In conformity with Berne Convention, the IP Law of Vietnam also provides, under Article 6.1, that “Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered”. The aforesaid legislation means that copyright registration is not a pre-requisite for entitlement of copyright protection and proceeding with legal actions. A work is automatically protected in Vietnam without having to register it with Vietnamese competent authority.
If you're thinking of enforcing against an infringement of your intellectual property rights in Vietnam under administrative proceedings, a thorough understanding of functions, tasks, and capacities of a law enforcement authority in Vietnam will enable you to choose an authority that is competent to handle IPR infringement, to avoid unexpected delays and to maximise the authority’s strength in subsequent enforcement actions.
1. The Inspectorate of Science and Technology
The Inspectorate of Science and Technology include:
(i) the Inspectorate of Ministry of Science and Technology, and
(ii) the Inspectorate of Department of Science and Technology at the provincial level.
Since intellectual property rights (IPRs) constitute a civil right, civil enforcement plays a critical role in
IPR enforcement. However, our analysis of statistics on IPR infringement and enforcement in reports
from enforcement agencies reveals that the vast majority of IPR infringement cases in Vietnam have
been resolved under administrative route over the past time. While thousands of IP infringement
cases are handled administratively each year, only a few cases are tried by courts. The administrative
mechanism is said to be more expeditious, compact, simple, and economical in handling IPR
infringements than the lengthy trial, complicated, and costly procedures of the civil mechanism. The
above dispute-resolution situation in Vietnam results in a fact that civil relations and civil disputes are
largely resolved under administrative proceedings, resulting in inadequate protection of IPRs and,
more seriously, many violations continuing to reoccur through larger scale and more sophisticated
tricks.
Presentation by Borut Smrdel from Slovenia, at the regional conference organised by SIGMA on Public procurement review bodies, which took place in Ohrid, the former Yugoslav Republic of Macedonia on 9-10 June 2016.
The document discusses the EU Timber Regulation and its implications for importing and exporting timber to the EU. It answers frequently asked questions on several topics:
1. Containers entering the EU must have a valid FLEGT license from countries with a Voluntary Partnership Agreement (VPA). Without one, the timber can be confiscated and importers penalized.
2. All operators placing timber products on the EU market for the first time must exercise due diligence to prevent illegal timber, regardless of source.
3. Importing teak from countries with export bans, like Myanmar, would violate EU law. Other teak may be legal if sourced legally.
4. The EU Timber
The Right to Be Forgotten in European Search ResultsGreg Sterling
The Court of Justice ruled that an internet search engine operator is responsible under EU data protection law for processing personal data found on third party websites. It held that search engines like Google collect, organize and store personal data through their indexing programs, amounting to processing under the law. The operator must ensure its activities comply with requirements to protect individuals' privacy and personal data. The Court also ruled that search engines may be required to remove links to third party web pages containing personal information from search results at an individual's request, if keeping the links would be incompatible with EU law due to the information being inadequate, irrelevant or excessive.
This document summarizes a 2014 ruling by the European Court of Justice establishing an individual's "right to be forgotten". The court ruled that:
1) EU data protection law can apply to companies like Google even if their servers are located outside of Europe, if they have a presence in an EU member state.
2) Search engines are subject to EU data protection rules and individuals have a right to request the removal of inadequate, irrelevant or excessive personal information from search results.
3) This right is not absolute but must be balanced with other rights like freedom of expression. A case-by-case assessment of factors like the information's sensitivity and the public interest is required.
The document also discusses how
Bernatt right to be heard or protection of the confidential informationMichal
This document discusses the potential conflict between two guarantees of procedural fairness in competition law proceedings: the right to be heard and the protection of confidential information such as business secrets.
Under Polish competition law, the president of the competition authority can limit parties' access to evidence if it risks revealing business secrets. However, the law does not clearly balance this with the right to be heard. Polish courts have found that limiting access should only be done to the indispensable extent, with openness as the rule. The EU takes a better approach to balancing these guarantees.
In conformity with Berne Convention, the IP Law of Vietnam also provides, under Article 6.1, that “Copyright shall arise at the moment a work is created and fixed in a certain material form, irrespective of its content, quality, form, mode and language and irrespective of whether or not such work has been published or registered”. The aforesaid legislation means that copyright registration is not a pre-requisite for entitlement of copyright protection and proceeding with legal actions. A work is automatically protected in Vietnam without having to register it with Vietnamese competent authority.
If you're thinking of enforcing against an infringement of your intellectual property rights in Vietnam under administrative proceedings, a thorough understanding of functions, tasks, and capacities of a law enforcement authority in Vietnam will enable you to choose an authority that is competent to handle IPR infringement, to avoid unexpected delays and to maximise the authority’s strength in subsequent enforcement actions.
1. The Inspectorate of Science and Technology
The Inspectorate of Science and Technology include:
(i) the Inspectorate of Ministry of Science and Technology, and
(ii) the Inspectorate of Department of Science and Technology at the provincial level.
Since intellectual property rights (IPRs) constitute a civil right, civil enforcement plays a critical role in
IPR enforcement. However, our analysis of statistics on IPR infringement and enforcement in reports
from enforcement agencies reveals that the vast majority of IPR infringement cases in Vietnam have
been resolved under administrative route over the past time. While thousands of IP infringement
cases are handled administratively each year, only a few cases are tried by courts. The administrative
mechanism is said to be more expeditious, compact, simple, and economical in handling IPR
infringements than the lengthy trial, complicated, and costly procedures of the civil mechanism. The
above dispute-resolution situation in Vietnam results in a fact that civil relations and civil disputes are
largely resolved under administrative proceedings, resulting in inadequate protection of IPRs and,
more seriously, many violations continuing to reoccur through larger scale and more sophisticated
tricks.
Presentation by Borut Smrdel from Slovenia, at the regional conference organised by SIGMA on Public procurement review bodies, which took place in Ohrid, the former Yugoslav Republic of Macedonia on 9-10 June 2016.
The document discusses the EU Timber Regulation and its implications for importing and exporting timber to the EU. It answers frequently asked questions on several topics:
1. Containers entering the EU must have a valid FLEGT license from countries with a Voluntary Partnership Agreement (VPA). Without one, the timber can be confiscated and importers penalized.
2. All operators placing timber products on the EU market for the first time must exercise due diligence to prevent illegal timber, regardless of source.
3. Importing teak from countries with export bans, like Myanmar, would violate EU law. Other teak may be legal if sourced legally.
4. The EU Timber
The Right to Be Forgotten in European Search ResultsGreg Sterling
The Court of Justice ruled that an internet search engine operator is responsible under EU data protection law for processing personal data found on third party websites. It held that search engines like Google collect, organize and store personal data through their indexing programs, amounting to processing under the law. The operator must ensure its activities comply with requirements to protect individuals' privacy and personal data. The Court also ruled that search engines may be required to remove links to third party web pages containing personal information from search results at an individual's request, if keeping the links would be incompatible with EU law due to the information being inadequate, irrelevant or excessive.
This document summarizes a 2014 ruling by the European Court of Justice establishing an individual's "right to be forgotten". The court ruled that:
1) EU data protection law can apply to companies like Google even if their servers are located outside of Europe, if they have a presence in an EU member state.
2) Search engines are subject to EU data protection rules and individuals have a right to request the removal of inadequate, irrelevant or excessive personal information from search results.
3) This right is not absolute but must be balanced with other rights like freedom of expression. A case-by-case assessment of factors like the information's sensitivity and the public interest is required.
The document also discusses how
Bernatt right to be heard or protection of the confidential informationMichal
This document discusses the potential conflict between two guarantees of procedural fairness in competition law proceedings: the right to be heard and the protection of confidential information such as business secrets.
Under Polish competition law, the president of the competition authority can limit parties' access to evidence if it risks revealing business secrets. However, the law does not clearly balance this with the right to be heard. Polish courts have found that limiting access should only be done to the indispensable extent, with openness as the rule. The EU takes a better approach to balancing these guarantees.
This document provides an analysis of access blocking in Europe, specifically analyzing the 2014 CJEU case of UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH. It summarizes the key facts of the case, which involved a copyright infringement on a website and an ISP declining a request to block access. It then analyzes the CJEU decision, which found that ISPs can be considered intermediaries and that outcome prohibition injunctions requiring reasonable blocking measures are compatible with fundamental rights and do not require specific technical measures. Finally, it calls for the establishment of an EU-wide test of proportionality for access blocking measures to balance relevant rights and interests.
Factsheet on the "Right to be Forgotten" rulingSilesia SEM
This document discusses a 2014 European Court of Justice ruling regarding a "right to be forgotten" case involving a Spanish citizen's request to have certain personal information about him removed from search results. The court ruled that:
1) EU data protection law can apply to companies even if their servers are located outside of Europe, as long as they have a presence in an EU country.
2) Search engines are subject to EU data protection rules and individuals have a right to request the removal of inadequate, irrelevant or excessive personal information from search results.
3) This right is not absolute and must be balanced against other rights like freedom of expression; requests will be evaluated on a case-by-case basis.
Leaving the European Safe Harbor... sailing towards algorithmic content regul...LawScienceTech
Talk on 19.3.2019 at the University of Oslo on the EU's push for algorithmic content regulation related to: copyright, all forms of illegal content, and terrorist content.
The slides for my presentation to the Merseyside meeting of the Chartered Institute of Patent Attorneys on 28 Jan 2016. This presentation discusses the Unified Patents Court, the unitary patent, the implementing legislation and the UPC Agreement.
Domain registries are considered intermediaries under the EU legal framework. As intermediaries, they benefit from liability exemptions for unlawful content hosted by third parties on domains they administer. However, recent proposals aim to clarify intermediaries' responsibilities and encourage proactive measures to address unlawful content. The presentation discusses domain registries' role and potential solutions for addressing unlawful content, including through cooperation with rightsholders and effective but proportionate technologies. It notes criticism of some proposals around potential overreach and chilling effects on freedom of expression.
Judgement of the Court - Data retention DirectiveMonica Lupașcu
This document summarizes Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks services. Some key points:
1) The Directive requires providers of publicly available electronic communications services or public communications networks to retain certain data (including traffic and location data) generated by communications for a period of 6 months to 2 years.
2) The data retention is intended to allow law enforcement access to the data for investigations related to serious crime and terrorism.
3) The Directive was intended to harmonize data retention laws across EU member states and ensure an adequate level of data retention to assist law enforcement
Artificial Intelligence isn't just an overly imaginary pipe dream anymore. So what if algorithm starts mining for you after your gone? Or still hear, point is nobody can assume it couldn't.
SOMETHING TO CONSIDER
This document discusses the legal framework and guiding principles around intercepting telephone communications for law enforcement purposes. It notes that intercepting communications must be exceptional, have a legal basis, and respect individuals' right to privacy. Police requests for interception must be justified based on objective data indicating a crime has or will be committed. Executing interceptions requires strict control and oversight to avoid overreach. Recordings may be introduced as evidence in court if properly collected and transcribed. Obtaining identifying information like IMSI and IMEI numbers from mobile operators is allowed without judicial authorization as a traffic data issue.
The document summarizes a European Court of Justice case regarding the limitations of using evidence obtained without consent in administrative tax proceedings. Specifically:
1) The case involved Hungarian tax authorities intercepting communications and seizing emails as part of a criminal investigation, then using that evidence against a company in a tax adjustment administrative proceeding without the company's knowledge.
2) The ECJ ruled that EU law does not prevent the use of such evidence in administrative proceedings if it was legally obtained in the criminal case and the rights of the defense are respected, including giving the taxable person access to the evidence and an opportunity to be heard on it.
3) However, the evidence must be disregarded if the court finds the
European Treaty Series - No. 185Convention on Cybercrime.docxSANSKAR20
European Treaty Series - No. 185
Convention on Cybercrime
Budapest, 23.XI.2001
Preamble
The member States of the Council of Europe and the other States signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its
members;
Recognising the value of fostering co-operation with the other States parties to this
Convention;
Convinced of the need to pursue, as a matter of priority, a common criminal policy aimed at
the protection of society against cybercrime, inter alia, by adopting appropriate legislation and
fostering international co-operation;
Conscious of the profound changes brought about by the digitalisation, convergence and
continuing globalisation of computer networks;
Concerned by the risk that computer networks and electronic information may also be used
for committing criminal offences and that evidence relating to such offences may be stored
and transferred by these networks;
Recognising the need for co-operation between States and private industry in combating
cybercrime and the need to protect legitimate interests in the use and development of
information technologies;
Believing that an effective fight against cybercrime requires increased, rapid and well-
functioning international co-operation in criminal matters;
Convinced that the present Convention is necessary to deter action directed against the
confidentiality, integrity and availability of computer systems, networks and computer data as
well as the misuse of such systems, networks and data by providing for the criminalisation of
such conduct, as described in this Convention, and the adoption of powers sufficient for
effectively combating such criminal offences, by facilitating their detection, investigation and
prosecution at both the domestic and international levels and by providing arrangements for
fast and reliable international co-operation;
ETS 185 – Cybercrime (Convention), 23.XI.2001
__________________________________________________________________________________
2
Mindful of the need to ensure a proper balance between the interests of law enforcement and
respect for fundamental human rights as enshrined in the 1950 Council of Europe Convention
for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations
International Covenant on Civil and Political Rights and other applicable international human
rights treaties, which reaffirm the right of everyone to hold opinions without interference, as
well as the right to freedom of expression, including the freedom to seek, receive, and impart
information and ideas of all kinds, regardless of frontiers, and the rights concerning the
respect for privacy;
Mindful also of the right to the protection of personal data, as conferred, for example, by the
1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data;
Considering the 1989 United Nations Convent ...
The European Court of Human Rights ruled on a case involving two Finnish companies that published taxation data of over 1.2 million people. The court found that while journalists have broad freedom of expression, personal data can be withheld if publishing it would breach individuals' right to privacy. Though taxation data is publicly available under Finnish law, publishing it on such a large scale was deemed processing personal data without authorization. The court determined the interference with the companies' expression rights was necessary to protect taxpayers' privacy rights, and that they could continue publishing taxation data to a lesser extent. However, the court also found that the lengthy domestic legal proceedings in Finland violated the companies' right to a fair trial.
1) The Court of Justice invalidated the European Commission's "Safe Harbour Decision" which found that the United States ensured adequate protection of EU citizens' personal data transferred there.
2) While the Commission alone can invalidate an EU act, national supervisory authorities can examine whether data transfers comply with EU law and refer questions to national courts to request a preliminary ruling on a decision's validity.
3) The Court found that the Safe Harbour scheme did not ensure a level of protection essentially equivalent to that guaranteed in the EU because US public authorities could access personal data in a disproportionate manner without effective legal protection for EU citizens.
Opinion of Advocate General Szpunar (ince, C-336/14)Martin Arendts
The document is an opinion from an Advocate General in a case referred from a German court regarding criminal charges against Ms Ince for operating a betting machine without authorization under German law. The opinion discusses the relevant EU and German legal framework regarding games of chance and betting. It examines Germany's public monopoly on sports betting and the need to balance that with EU law on the freedom to provide services. The AG seeks to provide guidance to the referring court on how to interpret the applicable laws in line with EU law principles.
The document discusses several topics related to intellectual property rights (IPR) regulation and legislation around the world, including:
1) An overview of IPR frameworks and debates around copyright protection on the internet in the EU, UK, France and Sweden.
2) Details of "three-strikes" copyright infringement laws implemented in France and proposals in the UK.
3) Controversies around restrictive IPR laws limiting access to knowledge and debates around their effectiveness in changing social attitudes towards piracy.
Presentation delivered at the EUI in Florence during the FSR C&M, CMPF and FCP Annual Scientific Seminar on 'Competition, Regulation and Pluralism in the Online World' (22-23 March 2018).
Recent European Litigation on the Legality of Internet Filtering for Copyrigh...Darius Whelan
Darius Whelan
University College Cork
Global Congress on Intellectual Property and the Public Interest
American University Washington College of Law
Washington, DC, August 2011
The E-Privacy Directive and Performance MarketingAndrew Tibber
The document discusses the e-Privacy Directive and its requirements regarding cookies and consent for data processing. It provides an overview of the legal framework under the Directive and its implementation in the UK. Key points include the requirements for clear information and consent prior to storing cookies or accessing information on a user's device. Enforcement of these rules is expected to increase, with a 12-month grace period for companies to update their practices.
E-privacy Directive and Performance Marketing - Andrew Tibberauexpo Conference
The document discusses the e-Privacy Directive and its requirements regarding cookies and consent. It provides an overview of the legal framework, including the requirements for clear information and consent prior to storing cookies. It discusses debates around what constitutes informed consent and different models for obtaining consent. It also outlines guidance from the UK regulator on compliance and actions organizations can take to meet the consent requirements.
The Proposed Trade Marks (1st Amendment) Rules, 2024BananaIP Counsels
Deadline for Public Comments on New Trade Mark Draft Rules 2024 Ends Today, February 9th, 2024
The Ministry of Commerce and Industry, through its Department for Promotion of Industry and Internal Trade, issued a notification on January 2nd, 2024, regarding the draft rules to amend the Trade Marks Rules, 2017. Published in the Gazette of India, this notification invites public feedback and suggestions on the proposed changes.
Read more: https://www.bananaip.com/ip-news-center/trade-marks-1st-amendment-rules-2024-comments-deadline/
Generative AI (GenAI), Business and Intellectual PropertyBananaIP Counsels
The extent of protectability and enforceability of inventions and creations of Generative (Gen) AI is today the subject of discussions and debates among professional and academic circles. While Courts in some countries have decided on protectability of Gen AI, and the role of human intervention required for such protection, several questions remain unanswered. The enforceability of Gen AI also raises several questions at various levels. Read more - https://www.bananaip.com/ip-news-center/generative-ai-genai-business-and-intellectual-property/
If you have any questions, speak with an IP expert/attorney – contact@bananaip.com or 91-80-26860414/24/34.
More Related Content
Similar to UPC Telekabel Wien GmBH v Constantain Film Verleih Gmbh
This document provides an analysis of access blocking in Europe, specifically analyzing the 2014 CJEU case of UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH. It summarizes the key facts of the case, which involved a copyright infringement on a website and an ISP declining a request to block access. It then analyzes the CJEU decision, which found that ISPs can be considered intermediaries and that outcome prohibition injunctions requiring reasonable blocking measures are compatible with fundamental rights and do not require specific technical measures. Finally, it calls for the establishment of an EU-wide test of proportionality for access blocking measures to balance relevant rights and interests.
Factsheet on the "Right to be Forgotten" rulingSilesia SEM
This document discusses a 2014 European Court of Justice ruling regarding a "right to be forgotten" case involving a Spanish citizen's request to have certain personal information about him removed from search results. The court ruled that:
1) EU data protection law can apply to companies even if their servers are located outside of Europe, as long as they have a presence in an EU country.
2) Search engines are subject to EU data protection rules and individuals have a right to request the removal of inadequate, irrelevant or excessive personal information from search results.
3) This right is not absolute and must be balanced against other rights like freedom of expression; requests will be evaluated on a case-by-case basis.
Leaving the European Safe Harbor... sailing towards algorithmic content regul...LawScienceTech
Talk on 19.3.2019 at the University of Oslo on the EU's push for algorithmic content regulation related to: copyright, all forms of illegal content, and terrorist content.
The slides for my presentation to the Merseyside meeting of the Chartered Institute of Patent Attorneys on 28 Jan 2016. This presentation discusses the Unified Patents Court, the unitary patent, the implementing legislation and the UPC Agreement.
Domain registries are considered intermediaries under the EU legal framework. As intermediaries, they benefit from liability exemptions for unlawful content hosted by third parties on domains they administer. However, recent proposals aim to clarify intermediaries' responsibilities and encourage proactive measures to address unlawful content. The presentation discusses domain registries' role and potential solutions for addressing unlawful content, including through cooperation with rightsholders and effective but proportionate technologies. It notes criticism of some proposals around potential overreach and chilling effects on freedom of expression.
Judgement of the Court - Data retention DirectiveMonica Lupașcu
This document summarizes Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks services. Some key points:
1) The Directive requires providers of publicly available electronic communications services or public communications networks to retain certain data (including traffic and location data) generated by communications for a period of 6 months to 2 years.
2) The data retention is intended to allow law enforcement access to the data for investigations related to serious crime and terrorism.
3) The Directive was intended to harmonize data retention laws across EU member states and ensure an adequate level of data retention to assist law enforcement
Artificial Intelligence isn't just an overly imaginary pipe dream anymore. So what if algorithm starts mining for you after your gone? Or still hear, point is nobody can assume it couldn't.
SOMETHING TO CONSIDER
This document discusses the legal framework and guiding principles around intercepting telephone communications for law enforcement purposes. It notes that intercepting communications must be exceptional, have a legal basis, and respect individuals' right to privacy. Police requests for interception must be justified based on objective data indicating a crime has or will be committed. Executing interceptions requires strict control and oversight to avoid overreach. Recordings may be introduced as evidence in court if properly collected and transcribed. Obtaining identifying information like IMSI and IMEI numbers from mobile operators is allowed without judicial authorization as a traffic data issue.
The document summarizes a European Court of Justice case regarding the limitations of using evidence obtained without consent in administrative tax proceedings. Specifically:
1) The case involved Hungarian tax authorities intercepting communications and seizing emails as part of a criminal investigation, then using that evidence against a company in a tax adjustment administrative proceeding without the company's knowledge.
2) The ECJ ruled that EU law does not prevent the use of such evidence in administrative proceedings if it was legally obtained in the criminal case and the rights of the defense are respected, including giving the taxable person access to the evidence and an opportunity to be heard on it.
3) However, the evidence must be disregarded if the court finds the
European Treaty Series - No. 185Convention on Cybercrime.docxSANSKAR20
European Treaty Series - No. 185
Convention on Cybercrime
Budapest, 23.XI.2001
Preamble
The member States of the Council of Europe and the other States signatory hereto,
Considering that the aim of the Council of Europe is to achieve a greater unity between its
members;
Recognising the value of fostering co-operation with the other States parties to this
Convention;
Convinced of the need to pursue, as a matter of priority, a common criminal policy aimed at
the protection of society against cybercrime, inter alia, by adopting appropriate legislation and
fostering international co-operation;
Conscious of the profound changes brought about by the digitalisation, convergence and
continuing globalisation of computer networks;
Concerned by the risk that computer networks and electronic information may also be used
for committing criminal offences and that evidence relating to such offences may be stored
and transferred by these networks;
Recognising the need for co-operation between States and private industry in combating
cybercrime and the need to protect legitimate interests in the use and development of
information technologies;
Believing that an effective fight against cybercrime requires increased, rapid and well-
functioning international co-operation in criminal matters;
Convinced that the present Convention is necessary to deter action directed against the
confidentiality, integrity and availability of computer systems, networks and computer data as
well as the misuse of such systems, networks and data by providing for the criminalisation of
such conduct, as described in this Convention, and the adoption of powers sufficient for
effectively combating such criminal offences, by facilitating their detection, investigation and
prosecution at both the domestic and international levels and by providing arrangements for
fast and reliable international co-operation;
ETS 185 – Cybercrime (Convention), 23.XI.2001
__________________________________________________________________________________
2
Mindful of the need to ensure a proper balance between the interests of law enforcement and
respect for fundamental human rights as enshrined in the 1950 Council of Europe Convention
for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations
International Covenant on Civil and Political Rights and other applicable international human
rights treaties, which reaffirm the right of everyone to hold opinions without interference, as
well as the right to freedom of expression, including the freedom to seek, receive, and impart
information and ideas of all kinds, regardless of frontiers, and the rights concerning the
respect for privacy;
Mindful also of the right to the protection of personal data, as conferred, for example, by the
1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic
Processing of Personal Data;
Considering the 1989 United Nations Convent ...
The European Court of Human Rights ruled on a case involving two Finnish companies that published taxation data of over 1.2 million people. The court found that while journalists have broad freedom of expression, personal data can be withheld if publishing it would breach individuals' right to privacy. Though taxation data is publicly available under Finnish law, publishing it on such a large scale was deemed processing personal data without authorization. The court determined the interference with the companies' expression rights was necessary to protect taxpayers' privacy rights, and that they could continue publishing taxation data to a lesser extent. However, the court also found that the lengthy domestic legal proceedings in Finland violated the companies' right to a fair trial.
1) The Court of Justice invalidated the European Commission's "Safe Harbour Decision" which found that the United States ensured adequate protection of EU citizens' personal data transferred there.
2) While the Commission alone can invalidate an EU act, national supervisory authorities can examine whether data transfers comply with EU law and refer questions to national courts to request a preliminary ruling on a decision's validity.
3) The Court found that the Safe Harbour scheme did not ensure a level of protection essentially equivalent to that guaranteed in the EU because US public authorities could access personal data in a disproportionate manner without effective legal protection for EU citizens.
Opinion of Advocate General Szpunar (ince, C-336/14)Martin Arendts
The document is an opinion from an Advocate General in a case referred from a German court regarding criminal charges against Ms Ince for operating a betting machine without authorization under German law. The opinion discusses the relevant EU and German legal framework regarding games of chance and betting. It examines Germany's public monopoly on sports betting and the need to balance that with EU law on the freedom to provide services. The AG seeks to provide guidance to the referring court on how to interpret the applicable laws in line with EU law principles.
The document discusses several topics related to intellectual property rights (IPR) regulation and legislation around the world, including:
1) An overview of IPR frameworks and debates around copyright protection on the internet in the EU, UK, France and Sweden.
2) Details of "three-strikes" copyright infringement laws implemented in France and proposals in the UK.
3) Controversies around restrictive IPR laws limiting access to knowledge and debates around their effectiveness in changing social attitudes towards piracy.
Presentation delivered at the EUI in Florence during the FSR C&M, CMPF and FCP Annual Scientific Seminar on 'Competition, Regulation and Pluralism in the Online World' (22-23 March 2018).
Recent European Litigation on the Legality of Internet Filtering for Copyrigh...Darius Whelan
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University College Cork
Global Congress on Intellectual Property and the Public Interest
American University Washington College of Law
Washington, DC, August 2011
The E-Privacy Directive and Performance MarketingAndrew Tibber
The document discusses the e-Privacy Directive and its requirements regarding cookies and consent for data processing. It provides an overview of the legal framework under the Directive and its implementation in the UK. Key points include the requirements for clear information and consent prior to storing cookies or accessing information on a user's device. Enforcement of these rules is expected to increase, with a 12-month grace period for companies to update their practices.
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The document discusses the e-Privacy Directive and its requirements regarding cookies and consent. It provides an overview of the legal framework, including the requirements for clear information and consent prior to storing cookies. It discusses debates around what constitutes informed consent and different models for obtaining consent. It also outlines guidance from the UK regulator on compliance and actions organizations can take to meet the consent requirements.
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Deadline for Public Comments on New Trade Mark Draft Rules 2024 Ends Today, February 9th, 2024
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If you have any questions, speak with an IP expert/attorney – contact@bananaip.com or 91-80-26860414/24/34.
Guidelines on Film Accessibility in India: Comments and SuggestionsBananaIP Counsels
On 8th January 2024, the Ministry of Information and Broadcasting (MoIB) published a draft of the Guidelines of Accessibility Standards in the Public Exhibition of Feature Films in Cinema Theatres for Persons with hearing and visual impairments (hereinafter “Guidelines”). These Guidelines are expected to be applicable for those feature films that are certified by the Central Board of Film Certification (CBFC) for public exhibition in cinema halls/movie theatres for commercial purposes. The Guidelines were made available for public scrutiny on 8th January 2024, seeking comments and suggestions by 31st January 2024. In response, the accessibility law attorney team at BananaIP Counsels (“BananaIP”) is hereby submitting comments and suggestions for the MoIB’s consideration. The comments and suggestions submitted herein are based on our ground-level experience of facilitating and implementing accessibility standards and are being submitted with the bonafide intent of enabling the MoIB to improve the guidelines based on implementation level feedback.
The views expressed in the submissions are those of the authors and do not reflect the views of BananaIP, other attorneys in the firm, or its clients.
Indian Design Statistics for 2023 By BananaIP CounselsBananaIP Counsels
The Indian Design Statistics Report for the year 2023 has been prepared by BananaIP Counsels as a part of its knowledge dissemination initiatives. The report is based on the information and data available on the Indian Intellectual Property (IP) Office website and databases and is accurate to the extent of data publication, availability, and searchability.
For the latest IP news updates visit: www.bananaip.com
Email: contact@bananaip.com
Indian Patent Statistics for 2023 by BananaIP CounselsBananaIP Counsels
BananaIP is pleased to release the 2023 Patent Statistics Report. This document offers a comprehensive overview of patent activities in India, including publications, examinations, grants, and refusals. It compares data from 2019 to 2023 and includes city-wise patent statistics and performance metrics of various patent offices.
The Draft Indian Patent Rules 2024 has been released for public review. This document primarily addresses the adjudication process for penalties in patent-related matters. It introduces specific roles such as 'Adjudicating Officer' and 'Appellate Authority', clarifying their functions in the patent adjudication process. The draft also details procedures for filing and appealing complaints in cases of patent contraventions.
These updates are part of an ongoing effort to enhance the clarity and efficiency of the patent process in India. Stakeholders are encouraged to submit their feedback by February 1st, 2024.
If you have any questions, speak with a Patent expert/attorney – contact@bananaip.com or 91-80-26860414/24/34.
Patent Examination and Pre-Grant Opposition are independent processes, says t...BananaIP Counsels
In an appeal filed by Novartis from the decision of a Single Judge, the Division Bench of the Delhi High Court considered if a pre-grant opponent would have the right to participate and get a hearing with respect to amendments made by the patent applicant based on directions of the Controller of Patents. The pre-grant oppositions in the case were filed by NATCO and several others, and the Single Judge held that pre-grant opponents have to be heard with respect to all amendments as the patent examination and pre-grant opposition processes merge once a representation is accepted by the Controller. Disagreeing with the Single Judge, the Division Bench held that patent examination and pre-grant opposition are independent and separate processes.
If you have any questions, speak with a Patent expert/attorney – contact@bananaip.com or 91-80-26860414/24/34.
In the case of Huhtamaki Oyj And Anr Vs Controller Of Patents at the Delhi High Court, a significant development has transpired. The focus was on a Polymer Technology patent application titled “An Essentially Biobased Thermoformable Composition And Containers Formed Thereof”.
The application had encountered objections concerning its inventive step and non-patentability. The Court highlighted the need for a thorough examination in the decision-making process.
After detailed reconsideration, it's confirmed that the patent was granted on 26th July 2023. This case emphasizes the critical role of comprehensive examination in the patent granting process and the resilience necessary from applicants.
#BananaIP #PatentLaw #DelhiHighCourt #InnovationProtection #PolymerTechnology #PatentGranted #IntellectualProperty
IP For Business - Presentation by Dr. Kalyan at IIM - Bangalore (2023 Class o...BananaIP Counsels
On August 3rd, 2023, Dr. Kalyan from BananaIP shared insights on 'IP for Business' with the 2023 EPGP class at IIMB. As we continue our journey, we appreciate your interest and engagement with our ongoing efforts.
www.bananaip.com
#BananaIP #DrKalyan #IPforBusiness #IIMBangalore #EPGP2023 #IntellectualProperty #IPInsights #BusinessStrategy #EducationInitiative #KnowledgeSharing
This document discusses accessibility and disability rights. It notes the right to accessibility in physical environments, transportation, and information and communication technologies. It provides examples of lack of accessibility in restaurants, hotels, and public transportation. Specifically, it finds that few restaurants and hotels have accessibility features like ramps or accessible menus and restrooms. For transportation, it discusses draft accessibility guidelines for roads, railways, and air travel. It also discusses accessibility standards for digital screens and apps. The document presents a hypothetical scenario of residents in an apartment complex requesting accessibility improvements and the divided views of the owner's association board in response.
Use of Music in Marriage ceremonies – Prof. Arul Scaria’s report to The Delhi...BananaIP Counsels
This document contains the submissions of an expert appointed by the Delhi High Court to provide an analysis of Section 52(1)(za) of the Indian Copyright Act, which provides an exception for use of copyrighted sound recordings at marriage ceremonies and related social events.
The expert summarizes that international treaties provide flexibility for countries to determine exceptions based on local needs, and Section 52(1)(za) falls within the scope of permitted exceptions. The expert argues for a broad reading of the section in light of the importance of marriage in Indian society and the need to limit overreach of copyright owners' rights in this context. The expert also notes that without facilitators, most users would not be able to exercise their rights under this
Indian Intellectual Property Cases Report, 2021.pdfBananaIP Counsels
BananaIP is happy to launch the IP Cases Report for the year 2021. This report covers cases related to intellectual property decided by Courts in India, in the form of case notes. These case notes cover important decisions on critical questions of law and fact with respect to various species of intellectual property.
INDIAN INTELLECTUAL PROPERTY STATISTICS REPORT, 2021BananaIP Counsels
BananaIP is happy to launch the IP statistics report for the year 2021. This report covers Patent, Trademark, Design, Copyright and Geographical Indication (GI) statistics based on information available on the website of the Indian IP Office. Wherever relevant, a comparative review with previous years has been presented in the report.
Findings and Conclusions
At a general level, intellectual property activity before the IP Office increased notably in 2021 compared to the previous year. While Patent, Copyright, Trademark, and GI filings saw an increase in numbers, the number of Design filings dropped during the year.
The conclusion of the report reads as follows:
"To conclude, we observed an overall increase in the IP Statistics in 2021. In the year 2021 number of patents published increased by 2%, the number of trademarks filed increased by 13.78%, the number of copyrights filed increased by 29.71% and the number of geographical indications filed increased by 49.01%. We also observed that the number of patents granted increased by 15.66%, trademarks registered increased by 33.96%, and geographical indications registered increased by 560% in 2021. However, the number of designs registered decreased by 17.54%."
Statistics as Indicators
Intellectual Property statistics have since long been used as indicators of intellectual activity, and the findings of this report signify an increase in innovative and creative activity in India despite the pandemic. The numbers also indicate the importance being given to IP protection in the Indian market by both Indian and foreign organisations.
Talking about the report, Dr. Kalyan C. Kankanala stated, "IP filings in India have been steadily increasing since 2014, and the increase in 2021 is not surprising. What is interesting is the fact that patent, trademark, and other IP filings increased despite the negative consequences of COVID-19.
The increase in numbers is in sync with increased enforcement, licensing, and litigation.
Over the last decade, we have seen a significant transformation in the IP ecosystem in India, and I can today state with confidence that we are no longer a nation that views IP with circumspection."
Attribution
The report was the result of contributions from consulting/strategy, patent, copyright, and trademark departments of BananaIP Counsels.
This document presents intellectual property statistics for India for the years 2019-2021. It summarizes that in 2021:
- Patent applications published and patents granted both increased by around 2% compared to 2020.
- Design registrations decreased by 17.54% from 2020.
- Trademark applications filed and registered increased by 13.78% and 33.96% respectively from 2020.
- Copyright filings increased by 29.71% from 2020.
- Geographical indication applications filed increased by 560% and registrations by 50% from 2020.
Prof. AB develops a product called "STUNOOPER", a pen capable of assessing student participation in class based on facial expressions, gestures, etc. and providing proposed grades. He tests it from 2019-2021, when he finalizes the design and uses it to grade students. Prof. AB writes the integrating code himself while using open source algorithms and libraries, and keeps his expanding training data secret. It is unclear if this is a good idea or product.
Dr. Kalyan Kankanala, Senior Partner, BananaIP Counsels, delivered a class on {inset Slide title}, for National Law School of India University, Bangalore.
Dr. Kalyan Kankanala, Senior Partner, BananaIP Counsels, delivered a class on {inset Slide title}, for National Law School of India University, Bangalore.
Dr. Kalyan Kankanala, Senior Partner, BananaIP Counsels, delivered a class on {inset Slide title}, for National Law School of India University, Bangalore.
Dr. Kalyan Kankanala, Senior Partner, BananaIP Counsels, delivered a class on {inset Slide title}, for National Law School of India University, Bangalore.
Dr. Kalyan Kankanala, Senior Partner, BananaIP Counsels, delivered a class on {inset Slide title}, for National Law School of India University, Bangalore.
Synopsis On Annual General Meeting/Extra Ordinary General Meeting With Ordinary And Special Businesses And Ordinary And Special Resolutions with Companies (Postal Ballot) Regulations, 2018
Receivership and liquidation Accounts
Being a Paper Presented at Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) on Friday, August 18, 2023.
Guide on the use of Artificial Intelligence-based tools by lawyers and law fi...Massimo Talia
This guide aims to provide information on how lawyers will be able to use the opportunities provided by AI tools and how such tools could help the business processes of small firms. Its objective is to provide lawyers with some background to understand what they can and cannot realistically expect from these products. This guide aims to give a reference point for small law practices in the EU
against which they can evaluate those classes of AI applications that are probably the most relevant for them.
This document briefly explains the June compliance calendar 2024 with income tax returns, PF, ESI, and important due dates, forms to be filled out, periods, and who should file them?.
सुप्रीम कोर्ट ने यह भी माना था कि मजिस्ट्रेट का यह कर्तव्य है कि वह सुनिश्चित करे कि अधिकारी पीएमएलए के तहत निर्धारित प्रक्रिया के साथ-साथ संवैधानिक सुरक्षा उपायों का भी उचित रूप से पालन करें।
Business law for the students of undergraduate level. The presentation contains the summary of all the chapters under the syllabus of State University, Contract Act, Sale of Goods Act, Negotiable Instrument Act, Partnership Act, Limited Liability Act, Consumer Protection Act.
Lifting the Corporate Veil. Power Point Presentationseri bangash
"Lifting the Corporate Veil" is a legal concept that refers to the judicial act of disregarding the separate legal personality of a corporation or limited liability company (LLC). Normally, a corporation is considered a legal entity separate from its shareholders or members, meaning that the personal assets of shareholders or members are protected from the liabilities of the corporation. However, there are certain situations where courts may decide to "pierce" or "lift" the corporate veil, holding shareholders or members personally liable for the debts or actions of the corporation.
Here are some common scenarios in which courts might lift the corporate veil:
Fraud or Illegality: If shareholders or members use the corporate structure to perpetrate fraud, evade legal obligations, or engage in illegal activities, courts may disregard the corporate entity and hold those individuals personally liable.
Undercapitalization: If a corporation is formed with insufficient capital to conduct its intended business and meet its foreseeable liabilities, and this lack of capitalization results in harm to creditors or other parties, courts may lift the corporate veil to hold shareholders or members liable.
Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
Group Enterprises: In some cases, where multiple corporations are closely related or form part of a single economic unit, courts may pierce the corporate veil to achieve equity, particularly if one corporation's actions harm creditors or other stakeholders and the corporate structure is being used to shield culpable parties from liability.
Matthew Professional CV experienced Government LiaisonMattGardner52
As an experienced Government Liaison, I have demonstrated expertise in Corporate Governance. My skill set includes senior-level management in Contract Management, Legal Support, and Diplomatic Relations. I have also gained proficiency as a Corporate Liaison, utilizing my strong background in accounting, finance, and legal, with a Bachelor's degree (B.A.) from California State University. My Administrative Skills further strengthen my ability to contribute to the growth and success of any organization.
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...Sangyun Lee
Presentation slides for a session held on June 4, 2024, at Kyoto University. This presentation is based on the presenter’s recent paper, coauthored with Hwang Lee, Professor, Korea University, with the same title, published in the Journal of Business Administration & Law, Volume 34, No. 2 (April 2024). The paper, written in Korean, is available at <https://shorturl.at/GCWcI>.
Genocide in International Criminal Law.pptxMasoudZamani13
Excited to share insights from my recent presentation on genocide! 💡 In light of ongoing debates, it's crucial to delve into the nuances of this grave crime.
The Future of Criminal Defense Lawyer in India.pdfveteranlegal
https://veteranlegal.in/defense-lawyer-in-india/ | Criminal defense Lawyer in India has always been a vital aspect of the country's legal system. As defenders of justice, criminal Defense Lawyer play a critical role in ensuring that individuals accused of crimes receive a fair trial and that their constitutional rights are protected. As India evolves socially, economically, and technologically, the role and future of criminal Defense Lawyer are also undergoing significant changes. This comprehensive blog explores the current landscape, challenges, technological advancements, and prospects for criminal Defense Lawyer in India.
San Remo Manual on International Law Applicable to Armed Conflict at Sea
UPC Telekabel Wien GmBH v Constantain Film Verleih Gmbh
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JUDGMENT OF THE COURT (Fourth Chamber)
27 March 2014 (*)
(Request for a preliminary ruling — Approximation of laws — Copyright and related rights —
Information society — Directive 2001/29/EC — Website making cinematographic works available to
the public without the consent of the holders of a right related to copyright — Article 8(3) — Concept
of ‘intermediaries whose services are used by a third party to infringe a copyright or related right’ —
Internet service provider — Order addressed to an internet service provider prohibiting it from giving
its customers access to a website — Balancing of fundamental rights)
In Case C‑314/12,
REQUEST for a preliminary ruling under Article 267 TFEU from the Oberster Gerichtshof (Austria),
made by decision of 11 May 2012, received at the Court on 29 June 2012, in the proceedings
UPC Telekabel Wien GmbH
v
Constantin Film Verleih GmbH,
Wega Filmproduktionsgesellschaft mbH,
THE COURT (Fourth Chamber),
composed of L. Bay Larsen, President of the Chamber, K. Lenaerts, Vice-President of the Court,
acting as a judge of the Fourth Chamber, M. Safjan, J. Malenovský (Rapporteur) and A. Prechal,
Judges,
Advocate General: P. Cruz Villalón,
Registrar: A. Impellizzeri, Administrator,
having regard to the written procedure and further to the hearing on 20 June 2013,
after considering the observations submitted on behalf of:
– UPC Telekabel Wien GmbH, by M. Bulgarini and T. Höhne, Rechtsanwälte,
– Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH, by A. Manak and
N. Kraft, Rechtsanwälte,
– the Austrian Government, by A. Posch, acting as Agent,
– the Italian Government, by G. Palmieri, acting as Agent, assisted by W. Ferrante, avvocato dello
Stato,
– the Netherlands Government, by C. Schillemans and C. Wissels, acting as Agents,
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– the United Kingdom Government, by L. Christie, acting as Agent, assisted by S. Malynicz,
barrister,
– the European Commission, by J. Samnadda and F.W. Bulst, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 26 November 2013,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 5(1) and (2)(b) and
Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001
on the harmonisation of certain aspects of copyright and related rights in the information society (OJ
2001 L 167, p. 10), and of certain fundamental rights enshrined in EU law.
2 The request has been made in proceedings between (i) UPC Telekabel Wien GmbH (‘UPC
Telekabel’) and (ii) Constantin Film Verleih GmbH (‘Constantin Film’) and Wega
Filmproduktionsgesellschaft mbH (‘Wega’) concerning an application for UPC Telekabel to be
ordered to block the access of its customers to a website making available to the public some of the
films of Constantin Film and of Wega without their consent.
Legal context
EU law
3 Recitals 9 and 59 in the preamble to Directive 2001/29 state:
‘(9) Any harmonisation of copyright and related rights must take as a basis a high level of
protection, since such rights are crucial to intellectual creation. … Intellectual property has
therefore been recognised as an integral part of property.
…
(59) In the digital environment, in particular, the services of intermediaries may increasingly be used by
third parties for infringing activities. In many cases such intermediaries are best placed to bring
such infringing activities to an end. Therefore, without prejudice to any other sanctions and
remedies available, rightholders should have the possibility of applying for an injunction against an
intermediary who carries a third party’s infringement of a protected work or other subject-matter
in a network. … The conditions and modalities relating to such injunctions should be left to the
national law of the Member States.’
4 Article 1 of that directive, headed ‘Scope’, provides in paragraph 1:
‘This Directive concerns the legal protection of copyright and related rights in the framework of the
internal market, with particular emphasis on the information society.’
5 Article 3 of the same directive, headed ‘Right of communication to the public of works and right of
making available to the public other subject-matter’, provides in paragraph 2:
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‘Member States shall provide for the exclusive right to authorise or prohibit the making available to the
public, by wire or wireless means, in such a way that members of the public may access them from a
place and at a time individually chosen by them:
…
(c) for the producers of the first fixations of films, of the original and copies of their films;
…’
6 Article 8 of Directive 2001/29, headed ‘Sanctions and remedies’, states in paragraph 3:
‘Member States shall ensure that rightholders are in a position to apply for an injunction against
intermediaries whose services are used by a third party to infringe a copyright or related right.’
Austrian law
7 Paragraph 18a(1) of the Law on copyright (Urheberrechtsgesetz) of 9 April 1936 (BGBl. 111/1936),
as amended by the new law of 2003 on copyright (Urheberrechtsgesetz-Novelle 2003, BGBl. I,
32/2003, ‘the UrhG’), reads:
‘The author has the exclusive right to make the work available to the public, by wire or wireless means,
in such a way which allows members of the public to access it from a place and at a time chosen by
them.’
8 Paragraph 81(1) and (1a) of the UrhG state:
‘(1) A person who has suffered an infringement of any exclusive rights conferred by this Law, or who
fears such an infringement, shall be entitled to bring proceedings for a restraining injunction. Legal
proceedings may also be brought against the proprietor of a business if the infringement is committed in
the course of the activities of his business by one of his employees or by a person acting under his
control, or if there is a danger that such an infringement will be committed; Paragraph 81(1a) shall
apply mutatis mutandis.
(1a) If the person who has committed such an infringement, or by whom there is a danger of such
an infringement being committed, uses the services of an intermediary for that purpose, the intermediary
shall also be liable to an injunction under subparagraph (1). …’.
9 Paragraph 355(1) of the Code of Enforcement (Executionsordnung) states:
‘Enforcement against the person obligated to desist from an activity or to tolerate the carrying out of an
activity shall take place, at the time of consent to enforcement, by the imposition by the enforcement
court, upon application, of a fine for any non-compliance after the obligation became executory. In the
event of further non-compliance, the enforcement court shall, upon application, impose a further fine or
a period of imprisonment of up to one year in total. …’.
10 It is apparent from the explanations given by the referring court in its request for a preliminary ruling
that, at the stage of the enforcement procedure, the addressee of the prohibition can argue, in order to
avoid liability, that he has taken all of the measures that could be expected of him in order to prevent
the result prohibited.
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The dispute in the main proceedings and the questions referred for a preliminary ruling
11 Having established that a website was offering, without their agreement, either a download or
‘streaming’ of some of the films which they had produced, Constantin Film and Wega, two film
production companies, referred the matter to the court responsible for hearing applications for interim
measures with a view to obtaining, on the basis of Article 81(1a) of the UrhG, an order enjoining UPC
Telekabel, an internet service provider, to block the access of its customers to the website at issue,
inasmuch as that site makes available to the public, without their consent, cinematographic works over
which they hold a right related to copyright.
12 By order of 13 May 2011, the Handelsgericht Wien (Commercial Court, Vienna) (Austria) prohibited
UPC Telekabel from providing its customers with access to the website at issue; that prohibition was to
be carried out in particular by blocking that site’s domain name and current IP (‘Internet Protocol’)
address and any other IP address of that site of which UPC Telekabel might be aware.
13 In June 2011, the website at issue ceased its activity following an action of the German police forces
against its operators.
14 By order of 27 October 2011, the Oberlandesgericht Wien (Higher Regional Court, Vienna)
(Austria), as an appeal court, partially reversed the order of the court of first instance in so far as it had
wrongly specified the means that UPC Telekabel had to introduce in order to block the website at
issue and thus execute the injunction. In order to reach that conclusion, the Oberlandesgericht Wien
first of all held that Article 81(1a) of the UrhG must be interpreted in the light of Article 8(3) of
Directive 2001/29. It then held that, by giving its customers access to content illegally placed online,
UPC Telekabel had to be regarded as an intermediary whose services were used to infringe a right
related to copyright, with the result that Constantin Film and Wega were entitled to request that an
injunction be issued against UPC Telekabel. However, as regards the protection of copyright, the
Oberlandesgericht Wien held that UPC Telekabel could only be required, in the form of an obligation
to achieve a particular result, to forbid its customers access to the website at issue, but that it had to
remain free to decide the means to be used.
15 UPC Telekabel appealed on a point of law to the Oberster Gerichtshof (Supreme Court) (Austria).
16 In support of its appeal, UPC Telekabel submits inter alia that its services could not be considered to
be used to infringe a copyright or related right within the meaning of Article 8(3) of Directive 2001/29
because it did not have any business relationship with the operators of the website at issue and it was
not established that its own customers acted unlawfully. In any event, UPC Telekabel claims that the
various blocking measures which may be introduced can all be technically circumvented and that some
of them are excessively costly.
17 In those circumstances, the Oberster Gerichtshof decided to stay the proceedings and to refer the
following questions to the Court of Justice for a preliminary ruling:
‘1. Is Article 8(3) of Directive 2001/29 … to be interpreted as meaning that a person who makes
protected subject-matter available on the internet without the rightholder’s consent [for the
purpose of Article 3(2) of Directive 2001/29] is using the services of the [internet] access
providers of persons seeking access to that protected subject-matter?
If the answer to the first question is in the negative:
2. Are reproduction for private use [within the meaning of Article 5(2)(b) of Directive 2001/29] and
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transient and incidental reproduction [within the meaning of Article 5(1) of Directive 2001/29]
permissible only if the original of the reproduction was lawfully reproduced, distributed or made
available to the public?
If the answer to the first question or the second question is in the affirmative and an injunction is
therefore to be issued against the user’s [internet] access provider in accordance with
Article 8(3) of [Directive 2001/29]:
3. Is it compatible with Union law, in particular with the necessary balance between the parties’
fundamental rights, to prohibit in general terms an [internet] access provider from allowing its
customers access to a certain website (thus without ordering specific measures) as long as the
material available on that website is provided exclusively or predominantly without the
rightholder’s consent, if the access provider can avoid incurring coercive penalties for breach of
the prohibition by showing that it had nevertheless taken all reasonable measures?
If the answer to the third question is in the negative:
4. Is it compatible with Union law, in particular with the necessary balance between the parties’
fundamental rights, to require an [internet] access provider to take specific measures to make it
more difficult for its customers to access a website containing material that is made available
unlawfully if those measures require not inconsiderable costs and can easily be circumvented
without any special technical knowledge?’
Consideration of the questions referred
Admissibility of the questions referred
18 As a preliminary point, it should be noted that the fact that the website at issue in the main proceedings
has ceased its activity does not make the questions referred inadmissible.
19 In accordance with settled case-law, in proceedings under Article 267 TFEU, which are based on a
clear separation of functions between the national courts and the Court of Justice, it is solely for the
national court, before which the dispute has been brought and which must assume responsibility for the
judicial decision to be made, to determine, in the light of the particular circumstances of the case, both
the need for and the relevance of the questions that it submits to the Court (see, to that effect, Case
C‑415/11 Aziz [2013] ECR, paragraph 34).
20 Thus, the Court may refuse to rule on a question referred for a preliminary ruling by a national court
only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the
actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court
does not have before it the factual or legal material necessary to give a useful answer to the questions
submitted to it (Aziz, paragraph 35).
21 However, that is not the case in the dispute in the main proceedings because it is apparent from the
request for a preliminary ruling that, under Austrian law, the referring court must make its decision on
the basis of the facts as set out in the decision at first instance, that is to say at a time when the website
at issue in the main proceedings was still accessible.
22 It follows from the above that the request for a preliminary ruling is admissible.
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The first question
23 By its first question, the referring court asks, essentially, whether Article 8(3) of Directive 2001/29
must be interpreted as meaning that a person who makes protected subject-matter available to the
public on a website without the agreement of the rightholder, for the purpose of Article 3(2) of that
directive, is using the services of the internet service provider of the persons accessing that subject-
matter, which is to be regarded as an intermediary within the meaning of Article 8(3) of Directive
2001/29.
24 As a preliminary point, it should be noted that, in the case in the main proceedings, it is common
ground that the protected subject-matter was made available to users of a website without the consent
of the rightholders mentioned in Article 3(2) of Directive 2001/29.
25 Given that, according to that provision, rightholders have the exclusive right to authorise or prohibit any
act of making available to the public, it must be stated that an act of making protected subject-matter
available to the public on a website without the rightholders’ consent infringes copyright and related
rights.
26 In order to remedy such a situation of infringement of the rights at issue, Article 8(3) of Directive
2001/29 provides for the possibility for rightholders to apply for an injunction against intermediaries
whose services are used by a third party to infringe one of their rights.
27 As Recital 59 in the preamble to Directive 2001/29 states, since the services of intermediaries are
increasingly used for infringing copyright or related rights, such intermediaries are, in many cases, best
placed to bring such infringing activities to an end.
28 In the present case, the Handelsgericht Wien and then the Oberlandesgericht Wien ordered UPC
Telekabel, the internet service provider addressed by the injunction at issue in the main proceedings, to
bring the infringement of the rights of Constantin Film and of Wega to an end.
29 However, UPC Telekabel disputes that it may be considered, for the purposes of Article 8(3) of
Directive 2001/29, to be an intermediary whose services are used to infringe a copyright or related
right.
30 In this respect, it follows from Recital 59 in the preamble to Directive 2001/29 that the term
‘intermediary’ used in Article 8(3) of that directive covers any person who carries a third party’s
infringement of a protected work or other subject-matter in a network.
31 Having regard to the objective pursued by Directive 2001/29, as shown in particular by Recital 9
thereof, which is to guarantee rightholders a high level of protection, the concept of infringement thus
used must be understood as including the case of protected subject-matter placed on the internet and
made available to the public without the agreement of the rightholders at issue.
32 Accordingly, given that the internet service provider is an inevitable actor in any transmission of an
infringement over the internet between one of its customers and a third party, since, in granting access
to the network, it makes that transmission possible (see, to that effect, the order in Case C‑557/07
LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten [2009] ECR I‑1227, paragraph
44), it must be held that an internet service provider, such as that at issue in the main proceedings,
which allows its customers to access protected subject-matter made available to the public on the
internet by a third party is an intermediary whose services are used to infringe a copyright or related
right within the meaning of Article 8(3) of Directive 2001/29.
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33 Such a conclusion is borne out by the objective pursued by Directive 2001/29. To exclude internet
service providers from the scope of Article 8(3) of Directive 2001/29 would substantially diminish the
protection of rightholders sought by that directive (see, to that effect, order in LSG-Gesellschaft zur
Wahrnehmung von Leistungsschutzrechten, paragraph 45).
34 That conclusion cannot be called into question by the argument that, for Article 8(3) of Directive
2001/29 to be applicable, there has to be a contractual link between the internet service provider and
the person who infringed a copyright or related right.
35 Neither the wording of Article 8(3) nor any other provision of Directive 2001/29 indicates that a
specific relationship between the person infringing copyright or a related right and the intermediary is
required. Furthermore, that requirement cannot be inferred from the objectives pursued by that
directive, given that to admit such a requirement would reduce the legal protection afforded to the
rightholders at issue, whereas the objective of that directive, as is apparent inter alia from Recital 9 in its
preamble, is precisely to guarantee them a high level of protection.
36 Nor is the conclusion reached by the Court in paragraph 30 of this judgment invalidated by the
assertion that, in order to obtain the issue of an injunction against an internet service provider, the
holders of a copyright or of a related right must show that some of the customers of that provider
actually access, on the website at issue, the protected subject-matter made available to the public
without the agreement of the rightholders.
37 Directive 2001/29 requires that the measures which the Member States must take in order to conform
to that directive are aimed not only at bringing to an end infringements of copyright and of related rights,
but also at preventing them (see, to that effect, Case C‑70/10 Scarlet Extended [2011] ECR
I‑11959, paragraph 31, and Case C‑360/10 SABAM [2012] ECR, paragraph 29).
38 Such a preventive effect presupposes that the holders of a copyright or of a related right may act
without having to prove that the customers of an internet service provider actually access the protected
subject-matter made available to the public without their agreement.
39 That is all the more so since the existence of an act of making a work available to the public
presupposes only that the work was made available to the public; it is not decisive that persons who
make up that public have actually had access to that work or not (see, to that effect, Case C‑306/05
SGAE [2006] ECR I‑11519, paragraph 43).
40 In view of the above, the answer to the first question is that Article 8(3) of Directive 2001/29 must be
interpreted as meaning that a person who makes protected subject-matter available to the public on a
website without the agreement of the rightholder, for the purpose of Article 3(2) of that directive, is
using the services of the internet service provider of the persons accessing that subject-matter, which
must be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.
The second question
41 In the light of the reply to the first question, it is not necessary to reply to the second question.
The third question
42 By its third question, the referring court asks, essentially, whether the fundamental rights recognised by
EU law must be interpreted as precluding a court injunction prohibiting an internet service provider
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from allowing its customers access to a website placing protected subject-matter online without the
agreement of the rightholders when that injunction does not specify the measures which that access
provider must take and when that access provider can avoid incurring coercive penalties for breach of
that injunction by showing that it has taken all reasonable measures.
43 In this respect, as is apparent from Recital 59 in the preamble to Directive 2001/29, the rules for the
injunctions which the Member States must lay down pursuant to Article 8(3) of the directive, such as
those relating to the conditions to be met and the procedure to be followed, are a matter for national
law.
44 That said, those national rules, and likewise their application by the national courts, must observe the
limitations arising from Directive 2001/29 and from the sources of law to which Recital 3 in its
preamble refers (see, to that effect, Scarlet Extended, paragraph 33 and the case-law cited there).
45 In order to assess whether an injunction such as that at issue in the main proceedings, taken on the
basis of Article 8(3) of Directive 2001/29, is consistent with EU law, it is therefore necessary to take
account in particular of the requirements that stem from the protection of the applicable fundamental
rights, and to do so in accordance with Article 51 of the Charter of Fundamental Rights of the
European Union (‘the Charter’) (see, to that effect, Scarlet Extended, paragraph 41).
46 The Court has already ruled that, where several fundamental rights are at issue, the Member States
must, when transposing a directive, ensure that they rely on an interpretation of the directive which
allows a fair balance to be struck between the applicable fundamental rights protected by the European
Union legal order. Then, when implementing the measures transposing that directive, the authorities and
courts of the Member States must not only interpret their national law in a manner consistent with that
directive but also ensure that they do not rely on an interpretation of it which would be in conflict with
those fundamental rights or with the other general principles of EU law, such as the principle of
proportionality (see, to that effect, Case C‑275/06 Promusicae [2008] ECR I‑271, paragraph 68).
47 In the present case, it must be observed that an injunction such as that at issue in the main proceedings,
taken on the basis of Article 8(3) of Directive 2001/29, results primarily in a conflict between (i)
copyrights and related rights, which are intellectual property and are therefore protected under
Article 17(2) of the Charter, (ii) the freedom to conduct a business, which economic agents such as
internet service providers enjoy under Article 16 of the Charter, and (iii) the freedom of information of
internet users, whose protection is ensured by Article 11 of the Charter.
48 As regards the freedom to conduct a business, the adoption of an injunction such as that at issue in the
main proceedings restricts that freedom.
49 The freedom to conduct a business includes, inter alia, the right for any business to be able to freely
use, within the limits of its liability for its own acts, the economic, technical and financial resources
available to it.
50 An injunction such as that at issue in the main proceedings constrains its addressee in a manner which
restricts the free use of the resources at his disposal because it obliges him to take measures which may
represent a significant cost for him, have a considerable impact on the organisation of his activities or
require difficult and complex technical solutions.
51 However, such an injunction does not seem to infringe the very substance of the freedom of an internet
service provider such as that at issue in the main proceedings to conduct a business.
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52 First, an injunction such as that at issue in the main proceedings leaves its addressee to determine the
specific measures to be taken in order to achieve the result sought, with the result that he can choose to
put in place measures which are best adapted to the resources and abilities available to him and which
are compatible with the other obligations and challenges which he will encounter in the exercise of his
activity.
53 Secondly, such an injunction allows its addressee to avoid liability by proving that he has taken all
reasonable measures. That possibility of exoneration clearly has the effect that the addressee of the
injunction will not be required to make unbearable sacrifices, which seems justified in particular in the
light of the fact that he is not the author of the infringement of the fundamental right of intellectual
property which has led to the adoption of the injunction.
54 In that regard, in accordance with the principle of legal certainty, it must be possible for the addressee
of an injunction such as that at issue in the main proceedings to maintain before the court, once the
implementing measures which he has taken are known and before any decision imposing a penalty on
him is adopted, that the measures taken were indeed those which could be expected of him in order to
prevent the proscribed result.
55 None the less, when the addressee of an injunction such as that at issue in the main proceedings
chooses the measures to be adopted in order to comply with that injunction, he must ensure
compliance with the fundamental right of internet users to freedom of information.
56 In this respect, the measures adopted by the internet service provider must be strictly targeted, in the
sense that they must serve to bring an end to a third party’s infringement of copyright or of a related
right but without thereby affecting internet users who are using the provider’s services in order to
lawfully access information. Failing that, the provider’s interference in the freedom of information of
those users would be unjustified in the light of the objective pursued.
57 It must be possible for national courts to check that that is the case. In the case of an injunction such as
that at issue in the main proceedings, the Court notes that, if the internet service provider adopts
measures which enable it to achieve the required prohibition, the national courts will not be able to
carry out such a review at the stage of the enforcement proceedings if there is no challenge in that
regard. Accordingly, in order to prevent the fundamental rights recognised by EU law from precluding
the adoption of an injunction such as that at issue in the main proceedings, the national procedural rules
must provide a possibility for internet users to assert their rights before the court once the implementing
measures taken by the internet service provider are known.
58 As regards intellectual property, it should be pointed out at the outset that it is possible that the
enforcement of an injunction such as that in the main proceedings will not lead to a complete cessation
of the infringements of the intellectual property right of the persons concerned.
59 First, as has been stated, the addressee of such an injunction has the possibility of avoiding liability,
and thus of not adopting some measures that may be achievable, if those measures are not capable of
being considered reasonable.
60 Secondly, it is possible that a means of putting a complete end to the infringements of the intellectual
property right does not exist or is not in practice achievable, as a result of which some measures taken
might be capable of being circumvented in one way or another.
61 The Court notes that there is nothing whatsoever in the wording of Article 17(2) of the Charter to
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suggest that the right to intellectual property is inviolable and must for that reason be absolutely
protected (see, to that effect, Scarlet Extended, paragraph 43).
62 None the less, the measures which are taken by the addressee of an injunction, such as that at issue in
the main proceedings, when implementing that injunction must be sufficiently effective to ensure genuine
protection of the fundamental right at issue, that is to say that they must have the effect of preventing
unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of
seriously discouraging internet users who are using the services of the addressee of that injunction from
accessing the subject-matter made available to them in breach of that fundamental right.
63 Consequently, even though the measures taken when implementing an injunction such as that at issue in
the main proceedings are not capable of leading, in some circumstances, to a complete cessation of the
infringements of the intellectual property right, they cannot however be considered to be incompatible
with the requirement that a fair balance be found, in accordance with Article 52(1), in fine, of the
Charter, between all applicable fundamental rights, provided that (i) they do not unnecessarily deprive
internet users of the possibility of lawfully accessing the information available and (ii) that they have the
effect of preventing unauthorised access to protected subject-matter or, at least, of making it difficult to
achieve and of seriously discouraging internet users who are using the services of the addressee of that
injunction from accessing the subject-matter that has been made available to them in breach of the
intellectual property right.
64 In the light of the foregoing considerations, the answer to the third question is that the fundamental
rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an
internet service provider from allowing its customers access to a website placing protected subject-
matter online without the agreement of the rightholders when that injunction does not specify the
measures which that access provider must take and when that access provider can avoid incurring
coercive penalties for breach of that injunction by showing that it has taken all reasonable measures,
provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of
lawfully accessing the information available and (ii) that those measures have the effect of preventing
unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of
seriously discouraging internet users who are using the services of the addressee of that injunction from
accessing the subject-matter that has been made available to them in breach of the intellectual property
right, that being a matter for the national authorities and courts to establish.
The fourth question
65 In the light of the reply to the third question, it is not necessary to reply to the fourth question.
Costs
66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending
before the national court, the decision on costs is a matter for that court. Costs incurred in submitting
observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
1. Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of
22 May 2001 on the harmonisation of certain aspects of copyright and related rights in
the information society must be interpreted as meaning that a person who makes
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protected subject-matter available to the public on a website without the agreement of
the rightholder, for the purpose of Article 3(2) of that directive, is using the services of
the internet service provider of the persons accessing that subject-matter, which must
be regarded as an intermediary within the meaning of Article 8(3) of Directive 2001/29.
2. The fundamental rights recognised by EU law must be interpreted as not precluding a
court injunction prohibiting an internet service provider from allowing its customers
access to a website placing protected subject-matter online without the agreement of
the rightholders when that injunction does not specify the measures which that access
provider must take and when that access provider can avoid incurring coercive
penalties for breach of that injunction by showing that it has taken all reasonable
measures, provided that (i) the measures taken do not unnecessarily deprive internet
users of the possibility of lawfully accessing the information available and (ii) that those
measures have the effect of preventing unauthorised access to the protected subject-
matter or, at least, of making it difficult to achieve and of seriously discouraging
internet users who are using the services of the addressee of that injunction from
accessing the subject-matter that has been made available to them in breach of the
intellectual property right, that being a matter for the national authorities and courts to
establish.
[Signatures]
* Language of the case: German.