The 1709 Blog: September 2013

Friday 27 September 2013

Setback for SPEDIDAM in France

We know best

On September 11th last, SPEDIDAM, the French collecting rights body for (lead) performers (beneficiaries of a so-called neighbouring right) suffered an important setback. Having noticed that Fnac (the French retailer) was offering various sound recordings for paid downloading, SPEDIDAM brought legal proceedings arguing that such a use required the prior authorization of the performers (under Section L.212-3 of the Intellectual Property Code) notwithstanding the fact that authorization had already been given for the fixation and marketing of phyisical media (vinyl, CDs).

SPEDIDAM was arguing that the applicable statutory provisions relating to perfomers' rights were to be interpreted as requiring separate authorizations for the marketing of physical media and on-demand downloads.

The Cour de cassation (Supreme Court) affirmed the appellate ruling in favour of Fnac. The Court noted that while pursuant to Section L.212-3 of the IPC the performer must authorize public communication of his performance, the Court of Appeal had found that, according to the information on the signed attendance sheets, the performers had authorized the exploitation of the recording of their performances as "sound recordings published for commercial purposes".

The Supreme Court held that the Court of Appeal had correctly held that the legal characterization as sound recording (phonogramme) was independent of the existence of a tangible medium such that the relevant authorizations given by the performers covered the making available to the public by means of downloading for pay.

In other words, a "sound recording" (or "phonogramme" in French legal parlance) is not dependent on there being a tangible medium. In authorizing the creation and publication of a sound recording based on their performances, the performers were in effect authorizing both offline and online commercial use.

The ruling also contains some interesting discussion on SPEDIDAM's standing (or lack thereof) to bring such proceedings.

The decision can be found here in French.

Thursday 26 September 2013

It's time for CJEU fun again

Awww ... Two new copyright cases
to think (and dream) about

1709 Blog readers who also follow The IPKat will be already aware that there are two new exciting copyright references for a preliminary ruling awaiting a decision of the Court of Justice of the European Union (CJEU).

The first reference is from Austria and concerns jurisdiction in online infringement cases. Case C-441/13 PEZ EJDUK is in fact all about interpretation of Article 5(3) of the Brussels I Regulation and what "where the place where the harmful event occurred or may occur" may possibly mean in the context of websites which host allegedly infringing materials (a photograph in this case).

The question awaiting an answer is the following:

'Is Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [the Brussels I regulation] to be interpreted as meaning that, in a dispute concerning an infringement of rights related to copyright which is alleged to have been committed in that a photograph was kept accessible on a website, the website being operated under the top-level domain of a Member State other than that in which the proprietor of the right is domiciled [Or. 2], there is jurisdiction only

- in the Member State in which the alleged infringer is established; and
- in the Member State(s) to which the website, according to its content, is directed?' [also known as 'intention to target', on which see - among other things - the recent Opinion of Advocate General Jääskinen in Case C-170/12 Pinckney (here, here, here)]

As recalled by helpful and learned copyright resource Cyberleagle by 1709 Blog friend and Bird&Bird partner Graham Smith, this is just the latest in a series of recent references concerning internet jurisdiction.

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The second reference is Case C-419/13 ART & ALLPOSTERS INTERNATIONAL. This is a Dutch case concerning (alleged) transformative uses of copyright-protected works, seeking clarification about exhaustion of the right of distribution.

Allposters used the works of rightholders represented by Dutch collecting society Pictoright by altering and reproducing them on canvas. Allposters argues that the works were significantly altered and disseminated to the public in a different form; therefore Allposters did not infringe the copyright of the rightholders (for an accurate synopsis see EU Law Radar ).

The Dutch Supreme Court has referred the following question to the CJEU:

'Does Article 4 [concerning the distribution right] of Directive 2001/29/EC (the Copyright Directive) govern the answer to the question, whether the distribution right of a copyright-protected work which has been sold and delivered within the EEA with the consent of the rightholder where the reproduction has been subsequently altered in respect of its form and is again brought into circulation?'

Judge Chin Appears to Bolster Google’s Fair Use Claim

The permanent team is composed of: Ben Challis (Music Law Updates; Glastonbury Festival), John Enser (CMS Cameron McKenna Nabarro Olswang LLP), Ken Moon (AJPark Law), Angela Saltarelli (Chiomenti), and Marie-Andrée Weiss (Law Office of Marie-Andrée Weiss, New York and Strasbourg).