Why Article 11 of the Directive is not a good solution
For all of us who were curious about the outcomes of a possible new ancillary copyright for press publishers, we need look no further.
As it happens, Germany adopted a “model scale” of the new right in 2013 aimed specifically against web search engines, granting press publishers with an exclusive right to make the press product or parts thereof available to the public for commercial purposes, unless the use consists of individual words or very short text excerpts. Sounds familiar? The EU is about to introduce the same right in Article 11 of the new DSM Directive. Without some major adjustments to the provision that might not be such a good idea, considering the effect the right has had in Germany – even though the court is leaning to rule in favour of the collecting society VG Media, who is suing Google for remuneration based on the new right, Google will not go down without a fight, threatening press publishers with de-listing them, if they would not grant free usage rights to Google. This behaviour has earned Google a separate lawsuit for abuse of a dominant position, which was rejected by Landgericht Berlin denying any abuse by Google, the case is currently pending before the Court of Appeal in Berlin.
The entire conundrum just goes to show, that imposing a link-tax on news aggregators, might result in big news market players getting away without repercussions, and smaller press content providers getting stuck with the bill. Even scientific studies show, why the new ancillary right might not be a good solution.
Also, info for any member state wishing to adopt similar provisions on a national level: AG Hogan recently delivered an opinion that such provisions must be notified to the Commission beforehand.
Yesterday, University College of London (UCL) hosted a seminar on the doctrine of functionality. Experts from different sectors and jurisdictions discussed one of the most debated absolute grounds for refusal of registration of a trade mark, namely that the sign consists exclusively of (i) the shape, or another characteristic, which results from the nature of the goods themselves; (ii) the shape, or another characteristic, of goods which is necessary to obtain a technical result; or (iii) the shape, or another characteristic, which gives substantial value to the goods (Art. 7 of the EUTMR and Art. of the Trade Marks Directive).
On Friday 31 January 2020 at midnight (or at 23:00 GMT), more than three years of various proceedings and discussions finally resulted in Brexit. Nevertheless, its consequences will not fully materialise at least until 31 December 2020, since the United Kingdom and the European Union concluded the Withdrawal Agreement, providing for the transition period during which the EU Law will continue to apply in the UK.
What implications will Brexit have in the area of intellectual property?
Just before Christmas, the CJEU issued its long-awaited decision in the Tom Kabinet case. The Court followed the opinion of advocate general Szpunar and decided that copyrights are not exhausted in case of sale of e-books. A distinction was drawn between e-book and computer programs, the latter not being subject to the exhaustion doctrine. This means that to establish an online market of “second-hand” software no authorisation of copyright holders is required.
The Court of Justice of the European Union (CJEU) has, in its judgment of 29 July 2019 in the Case C‑476/17 (Pelham v. Hütter and Schneider-Esleben), made a significant step forward in interpreting the role of fundamental human rights in the EU copyright law.