This document summarizes recent and forthcoming copyright decisions from the Court of Justice of the European Union (CJEU). It discusses cases related to exclusive rights including distribution rights, digital exhaustion, communication to the public, and linking. It also covers exceptions and limitations such as parody and library digitization. Upcoming cases involve private copying levies, linking, broadcasting music, and software exhaustion. The European Commission has launched a Digital Single Market strategy to improve access to online goods and services across Europe and maximize growth of the digital economy.

1. ICEL IT Law Conference
Dublin, 26 June 2015
Dr Eleonora Rosati
@eLAWnora
eleonora@e-lawnora.com
Overview of
Recent CJEU Copyright Judgments

2. • Some data regarding relevant CJEU activity (2014 Report)
• Recent and forthcoming CJEU decisions
• Meanwhile …. The policy debate
Contents

3. Some data regarding relevant CJEU activity

4. The 2014 CJEU Report
• In 2014 CJEU completed 69 IP cases
• Cf 2013 Report: 43 cases
• 2014 was year with highest number of cases (1691) ever brought before CJEU
(Court of Justice, General Court, Civil Service Tribunal)
• 1685 completed cases
• Duration of proceedings reduced
• References for a preliminary ruling: 15 months (16.3 in 2013)
• Cases decided without AG Opinion: 208

5. Recent and forthcoming copyright decisions

7. • Exclusive rights
• Distribution right
• Scope of the right: Labianca, C-516/13 (13 May 2015)
• Digital exhaustion: Art&Allposters, C-419/13 (22 January 2015)
• Linking and communication/making available to the public: C More, C-279/13 (26 March 2015)
• GS Media, C-160/15 (pending)
• Exceptions and limitations
• Parody: Deckmyn, C-201/13 (3 September 2014)
• Digitisation of library collections: Ulmer, C-117/13 (11 September 2014)
• Jurisdiction in online infringement cases: Hejduk, C-441/13 (22 January 2015)
• Relationship between copyright, databases and contractual freedom
• What falls under scope of Database Directive: Ryanair, C-30/14 (15 January 2015)
• Terms proposed vs actually agreed: Ulmer, C-117/13 (11 September 2014)
• Private copying levies
• Copydan, C-463/12 (5 March 2015)
• HP Belgium, C-572/13 (pending)
• Egeda, C-470/14 (pending)
• Nokia Italia, C-110/15 (pending)

8. Exclusive rights
Do you need permission to:
• advertise sale of copyright-protected works?
• resell digital copies of protected works?
• link to live TV broadcasts?
• link to unauthorised works?

9. Do you need permission to advertise sale of protected
works?
• Dimensione Labianca offered for sale in Germany
items infringing copyright in Knoll furniture
• Litigation ensued before German courts, and Knoll
succeeded at both first instance and appeal. Case
eventually reached German Federal Court
• In Cassina, C-456/06, CJEU held that concept of
distribution, otherwise than through sale, applies
only where there is a transfer of the ownership of
that object

10. CJEU response
• (Both AG and Court) Case different from Cassina, Titus Donner, C-5/11, and
Rolex, C-98/13 because here ad not followed by actual sale
• In those cases CJEU used phrase “at the very least” = acts or steps
preceding sale may also fall within distribution
• The right of distribution encompasses the right to prevent "an offer for sale
or a targeted advertisement of the original or a copy of that work, even if it
is not established that that advertisement gave rise to the purchase of the
protected work by an EU buyer, in so far as that advertisement invites
consumers of the Member State in which that work is protected by
copyright to purchase it."

11. Do you need permission to resell digital copies?
• Unauthorised making and selling of altered versions of works
(transfer of posters on canvas)
• Could this reproduction be considered OK because of
exhaustion of the right of distribution?
• Recital 28
“Copyright protection under this Directive includes the exclusive
right to control distribution of the work incorporated in a tangible
article. The first sale in the Community of the original of a work or
copies thereof by the rightholder or with his consent exhausts the
right to control resale of that object in the Community”
• Recital 29
“The question of exhaustion does not arise in the case of services
and on-line services in particular”
• Agreed statements Article 6 WCT: only tangible copies

12. CJEU response
• AG Cruz Villalón: right of distribution can be only exhausted in
relation to tangible support (corpus mechanicum) of a work
• “[T]he EU legislature, by using the terms ‘tangible article’ and ‘that
object’, wished to give authors control over the initial … it should be
found that exhaustion of the distribution right applies to the tangible
object into which a protected work or its copy is incorporated if it has
been placed onto the market with the copyright holder’s consent."

13. Do you need permission to link to live
TV broadcasts?
• Mr Sandberg set up website providing links
circumventing C More's paywall and allowing users
to watch live ice hockey matches without paying
• Court of Appeal of Nedre Norrland ruled that no
copyright had been infringed since C More's works
could not be considered sufficiently original (cf FAPL)
• Litigation reached Swedish Supreme Court

14. CJEU response
• Making available to the public forms part of the "wider" communication
to the public
• “[I]n order to be classified as an act of 'making available to the public' …
an act must meet, cumulatively … that members of the public may access
the protected work from a place and at a time individually chosen by
them“
• Del Corso, C-135/10
• Member States can protect broadcasts by means of other provisions,
notably those resulting from Article 8(3) of Rental and Lending Rights
Directive

15. Do you need permission to link
to unauthorised works?
• Leaked pictures to be published by Playboy
• Geen Stijl provided link to zip file with
pictures
• Litigation ensued before Dutch courts
• Supreme Court: unclear how linking to source
freely accessible online, but which
communicates to the public without the
consent of the copyright holder, should be
qualified
• Is it a communication to a ‘new public’?

16. Exceptions and limitations
• What is a parody?
• Can libraries digitise their collections?

17. What is a
parody?

18. The AG Opinion and the CJEU decision
• Structure: original
• Subject: can target an earlier work
or something/someone else
• No need to distinguish between
parody, caricature and pastiche
• Effect: humorous (intent or effect?)
• Content: compliant with the deepest
values of EU society
• Features:
• evoke an existing work while being
noticeably different (no originality
though)
• constitute an expression of humour or
mockery (according to whom??)
• “Legitimate interest” not to be
associated with discriminatory
parody
AG Cruz Villalon CJEU

19. Can libraries digitise their collections?
• Article 5(3)(n) read in conjunction with Article 5(2)(c)
to be interpreted as allowing MSs to grant publicly
accessible libraries to digitise
• An ‘ancillary right’ to digitise
• Anything new?
• What if a MS has one but not also other exception?

20. What is in the pipeline?

21. • Private copying levies
• Member States enjoy great degree of discretion re fair compensation
• Determining who must pay the levy
• By default is producers of blank media (Padawan; Amazon.com)
• Even state budget? Egeda
• Level of compensation must be linked to harm suffered by rightholder (Copydan)
• Whether individual or business costumer matters
• Can exemption from payment be left to private bargaining? Nokia Italia
• Does it matter who reproduces? HP Belgium
• Linking (Playboy case)
• Is broadcasting music in rehab training rooms something that requires
permission?
• Exhaustion for infringing copies of software

22. Meanwhile … The policy debate

23. The Digital Single Market Strategy
• 3 pillars
1. Better access for consumers and businesses to online goods and services across
Europe
2. Creating the right conditions for digital networks and services to flourish
3. Maximising the growth potential of European digital economy
• Translated into copyright language:

24. Thanks for your
attention!
eleonora@e-lawnora.com
@eLAWnora