even possible to extract such information.

Let’s assume that such data, at least in some form, can be assembled. What they might be their implications? An insight to this question was suggested in a contrarian piece that appeared on May 31st in The Economist, here. Entitled “Quality time”, with the byline (“Why shrinking populations may no bad thing”), the article (from which some of the data mentioned above was extracted) argued that when education of senior citizens is taken account, the fertility rates need only be between 1.5-1.8 to achieve stability. This is because, as the piece went to conclude:
Better-educated people are more productive and healthier, retire later and live longer. Education levels in most places have been rising and are likely to continue to do so…..Educating more people to a high level will be expensive, both because of the direct costs and because the better-educated start work later. But they will contribute more to the economy throughout their working lives and retire later, so the investment will pay off.
Let’s assume for purposes of argument that there is merit to this conclusion. If so, the ”contribution” to the economy in the form of putting downward pressure on the younger generations of workers to support senior citizens is understandable. But does this “contribution” also mean increased inventive activity? Perhaps extending the working careers of the well-educated will increase the number (and even the so-called “quality”) of patents. If that is a likely outcome, then the observation made in the article should be brought to bear on the analysis of the effects of ageing on inventive activity. But assume, to the contrary, that inventive activity is skewed to young age cohorts. In that case, the presumed benefits from increasing education on altering the dependency ratio between the young and the elderly might actually be offset to some extent by the extended presence of less inventive senior citizens in the productive workplace (who might even block the market entry of potentially inventive younger employees). Given the potential import of which outcome is more likely, obtaining good data to reach informed decisions seems to this Kat to be a matter of particular importance.

Friday fantasies

It's time to exercise
a restraining influence ...
Readers' comments. Over the years, one of the most cherished institutions of this weblog has been the facility to post readers' comments.  While this facility is moderated, the blog team has sought to exercise its prerogative to block readers' comments only where they are plainly spam, entirely irrelevant or (relatively infrequently) defamatory or obscene.  However, this blogger is concerned that this facility is being abused by a number of readers who have begun to post anonymous comments that consist of little other than abuse, whether of members of the blog team or of other readers who have posted comments.  Criticism of another person's opinions or reasoning is acceptable and indeed highly desirable, as is the correction of factual or legal errors -- but there is nothing that can be gained from posting personal abuse and insults, a practice that lowers the tone of debate and does nothing to enhance the reputation of this weblog as a place where even unpopular arguments can be articulated, analysed and, where appropriate, refuted.  Accordingly, this blogger proposes to reject comments that consist entirely or mainly of personal abuse. If any anonymous reader feels that his or her freedom of speech is being compromised (as has been asserted on some previous occasions when this blogger has refused to allow an offensive comment), the person affected is free to post that abuse elsewhere and link back to the Katpost and/or comment. Alternatively, the abusive commenter can emerge from the protective shell of anonymity and give verifiable particulars of his or her identity, so that readers can ascertain for themselves the value, or lack of it, of the ad hominem abuse which they seek to publicise.

Forthcoming events.  Don't forget to check the IPKat's Forthcoming Events page, here: there are always new seminars, lectures and conferences ahead, sometimes free and often with special price reductions for IPKat readers. 

This Kat's first academic employer, the Law School in Trinity College Dublin, has just advertised an assistant professorship in intellectual property law [historical note: in 1979 this Kat succeeded in getting some IP teaching on to the TCD syllabus under the banner of 'Intellectual Property' and not just as a couple of lectures in the Personal Property course. He is thrilled to see what progress has been made there since he left!]. Full details can be obtained online here. The post summary is as follows: 
"The permanent assistant professorship in law is a full-time position. The successful candidate will lead the development of the Law School’s scholarship and teaching in Intellectual Property law. Applications are welcome from legal scholars in the field of Intellectual Property law and related areas. The successful candidate will be required to contribute to the lecturing programme of the Law School and to supervise undergraduate and postgraduate students. He or she will also be required to carry out administrative duties, to engage in research and to be active in seeking research funding. The closing date for applications is 31 July".

An excited email from this Kat's friends at Elipe [briefly mentioned in a round-up here] tells him that this fledgling business's new website is now live at Elipe has been created to help private and public sector organisms focus on policy issues where IP and enforcement are involved, as distinct from providing legal services.  Says this Kat, if the only thing Elipe achieves is to improve the generally woeful standard of media releases and lobbyists' manifestos issued by those folk who seek its services, it will have done something to improve the IP environment. 

Around the weblogs. Does "The Spirit of Cuba" mean "the soul, mood or essence of Cuba", or does the phrase refer to "the alcoholic beverage of Cuba"?  If you were to find it on, say, the cover of a CD or as the name of an aeroplane, it might mean the former -- but when you apply to register those words for rum and rum-based alcoholic beverages in Class 33, consumers might just jump to the conclusion that they are a description of what they might find in a bottle.  Former guest Kat Laetitia explains on Class 46, here.   Elsewhere, Mike Mireles on IP Finance lists some criteria for measuring the success of university technology transfer offices and asks readers what they think of the suitability of those concepts as metrics. The jiplp weblog posts Martin Husovec's penetrating analysis of the issues involved in site-blocking injunctions following the CJEU's ruling in UPC Telekabel. Finally, if you live under the mistaken belief that the word "Telegu" is something to do with televisual or telephonic technology and associated goods and products, check out this recent item on Marty Schwimmer's Trademark Blog for a spot of cultural education.

Neuftec: a footnote.  Those readers with long memories and a firm grasp of attention to detail will instantly recall this weblog's 2008 post ("Oxonica v Neuftec: Flawed Boilerplates") on IP contracts and how not to draft them.  In terms of 'matters arising', Neuftec has been back in court again (Energenics and Neuftec v Hazarika [2014] EWHC 1845 (Ch)), noted here, where a number of claims against former Neuftec director Ronendra Hazarika were dismissed, to his evident relief.

Thursday, 26 June 2014

Fed up with the footie? Here's something to read

The FIFA World Cup has only been up and running for a couple of weeks, and it seems to this Kat that numerous people are becoming quite sick and tired of it. Some resent the saturation coverage on TV, radio and online; others are just sore that their own team has been eliminated, or jealous that a rival nation of footballers whom they consider inferior has progressed further than their own team.  In any event, if you press the 'off' button and wander off in search of something better to so, here is some suggested reading matter:

Overview of the appeal proceedings according to the EPC. This is the title of a new book by Hugo Meinders, Ingo Beckedorf and Gérard Weiss, published by the Dutch Publishers H. Tel, from Haarlem. As this Kat has observerd elsewhere, it's the same book three times over: if you enjoyed reading Hugo Meinders' bit in English, you can check it out in the more businesslike-sounding German version by Ingo Beckedorf and then slip effortlessly into the romantic lilt of Gérard Weiss's French. At any rate, the publishers like it -- and this is what they say:
"... Overview of the Appeal proceedings according to the EPC is the first concise overview of the procedures before the Boards of Appeal of the EPO written by members of the boards. It is published in English, German and French in a single volume. It is available in paperback form. A discount of 5% will be given on orders for 5 or more copies.

The Rules of Procedure of the Boards of Appeal of the European Patent Office were substantially revised in 2003. These Rules make it clear that the function of the Boards of Appeal is a judicial one, namely the review of the appealed decision. Thereto, the proceedings are essentially in writing and the case must as complete as possible at the early stages. They are more a judicial review of the decision than a continuation of the administrative first instance proceedings, particularly in opposition-appeal. Hence, the appeal proceedings are substantially different from the first instance proceedings, a fact not generally appreciated by parties attending appeal proceedings.

The book provides an easily readable overview of the appeal proceedings, in the three official languages of the European Patent Office, which helps in understanding the nature of the appeal proceedings before the Boards of Appeal. The book also contains the complete text of the Rules of Procedure of the Boards of Appeal in the three official languages and an alphabetic index for each language.

The Overview of the Appeal proceedings according to the EPC is indispensable for patent attorneys and lawyers involved in appeal proceedings before the EPO [if practitioners purchased all the books that were described as "indispensible", they'd be quite impoverished by now -- but with great libraries]. It is a reference book both for the practitioner and the trainee".
It's an easy read;  it is also extremely well equipped with marginal references that enable the reader to discover the source of what the authors say without making the text look fussy.  The relative brevity of the text, its clarity of lay-out and the appearance of a handy index all combine to make the reading experience quite a pleasant one.

Bibliographical details: ISBN  978-90-78310-09-9. 275 pp. Soft covers with fold-over flaps to tuck into the volume so you don't lose your place. Price: 55 euro. Rupture factor: very low. Book's web page here.


Selected Chinese Patent Cases, translated into English by Haining Song and Seagull Haiyan Song, has been compiled by  Editor-in-chief Dongchuan Luo. This reviewer has had some bad experiences of books addressing Chinese IP law; most are out of date by the time they are published, given the problems of translation as well as the time-lag engendered by the normal production process. Many also seem to contain mainly recitations of information that is either bland or already known by the reader (much the same stuff as official press releases are made of). Even more are inescapably dull.  Coming to this book with baggage consisting of the low expectations caused by the criteria listed above, this reviewer was quite pleased to discover that this book was not one of the worst offenders; indeed, apart from the perhaps unappealing shade of green on the cover, Selected Chinese Patent Cases was not an offender at all.

What will the reader find in this book? The publisher's web blurb says it all:
"When non-Chinese lawyers complain of “lack of transparency” in China’s IP judicial system, what they are actually complaining about is a lack of good translations of Chinese judges’ decisions [Merpel disagrees: in her view, most people are complaining about the fact that they can't see how courts and administrative bodies reach their decisions -- she has never heard anyone apart from the occasional legal researcher complain about the lack of good quality translations. But never mind ...]. Now at last, two renowned and experienced US–China intellectual property attorneys – both fluently bilingual – take the giant step necessary to bring China’s modes of handling intellectual property disputes into the international mainstream with excellent translations of 20 landmark Chinese patent-related cases, all decided during the past 10 years. Also included and translated are specially commissioned commentaries by the exact judges who decided each case, clearly explaining the “behind-the-scenes” reasoning they used [Merpel pricks up her ears when she hears phrases like "behind the scenes reasoning". Isn't this very like, er, lack of transparency?]. The patent issues covered in these cases include the following:
  • procedures and remedies for patent infringement;
  • determination of “a clerical error”;
  • how to determine similarity between designs;
  • how to properly submit and use evidence;
  • amendments that change the original technical solution;
  • novelty and inventiveness;
  • avoiding improper “hindsight” in assessing inventiveness;
  • interpretation of a claim’s technical terms;
  • doctrine of claim differentiation;
  • patent infringement under the doctrine of equivalents;
  • test standard for deciding identity or similarity between designs;
  • prior art defense;
  • use of a patented process for a medical regulatory review;
  • identifying the manufacturer and seller involved in patent infringement;
  • intentionally manufacturing or selling customized key parts of a patented product;
  • patentee’s liability for improper enforcement of patent right; and
  • preliminary injunction against the import of a patented product.
A detailed introductory chapter authored by Justice Dongchuan Luo and two other IP Judges explains the historical development of the Chinese patent system and describes enforcement mechanisms and procedures, both administrative and judicial. Appendices provide English translations of the most important legal sources of patent law in China. To some readers this sophisticated body of modern Chinese patent law, with its sensitivity to well-established international consensus, will come as a revelation. To these and others, and especially to patent law practitioners, jurists, and academics worldwide, this book will quickly become a cornerstone resource".
This seems a fair enough account, though it doesn't mention the fact that each page bears the marks of two sets of pagination -- something that is not impossible to master but which will surely cause headaches for careless dissertation writers and footnote chasers in years to come.

Bibliographical data: hardcover, xxv + 328 pages.  ISBNs 9041150145 and 13: 9789041150141 360. Price US$150.  Rupture factor: not too high, but this book is heavier than you imagine. Book's web page here.


Intellectual Property, Unfair Competition And Publicity Convergences and Development, edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly, is another of those Edward Elgar Publishing compilations that seem to flow effortlessly from conception to execution in the hands of reliable, respectable academics. According to the publishers:
"Dealing with rights and developments at the margin of classic intellectual property, this fascinating book explores emerging types of regulations and how existing IP regimes inform and influence the judicial and legislative creation of “substitute” IP rights.

The editors have carefully structured the book to ensure that there is a thorough analysis of how commercial values arising at the margins of classic IP rights are regulated. As new regimes of regulations emerge, the question of how existing IP regimes inform and influence the judicial and legislative creation of “substitute” intellectual property rights is explored. By doing this, the contributors interrogate the very boundaries that constitute what IP rights traditionally protect and cover. Should all investments in anything intangible and “intellectual” – such as product shapes, personality, data and organization of an event - be protected as property? Should there be qualitative differences among the types of investments and achievements? These are just some of the interesting questions addressed in this important new book".
This book is scheduled for a fuller review in time to come ...

Bibliographic data: h 2014 384 pp Hardback 978 0 85793 261 7 ebook isbn 978 0 85793 262 4 Hardback price $145; online price $130.50. Rupture factor: small for the hardback, non-existent for the e-book. Web page here.

Crumbs of comfort: McCambridge doesn't even get half a loaf's worth

There is an old and non-legal maxim that "half a loaf is better than none".  But here's a case where a successful plaintiff didn't even get as much as that. It's McCambridge Limited v Joseph Brennan Bakeries [2014] IEHC 269, a recent High Court (Commercial Division) ruling of the thoughtful and erudite Mr Justice Charleton dating back to 27 May. Apologies for the slow post, but this ruling took a little while to find its way on to the BAILII database.  Seasoned readers of this weblog will recall that this is not the first occasion on which these two adversaries have encountered one another in court [see eg "Baker's appeal goes a-rye" here, WednesdayWhimsies here and here, and Monday Miscellany here], but this Kat hopes that it will be the last.

To recap, in earlier proceedings Brennan Bakeries was held to have unintentionally passed off the packaging of McCambridge brown bread. It was then up to McCambridge to choose between damages or an account of profit [as Merpel notes, McCambridge had to use its loaf because it can't have its cake and eat it]. McCambridge opted for the latter, raising the issue of whether an adjudication of an account of profit requires an apportionment approach based only on the extent of the infringement and the sales attributable to misrepresentation -- or a wider approach, taking into account all the profit made by the offending product.

Peter Charleton J determined that an account be carried out of just the profit attributable to the unintentional passing off. He articulated his position as follows:

* Where legislation provides for a choice between damages and an account of profits, the latter is nonetheless discretionary: an account of profit may be refused on the grounds that it is unfair (an account is at heart an equitable remedy, like injunctive relief which may be refused where damages are the proper remedy);

* Where the choice is available, the successful party is entitled to examine the tortious defendant's financial accounts. This is not to measure the damage caused, but so an informed choice may be made as to which remedy to elect.

* Although the intention of the wrongdoer has no impact on establishing whether there has been a passing off or not, it is relevant to the choice of remedy.  This is because, where a degree of malice can be established, damages may be awarded on an aggravated or exemplary basis, whereas an account of profit depends upon the apportionment of profits according to the particular abuse.

* For the purposes of assessing the quantum of damages for passing off, the relevant market is the marketplace of the average consumer, which will be throughout the country where products are advertised on a nationwide basis, and there must be some operative confusion. In this context the sale of goods to middlemen for distribution, even where the goods are not placed on the open market and made available to the average consumer, is relevant to both establishing damage and to the decision whether to elect for damages or opt for an account.  Also, the  fact that infringing goods were sold in different locations is relevant to a broad analysis as to how the tortfeasor's sales increased by its passing off its own product as that of another.

* An account of profit is an equitable remedy requiring a broad approach based on a reasoned approximation of the appropriate proportion of the defendant's profit caused by the wrongdoing. The purpose is neither to punish, nor to analyse the harm done to goodwill, but to remove any unjust enrichment attributable to the improper profit made by the tortfeasor. Relevant factors include profit levels before and after the wrongdoing, the make up of the offending goods and the probability of confusion.

* Passing off is different from other IP rights. In copyright, patent and confidence cases, the approach to an account of profit is nuanced, having regard to the degree of contribution the infringement had to the infringer's overall return. Where infringement is part of a process leading to a product, an approximation must be made and, where the whole product is made through infringement, the entire profits are part of the account. Where a passing off case is equivalent to a trade mark case, the rights holder may be entitled to all profits earned on the ground that the distinguishing mark enables all of the sales. However, where (as in this case) (i) the infringing article was the packaging and not the entire product, (ii) the bread had been on the market and achieving profits prior to the change in its appearance and (iii) the passing off was unintentional, wrongful profit made from the sale of the bread in the offending packaging would be assessed at approximately a third of Brennan Bakeries' brown bread sales.

There's more to this judgment than a blogpost can conveniently summarise, including a considerable quantity of case citation, and it's particularly worth noting since modern cases on account of profits are not that frequent.  This Kat still feels that, under the IP Enforcement Directive 2004/48, a successful plaintiff shouldn't be forced to elect between damages and an account of profits and that he should be able to ask for both so long as there's no actual double-dipping when it comes to quantum -- but that argument never seems to get an airing.

Merpel likes the bit of the judgment that goes:
"As every judge is aware, even basic factual circumstances can be diffracted through legal argument and expert opinion so that what is in plain truth a stone can become as amorphous as sand".
Bread and butter here
Bread and jam here

Private copying and levies: what is the AG Opinion in Copydan all about? A Katfriend explains

Katfriend and private copying guru
Javier Ramirez
As reported by the IPKat, last week Advocate General (AG) Cruz Villalón issued his Opinion in Case C-463/12 Copydan Båndkopi v Nokia, a reference for a preliminary ruling from the Østre Landsret (High Court of Eastern Denmark) regarding - among other things - the private copying exception within Article 5(2)(b) of the InfoSoc Directive, in particular private copying levies. 

Prior to the AG Opinion, Katfriend Javier Ramirez had explained that this case is important because the Court of Justice of the European Union (CJEU) has been asked to address some issues that are critical to both the future of copyright levies in the internal market and the development of legitimate digital licensing models in Europe.

Javier is now back with a very thoughtful analysis of the AG Opinion [not yet available in English: will it ever be?]. Here's what he writes:

“The first challenge for the AG was to simplify the long list of prejudicial questions dealing with multiple aspects of copyright levies which were referred by the Danish court and re-group them to facilitate the analysis. 

He consolidated them around seven different subjects, but before starting to deal with each of those re-formulated questions, the AG made a clear summary of the principles established by the jurisprudence of the CJEU in relation to the private copying exception and the notion of fair compensation (paras 24–30):
·    Member States may adopt an exception or limitation to the reproduction right to allow private copying, but this requires compliance with both the requirements in Article 5(2)(b) of the InfoSoc Directive and Article 5(5), ie the three-step test) (paras 24-25), as well as providing rightholders with a fair compensation (para 26);
·    Such compensation is intended to indemnify rightholders for the harm suffered as a consequence of the establishment of the private copying exception; precisely, the principle of “fair balance” between right-holders and users of protected works requires that such compensation must be calculated based on such harm (paras 26-29);
·    Member States have a wide margin of discretion to determine who has to pay the fair compensation and how, as well as details and level of such compensation. In any case, fair compensation must be based on the harm caused by use of the works, and comply with the limits posed by EU law, including the three-step test and the principle of equal treatment as per Article 20 of the Charter of Fundamental Rights. Moreover, the parameters of the fair compensation have to be set in a coherent manner.

A levy on phone memory cards?

Following these preliminary observations, the first question that the AG addressed (paras 33-39) was whether a copyright levy may be imposed, in principle, on devices such as phone memory cards whose primary function is not to make private copies, but nonetheless are capable of making such copies. 

Having recalled the Padawan decision, the AG concluded that, in principle, levies can be imposed also on devices like phone memory cards provided that there is a link between the application of the levy and use of those devices for private copying. Such use may be presumed when reproduction devices are made available to natural persons acting for private purposes, but not otherwise.

However, this conclusion should not be interpreted to mean that mere suitability for reproduction is sufficient to place a levy upon a device to compensate for any “potential harm” it might cause, as such presumption was subsequently blended when dealing with the next question about the conformity of Danish levy system with EU law.

Danish levy system

Danish system imposes levies on phone memory cards but not on built-in memories of devices such as iPods and MP3 players that are designed and primarily used for private copying. 

The AG concluded that Member States may exclude reproduction devices from payment of levies when an objective justification exists. This justification may consist (and in my view usually does exist) where the likely and actual use for private copying will be low and therefore logically any harm caused will be insignificant as determined under a statistical assessment. 

Moreover the objective justification to exclude levies on devices may also be found within the particularities of the device itself or the practical aspects of the compensation scheme, or further if such devices operate with or in connection with other devices which are already subject to such compensation.  

Lastly and very importantly, there could be also an objective justification if it is difficult or impossible to distinguish between devices used for private or professional purposes. As the AG noted under the application of the Padawan jurisprudence, it is forbidden to impose an indiscriminate application of levies and payment is authorised only on devices made available to natural persons for private purposes (paras 47-49). However, whilst those criteria may apply for devices such as PCs, they do not seem likely to apply to devices such as MP3 players and iPods that are specifically designed and primarily or exclusively used for private reproduction purposes. Moreover, a generic differentiation on payment of compensation based exclusively on whether recordable memory is built-in or removable is against the InfoSoc Directive (paras 50–53).

Double payment? Nice try!
Additional levies in connection with online services

Next, the AG dealt with the critical and controversial issue of whether additional compensation may be sought by means of levies in connection with legitimate online business models, where rightholders have already received direct or indirect compensation in the form of a licence. 

By relying on Recitals 35 and 48 of the InfoSoc Directive, plus the principle that fair balance and adequate correlation must exist between the harm caused and the amount of compensation, the AG concluded that this piece of EU legislation precludes the application of additional levies to reproductions authorised by rightholders which have already resulted in payment of a fee or another form of compensation. 

Practical difficulties which may exist for the application of such exemption, especially if levies are paid at the manufacturer level, cannot justify a double payment under any circumstances. This means that natural persons who have overcompensated rightholders should have the possibility to obtain a refund (paras 57-68) in an easy and effective way.

Technological protection measures and levies

The AG then dealt with the impact that effective technological measures (TPMs) have on the compensation. He mainly relied on VG Wort to conclude that availability and/or application of TPMs does not preclude the right to receive fair compensation, but may nonetheless have an impact on the level of such compensation (paras 69-80). 

In my view, there is a gap in this assessment, because the VG Wort case dealt only with the issue of whether the mere availability of TPMs which were not voluntarily implemented by rightholders may prevent them from receiving fair compensation. A different situation exists when TPMs are effectively applied by rightholders either to prevent reproduction (and no copying means no compensation, and attempts and actions to circumvent TPMs will be illicit and not subject to fair compensation either) or authorise and limit the number of copies that can be made (licensed copies mean minimal or no harm). Therefore, a distinction should be made between the case when TPMs are effectively applied and when they are merely available but not applied by rightholders.

Illegal copies and fair compensation

Subsequently, the AG considered the impact on the validity or otherwise of the level of compensation arising from the making of copies from an illegal, legal, or third-party-owned source. He referred to the recent ACI Adam judgment [on which see here and here], where the Court followed his recommendation [that indeed still happens, from time to time] and concluded that copying from illicit copies cannot be subject to fair compensation. 

The AG also found that a sensu contrario interpretation is not possible either, and that private copying from legal sources must not necessarily result in the payment of fair compensation. Rather an additional and prior harm assessment must be made. 

The particular circumstances of the case must be also taken into account when assessing whether fair compensation is payable for copying from third-party owned sources, as an individual copy of a CD cannot be assimilated to a massive copying of files contained in a borrowed device. Article 5(5) of the InfoSoc Directive is especially relevant to such assessment (paras 81-96).

Suarez's suggested defence:
it was de minimis harm!
De minimis harm

After this, the AG briefly analysed the so-called “de minimis” rule provided in the last sentence of Recital 35 of the InfoSoc Directive, and concluded that Member States have a wide margin of appreciation when implementing such rule in order to exclude from or subject to fair compensation those situations where harm is minimal (paras 97-101) [this bit of the Opinion is crucial, particularly in the context of current UK debate about proposed private copying exception, on which see the recently released take of UK-based IP professors here]

My opinion is that such conclusion may eventually (almost inevitably) result in an incoherent application of the exception at the level of Member States, and undermine the goal of ensuring a smooth functioning of the internal market (Recitals 7, 31 and 32 of the Directive). Therefore, whether this goal is compromised or not should become the threshold to limit the wide discretion of Member States. It is worth remembering also the applicability of the principle of proportionality, which requires that disadvantages caused must not be disproportionate to the aims pursued. Consequently it would require a holistic analysis of the implications of requesting compensation where harm from copying is minimal (eg reproductions for time-shifting, as specifically provided in the Commission statements on Recitals 35 and 50 when the Council Common Position on the Directive was adopted) and consider in particular the distortions that may result for internal market from subjecting to burdensome levy schemes situations where harm is minimal.

Also Benny is all for balance
At what point the levy is imposed

Finally, AG analysed the implications of a levy scheme which is applied at the manufacturer or importer level when these parties in the supply chain do not sell directly to end-users but through distributors, and consequently are not in a position to identify if those finally acquiring phone memory cards are private or professional users. 

The AG recalled that the principle of fair balance requires that a close link must exist between payment of the levy and its use for private copying and that a levy scheme charged at manufacturer/importer level which does not consider the condition of the end-users that then purchase the devices or the use made of those devices, is not in conformity with Article 5(2)b of the InfoSoc Directive. However, such a levy system may potentially conform to the Directive but only if manufacturers/importers (i) may effectively pass the levy onto natural persons who make the private copies or (ii) can get a refund when devices are acquired for ends manifestly different than private copying (paras 102-112), for instance when purchased by subjects other than natural persons acting for private purposes (para 109).

Unfortunately, given that the decision of the referring court did not detail the circumstances under which Danish law exonerates or secures a refund of levies, the AG did not elaborate on the preference of an “ex-ante” exoneration system over an “ex-post” refund system (as results from Amazon judgment, paras 35-36), and does not refer either to the recommendation raised by Mediator Vitorino of shifting the obligation to pay the levies to the last point of sale, who is in direct contact with the end-user customer and has the ability to filter between business users and consumers efficiently and effectively to apply the Padawan  jurisprudence.

In conclusion

Overall, AG Cruz Villalón thoughtfully analysed the role and challenges of copyright law in the Information Society, as it was recently evidenced in ACI Adam and UPC Telekabel, where the Court followed his observations. Let’s stay tuned for the judgment of the Court after the summer break.”

Thanks so much Javier for this detailed and very helpful note!

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