Tag:  “copyright”  | (3) posts

Copyright in relation to e-books

The copyright protection of authors is being increasingly challenged by the continuing digitalization of the book market. The emergence of the e-book has caused a very IP-relevant question: Is the consumer allowed to re-sell the e-book he purchased?

When it comes to physical works such as hard copy books, European copyright legislation clearly states that once a work has been sold within the EEA, with the consent of the owner, this item can freely be resold to third parties. However, the copying and distribution of digital works is more easy, cost-free and difficult to control. Accordingly, there are many arguments as to why the exhaustion of rights should not apply in the same degree to intangible items.

Despite hereof, the CJEU stated in the UsedSoft/Oracle judgment (C-128/11) of 2012 that the rules on exhaustion does indeed also apply to intangible copies of computer software, as long as the first sale of these was accompanied by a user license agreement. The outcome makes sense as a license agreement does at least limit the possibility of buyers performing unlimited copying and second hand sale.

E-books are typically not sold with licenses, and despite the above decision from the CJEU it therefore remained unanswered whether such could be treated as other software and be legally distributed to third parties after the first sale, without the consent of the copyright owner.

In July 2014, the Amsterdam District Court, somewhat surprisingly found that this was indeed the case. The Dutch website www.tomkabinet.nl provided consumers with the opportunity of re-selling their used e-books for half price of the original e-book. The Dutch publisher union NUV tried to stop this website, as they found such re-sale infringing. However, although the Dutch court agreed this was a grey area, they found that it would be too drastic a measure to close the website, and instead encouraged NUV to refer this question to the CJEU in order to have them decide whether the rights are also exhausted when it comes to sale of intangible items that are not accompanied by licensing agreements.

It will be very interesting to know, whether the CJEU finds such second sale of e-books without accompanying licensing agreements legal and, if so, how copyright owners can be sure that no illegal reproduction of copies is taking place. Obviously, digital security measures are already being taken in order to prevent the copying of e-books. But these are far from bullet-proof, and without actual licensing agreements, it seems very difficult for copyright owners to trace illegal copies and distinct them from the legal originals.

However, the difficulties in controlling the market do not seem to bother the CJEU as demonstrated by a very recent decision of 11 September 2014 (C-117/13), concerning the digitization of books by libraries. The CJEU stated that libraries pursuant to article 5(3)(n) of the Infosoc Directive are allowed to digitize work contained in their collections, and offer them on their publicly accessible databases, regardless of whether a specific licensing agreement has been offered to the library by the right holder. Furthermore, member states may permit users to print out on paper or store on a USB stick the books digitized by the library, as long as a fair compensation is paid to the right holders. Accordingly, things do not seem to become easier for copyright holders to written works.

Anders Michael Poulsen, Attorney at Law, LL.M.

An End to Faking It

Contrary to what many think, IP-law is not subject to an EU-wide harmonisation. This is probably due to the existence of the Community Trademark but bear in mind that all the national systems are still well and alive and existing alongside the EU-trademark.

Recently, the UK Copyright legislation has been amended. Very frustrating for rights’ owners, UK Copyright expired 25 years after the creator’s death. Most other countries have 70 years.

This meant that especially objects of industrial design and designer furniture were reproduced quite legally in Britain. Mies van der Rohe’s Barcelona chair, Arne Jacobsen’s Egg chair and similar classics were among the popular items. The big frustration for rights’ owners was that these products were widely exported across the EU borders.

Some British knock-off manufacturers even had web pages targeting, say, German, Italian or Danish costumers. Some manufacturers even had concrete and public plans of setting up showrooms where consumers from countries with higher copyright protection could see the products and order them.

This was all legal under UK law – but not legal in the rest of the EU member states.

A common misconception by many consumers in the EU is that goods purchased in one member state in general may circulate freely. This is not the case when the goods are illegal in the member state whereto they are ordered. The Internal Market of the EU will always yield to IP-rights. Offering goods for sale indirectly through show rooms does not change this. However, for the rights’ holders enforcement may be extremely costly and cumbersome as each infringement had to be countered nationally.

All this is now well in the past. A recent amendment to the UK Copyrights, Designs and Patents Act 1988 has brought the protection of copyrighted materials in the UK in line with the continental European countries, i.e. 70 years after the creator’s death.

Surely a good thing in the name of harmonisation of legislation, the protection of rights and an incentive to invest long term and create jobs in the creative business sector in the UK?

So is everybody now happy? No. The makers of these classic furniture knock-offs have complained that their business and the jobs will be heavily affected. Lamentable, but hardly a valid argument for sustaining a business that exists mainly with the focus of selling copies to countries where protection is high. And at the end of the day we are still talking about (now) illegal counterfeits.

Others that may be unhappy could be companies such as McDonalds. In Europe McDonalds famously rebranded their restaurants with designer furniture. Then quickly after the stock of same furniture was discovered to be heavily supplemented with designer knock-offs. Although this furniture to some extent – at least in the UK – may have been legal, McDonalds were publicly lambasted by Danish furniture company Fritz Hansen. The company suspended all supplies to McDonalds and accused McDonalds for endorsing piracy and setting intellectual property rights aside. I am sure that many will agree that this was not PR which McDonalds was happy with.

For lovers of copy furniture all is not lost. The works of Arne Jacobsen will exit copyright in 2041 and Mies van der Rohe in 2039…

Thorbjørn Swanstrøm, Trademark and Design Attorney, Attorney at Law, Partner

A new dawn for protection of designs?

It is no secret that the differences in national European law concerning the protection of designs, has been driving many Danish rights holders crazy for years on end. It has been difficult to come to terms with the fact that while many of our prominent Danish designs – designs of which we as a nation are proud – are protected under national Danish copyright law for the lifetime of the designer plus 70 years, it has been perfectly legal to purchase cheap (and sometimes not so cheap) copies in England and have them shipped to Denmark.

Many holders of such rights have fought in vain to stem the steady flow of such copies from England first to private consumers, and eventually and inevitably to the numerous flea markets, garage sales and even auction houses. While importing the copies for purely private use is perfectly legal in Denmark, the selling of such copies on the Danish market is not. But trying to stop private individuals from reselling their used copies is, to say the very least, a losing fight.

Help might just be at hand though, as the UK has recently announced a new measure to increase the protection of such rights. If passed, the protection of copyright in relation to manufactured furniture will be increased from the current span of a short 25 years to the lifetime of the creator plus 70 years, bringing it into line with most other European Union member states.

From a legal perspective, the differences in national laws on copyright protection have given rise to many interesting questions. The laws on copyright have not been harmonized in the EU. Coupled with the laws concerning the free movement of goods in the Union and the advances of internet shopping, it has been possible to find loopholes which allow citizens in some countries to purchase copies from countries with a more lenient law, while in other member states it is punishable even to import such copies. Is it fair that individuals in Denmark can own copies, when in some countries – such a France – it is punishable by law to even cross the border with a fake watch? Importing fake designer furniture into France can cost you a fine of up to EUR 300.000 or even a three year stay in prison.

With such extremes in copyright protection with France and Italy at one end of the scale and the UK at the other, it seems improbable that the laws on copyright will be harmonized anytime soon. For now, all we can hope for is that the UK enacts the suggested provision and sets up a solid system for enforcing it too.

Mette Bender, Attorney at Law