The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Friday, 22 September 2017

German Federal Court of Justice rules that GS Media presumption of knowledge does not apply to Google Images

Is Google responsible for the lawfulness of the images displayed through its Images search service?

According to the German Federal Court of Justice (Bundesgerichtshof - BGH), the answer is NO.

In a judgment delivered yesterday (I ZR 11/16 - Preview III) the BGH relied on the decision of the Court of Justice of the European Union (CJEU) in GS Media, C-160/15 [Katposts here] and dismissed the action that the operator of a photography website had brought against Google and its search engine.

Background

The applicant’s website includes a restricted (password-protected) area to which customers can only access upon payment of a fee. Once there, customers are able to download the photographs placed in this area to their computers.

Some of these photographs were re-uploaded unlawfully by customers onto freely accessible websites. Relevant thumbnails were subsequently indexed on Google Images from such freely accessible sites.

According to the applicant, by indexing and displaying thumbnails of the photographs to which it owns the copyright, Google had infringed its own exclusive right of communication to the public pursuant to § 15(2) UrhG [the German Copyright Act, by which this Member State transposed Article 3(1) of the InfoSocDirective into its own national law].

The BGH held that Google had not infringed the applicant’s copyrights for displaying thumbnails of and links to photographs publicly available on the internet without the applicant’s consent.

Visual map on linking after GS Media, available here
GS Media and the presumption of knowledge for profit-making operators

As mentioned, to reach this conclusion the BGH relied on the CJEU decision in GS Media, according to which the posting of a link to a freely accessible website on which a copyright work is available without the permission of the relevant rightholder falls within the scope of Article 3(1) of the InfoSoc Directive if the link provider knew or could reasonably know that the content linked to had been made available without the rightholder’s consent.

The BGH also recalled that in GS Media the CJEU had stressed the importance of the internet to freedom of expression and of information, and that hyperlinks contribute to its sound operation as well as to the exchange of opinions and information in that network characterized by the availability of immense amounts of information [para 45 of GS Media].

However, in GS Media, the CJEU also stated that if the link provider operates for profit [as is the case of a search engine like Google], then

“it can be expected that the person who posted such a link carries out the necessary checks to ensure that the work concerned is not illegally published on the website to which those hyperlinks lead, so that it must be presumed that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder. In such circumstances, and in so far as that rebuttable presumption is not rebutted, the act of posting a hyperlink to a work which was illegally placed on the internet constitutes a ‘communication to the public’ within the meaning of Article 3(1) of Directive 2001/29.” [para 51 of GS Media]

So?

According to the BGH this presumption does NOT apply to search engines and for links displayed by search engines because of the particular importance of search services for the functioning of the internet. According to the German court, the provider of a search function cannot be expected to check the lawfulness of the images automatically retrieved from publicly accessible websites.

Google Image Search for IPKat
Conclusion

The BGH’s take on GS Media is an interesting one, and it will be important to read the full text of the judgment once it becomes available.

It appears that the German court’s decision was justified by concerns relating to the possible disruptive effects that a strict application of CJEU case law would have on the broader functioning of the internet. In this sense, the decision echoes the tones used – way more vigorously than what the CJEU judgment does – by Advocate General (AG) Wathelet in his Opinion in GS Media [here]. The AG rejected the very idea that linking should fall within the scope of copyright protection at all. Holding otherwise “would significantly impair the functioning of the Internet and undermine one of the main objectives of Directive 2001/29, namely the development of the information society in Europe. Such an interpretation could also distort the ‘fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter’.” [para 77 of the AG Opinion].

This said, it does not appear that – after GS Media – CJEU jurisprudence on the right of communication to the public has become less stringent: the decisions in Filmspeler [here] and Ziggo [here] are telling instances.

Finally, with particular regard to the issue of image search engines, readers might remember that last year France adopted a law (LOI n° 2016-925 du 7 juillet 2016 relative à la liberté de la création, à l'architecture et au patrimoine) [this is the version currently in force] that would require search engines displaying thumbnails of copyright works to be part of a compulsory collective management system for the reproduction of photographs and images [here and here].

After France and Germany (and amidst all activity and activism of the CJEU) it will be crucial to see how legislatures and courts - both around the EU and at the EU level - will position themselves in relation to online issues.

Thursday, 21 September 2017

Life as an IP Lawyer: Washington, D.C.

The AmeriKat's professional life, be it on the Kat or sat at her desk litigating her hours away, involves a huge amount of coordination, support and opposition with lawyers from all over the world. One of the IPKat's key objectives is to bring this global IP community closer together by sharing IP decisions, legislation and practice from across the world with our readers, with the aim that by understanding our unique perspectives on the culture of IP practice we can work together to make IP a success story for innovators, creators, users and the public. With those grand aims, the AmeriKat thought it would be worthwhile to ask the next generation of global IP lawyers to illuminate IP practice in their jurisdiction, as well as to give readers some fun reading over their lunch-al-desko

***********************

Rachel Fertig
For the ninth in the series, we travel 3600 miles south west to Washington, D.C., where Rachel Fertig (former Ringer Honors Fellow at the US Copyright Office and soon-to-be associate at Morgan Lewis) is working to break down the silos of IP specialties, dreams of practicing in Milan and lunch with Barbara Ringer.  The AmeriKat randomly met Rachel while waiting for a cab on the streets of DC after last year's ChIPs Next Generation Event, so for those of you attending this year's NextGen and Summit Rachel has some DC tips for you!


**The views expressed in this article are those of the author, Rachel Fertig, and do not represent the official views of the U.S. Copyright Office.

What can you see from your office window right now?

This is actually a long-running joke among Copyright Office staff, but most of us don’t have windows. The Copyright Office is part of the Library of Congress and is located in the Madison Building—originally designed as a storage facility for the Library’s rapidly expanding collection of creative works. The Library’s staffing needs expanded over time as well, so room was also made in the Madison Building for the Copyright Office and other Library staff. That said, when you are lucky enough to get a window, the view is quite stunning because the Office sits at the top of Capitol Hill in Washington, DC and has views of Congress, the Jefferson Building (the main Library building), and the Supreme Court.

When did you know that you wanted to pursue a career in IP?

I was really interested in fashion, economics, and politics growing up, and I distinctly remember telling my classmates in high school that I wanted to pursue a career in international intellectual property law (not that I completely understood what that meant). When I started college, I decided to triple-major in International Political Economy, French, and Asian Studies, and wrote my senior thesis on combating counterfeit pharmaceutical production in China. I continued to study IP and international trade in law school, and was fortunate to turn a summer internship with the Association of American Publishers into a permanent counsel position, where I worked on both international copyright enforcement and domestic copyright law modernization.

Although my practice has focused on copyright, my love of fashion and branding still shows up in my “trademark” style of only wearing Louboutins—which started with the three essential pairs I bought as a law school graduation present.

That building to the north east is the Madison Building
(Photo credit: Carol Highsmith, Library Congress)
Walk us through a typical day...

My typical day starts around 5:00am with a “high-intensity interval training” workout, which helps boost my energy for the day. Then I get ready for work, walk my dog, and listen to my morning news podcasts on my walk to the office. As a Ringer Fellow, my day could focus on domestic and/or international copyright law questions.  The Barbara A. Ringer Copyright Honors Fellowship gives selected young lawyers an 18- to 24-month opportunity to work as an attorney-advisor across all departments within the Copyright Office, including the Office of General Counsel and Office of Policy & International Affairs.

During my time at the Copyright Office I’ve worked on a variety of projects from helping to develop the U.S. Government’s position for the Supreme Court’s review of Star Athletica, L.L.C. v. Varsity Brands, Inc. (addressing the scope of copyright protection for designs incorporated into useful articles, e.g., graphic designs on a cheerleading uniform) to supporting the Office’s public policy study evaluating the effectiveness of ISP safe harbors and online copyright protection (the Section 512 Study) to reviewing and updating the 1,168-page Compendium of U.S. Copyright Office Practices (2017 ed.), which provides public guidance on just about everything related to copyright registration and recordation under U.S. law.

I usually left the office around 7:30pm, took things to finish reading, walked home (in sneakers, not the Louboutins), cooked dinner, and unwound from the day reading with my dog.

(P.S. Applications for the Ringer Fellowship are being accepted from July – September 15 this year.)

What are the key differences in your system that clients/other lawyers from outside the jurisdiction find surprising or strange?

U.S. copyright law is, I think, quite well understood around the world, but our system of music licensing is probably the thing that most lawyers from outside the United States would find “strange.” Whereas many countries have collective rights organizations that can efficiently license all necessary rights for public performance of musical works, the U.S. licensing system involves: (1) multiple collective rights organizations (called performing rights organizations, or “PROs”); (2) oversight from the Department of Justice’s Antitrust Division and rates set by federal district courts for the two largest PROs; and (3) a default rule allowing a single author of a jointly-authored work to license the entire work without the consent of co-authors. Digital-interactive public performance rights for sound recordings are negotiated in the free market (e.g., Spotify), although digital-non-interactive public performance rights for sound recordings are governed by a statutory license with rates determined by an administrative panel of judges (the Copyright Royalty Board). And beyond performance rights, U.S. copyright law involves a mix of other collective rights organizations, free market negotiations, as well as statutory and compulsory licenses. Helpfully, the Copyright Office published an overview and recommendations for simplifying this system in 2015: Copyright and the Music Marketplace.

One other quick issue to note is that the United States is a common-law system with 13 separate “circuits” in which the appellate courts set binding precedent for their geographic area of jurisdiction. This means that the binding interpretation of the Copyright Act may differ between these circuits, which is referred to as a “circuit split.” To resolve such splits, parties often ask the Supreme Court to review a case and provide a unifying interpretation of the law. For example, before the Supreme Court took the Star Athletica case, there were as many as nine separate tests for determining the scope of copyright protection for an artistic feature incorporated into a useful article. These ranged from the Fifth Circuit’s “marketability” test (essentially finding an artistic feature protectable by copyright if it would be marketable as art after being separated from the useful article) to the Second Circuit’s “design-process” test (protecting designs resulting from aesthetic choices instead of functional considerations). The Supreme Court rejected both of these tests and crafted a new unified standard in March 2017.

Rachel and her Louboutins
(Photo credit:  Emma Raviv, co-Ringer Fellow)
What are the key challenges that are facing the next generation of IP lawyers in your jurisdiction? How are those challenges different from the previous generation?

As a millennial, I’m part of the “next generation” of IP lawyers. From discussions with my peers as well my five years of practice in DC, I think the biggest challenge for the next generation of IP lawyers is to work more collaboratively across IP specialties and business sectors to develop policies, businesses, and enforcement strategies that foster a sustainable creative economy. The current generation has identified the stumbling blocks, for instance, the ways copyright and internet laws are not meeting critical needs of the content and tech industries or the public. The next generation, particularly in the copyright sector, needs to attract talented, tech-savvy lawyers who can develop solutions that support long-term creativity and innovation. To do so, these IP lawyers need to actively work to break down the silos between different IP law specialties because everything is intertwined in the digital economy.

For my part, as co-chair of the DC Chapter of the Copyright Society, I’ve worked on reaching out to other IP groups and hope to foster more cross-IP dialogue going forward.

What are the misnomers that people have about IP practice in your jurisdiction?

There are probably more misnomers than one can count. One big one is that people think the U.S. Copyright Office is part of the U.S. Patent and Trademark Office (“PTO”). As noted above, the Copyright Office is actually part of the Library of Congress. Although the PTO does have a great copyright group, section 701 of the Copyright Act directs the Copyright Office to:
(1) administer the Copyright Act (including all registration and recordation of copyrights);
(2) advise Congress on national and international issues relating to copyright;
(3) assist other federal agencies and the courts on copyright matters;
(4) participate in international meetings (like WIPO);
(5) conduct studies on copyright law and administrative policy; and
(6) provide public education about copyright.
I would note, however, that the somewhat anomalous legal structure of the Copyright Office has been the subject of repeated discussion in Congress about whether the Office should be part of a unified IP Office, part of the Patent and Trademark Office, or made into an independent agency. This discussion is part Congress’ ongoing review of the Copyright Act, which has led to legislative proposals such as the CODE Act.

If you could change one thing about IP practice in your jurisdiction, what would it be?

I would love to create more entry-level jobs for young lawyers to work on copyright law and policy. Through the Copyright Society and the internship program at the Copyright Office, I’ve met many students with a passion for music, film, books, photography, technology, and software who want to find a way to work in copyright when they graduate. Jobs right out of law school, however, are hard to find at a law firm or otherwise, but the need for more copyright lawyers seems apparent with creation, sharing, and adaptation of copyrighted works becoming a key part of popular digital culture from internet memes to musical mashups to fanfiction.

What gives you the biggest thrill in your job?

Without a doubt, the biggest thrill for me is meeting creators and learning how and why copyright protection has made it possible for them to write, film, compose, and code some of the most enlightening and entertaining works that help to connect people around the globe.

What are the top trends or cases that we should be looking out for in your jurisdiction?

Trends in fair use analysis are worth watching—and summaries of notable decisions are posted on the Copyright Office’s Fair Use Index.

The cherry blossoms in DC
(Photo credit:  Rachel Fertig)
Specific non-fair use cases to watch include:
United States v. Broadcast Music Inc. This case is currently on appeal in the Second Circuit and is likely to have a significant impact on how the two largest PROs in the United States license performance rights for musical works. (Docket No. 16-cv-03830).

Capitol Records, LLC v. ReDigi Inc. This case is also on appeal in the Second Circuit and will address whether copyright law permits consumers to resell legally-acquired digital content as is permitted under the “first sale” doctrine for physical copies of books, CDs, and other copyrighted works. (Docket No. 16-cv-02321).

Green v. U.S. Department of Justice. This case is in the D.C. district court and challenges the constitutionality of the Copyright Office/Library of Congress rulemaking process that creates 3-year exemptions to statutory prohibitions against circumvention of technological protection measures that control access to copyrighted works. These exemptions provide important flexibility in the law to facilitate free expression, access for the visually impaired, and technology research and innovation. (Docket No. 16-cv-01492)
I think it’s also important to watch Congress to see if they enact any legislation to address issues from the House Judiciary Committee’s first policy proposal, including modernization of music licensing and the creation of an administrative court to adjudicate small copyright claims.

Additionally, I’d monitor announcements from the Copyright Office, which is working on policy reports and recommendations regarding safe harbors and online protection of copyrighted works; moral rights; mass digitization; and exceptions and limitations for cultural institutions (libraries, archives, and museums).

To be successful in your jurisdiction, what are the key skills a young IP lawyer needs?

To be successful, a young lawyer needs passion, excellent research and writing skills, and an open mind.

Many copyright issues involve contrasting judicial and scholarly opinions, evolving technologies, and additional legal considerations from free speech to antitrust to international trade. Although there are few entry-level copyright law jobs, it has certainly been my experience that young lawyers are eagerly included in the field when they can combine genuine interest with excellent research and compelling analysis of the law (as it is or should be).

What are you going to/what did you eat for lunch today?

For lunch today, I’ve made an arugula salad with grilled salmon, herbed quinoa, roasted peppers, red onions, avocado, and pesto vinaigrette.

What other jurisdictions do you work with the most in your practice?

My work focuses on U.S. copyright law, but during my fellowship, I also examined issues in Canada, Mexico, and assisted other attorneys in the office with China, India, and the Middle East. Lawyers in the Office of Policy & International Affairs are assigned various regions and help the Office track copyright developments around globe in order to provide guidance to the U.S. as well as foreign governments.

Looking into your crystal ball, where do you see the profession in 10 years’ time?

Today, the copyright debates in Washington are often described as battles in a copyright v. tech war. In 10 years, however, I think (hope!) there will be a more collaborative legal environment for three main reasons: (1) the content industries will have more efficient and effective strategies for adapting to and embracing new technologies (e.g., blockchain); (2) lawyers will have greater technology literacy, which will improve communication between the tech and copyright lawyers; and (3) Congress will have completed its copyright revisions, which will hopefully give courts greater guidance in balancing the public and private interests presented in modern copyright cases.

If you could practice IP law anywhere else in the world for a year, where would that be and why?

I would love to practice in Paris or Milan to learn about copyright, design, and trademark law in the fashion industry. Working on the Star Athletica case was such a fun way to mix my love of IP law and fashion, and I know that the protection strategies are a bit different in the EU, so I’d love to learn more about how they work.

If you could have lunch with someone famous in the IP world (judge, lawyer, inventor, politician, alive or dead), who would that be and why, and where would you take them?

The Great Hall at the Library of Congress
(Photo credit: Carol Highsmith)
Perhaps it’s because I’m currently serving as a Ringer Fellow, but I would love to have lunch with Barbara Ringer. For a number of projects, I’ve read memos she drafted in the 1950s and have been in awe at the clarity and longevity of her insights. Even more significantly, Barbara Ringer fought against discrimination to become the first female Register of Copyrights, led much of the drafting of the current Copyright Act, and was known for harmonizing divergent points of view on domestic and international copyright issues. She is the epitome of a role model. Given that she spent a good amount of time in Paris, I think it’d be lovely to talk with her about fighting for the rights of creators over brunch at Le Diplomate in DC.

What is the best piece of advice you have ever been given?

Be part of the solution, not part of the problem.

This is my mother’s go-to advice for any issue, and it has served me well professionally and personally. Instead of focusing on flaws, there always seems to be more value in working to create or support a solution that improves upon the status quo.

If our readers were to come to your city, what are the top three things you recommend they see, do and eat (in that order)?

See the Cherry Blossoms in peak bloom around the Jefferson Memorial (typically in late March or early April).

Go on the guided tour of the Library of Congress’ Jefferson Building, which includes explanations of the mosaics, quotes, and sculptures in the Great Hall.

Eat a burger. There’s so much good food to eat, but for the American experience, definitely have a burger. I’d recommend either the Grilled Bacon Smoke Burger at Del Campo (with grilled avocado, onions, smoked tomato, and provolone) or the Proper Burger at Duke’s Grocery (with melted gouda, dill pickles, charred red onions, Thai sweet chili sauce, rocket, garlic aioli, and a runny egg).

Furie-ous creator of Pepe the Frog determined to use copyright to get his green creation back

From Boy's Club
Can the author of a comic character oppose what he believes to be a distortion of the character’s meaning?

Katfriend Nedim Malovic (Sandart & Partners) reports on the heated debate surrounding Matt Furie’s Pepe the Frog.

Here’s what Nedim writes:

“Matt Furie, a children’s artist and the face behind the (now) infamous “Pepe the Frog” character, is fed up. After years of unauthorised exploitation of his cartoon by – amongst others – alt-right activists in various racist contexts, Mr Furie made the decision to use copyright to fight back.

The story initially dates back to 2005, when Furie created comic book Boy's Club. In the comics, Pepe was seen urinating with his pants pulled down to his ankles and the catchphrase "feels good man”.

In 2008 the page containing Pepe and his catchphrase was scanned by an anonymous user and uploaded onto 4chan (an image board website).  

4chan users later adapted Pepe’s face and the catchphrase to fit different scenarios and contexts.

An internet meme and GIF sensation was thus born.

Sad Pepe
However, it was not until the US 2016 presidential election that the meme became associated with white supremacist and alt-right organisations. According to media reports, “turning Pepe into a white nationalist icon" was an explicit goal of some in the alt-right movement.

Mr Furie has now vowed to “aggressively enforce his intellectual property”. His lawyers have, inter alia, sent cease-and-desist requests to several alt-right individuals and websites. Furthermore, the lawyers have also submitted Digital Millennium Copyright Act (DMCA) copyright takedown requests to Amazon, Twitter, YouTube and Reddit.

It will be interesting to see how this dispute evolves. It raises interesting points, including the unauthorised distortion of the meaning of one’s own work and the interplay between different rights and interests.

Feels (im)moral man …

Still in the US one might recall the media storm caused by the angry reaction of the sculptor of Charging Bull in relation to the positioning of Fearless Girl [commented on IPKat here]. Although this Wall Street dispute had different tones than the ones in the Pepe the Frog case, it also raised a debate on moral rights protection under US copyright law. As readers know, moral rights protection in the US is fairly narrow compared to European droit d’auteur jurisdictions.

A Pepe GIF
To the Batmobile!

Unlike in the Charging Bull/Fearless Girl case, the copyright issue at stake here appears to be not really moral rights (as it is unlikely that protection would be available under US law) but rather economic rights. Pepe the Frog in this case has been in fact reproduced without authorisation several times, and this raises issues of copyright protection of characters. 

In its recent decision in DC Comics v Mark Towle 2:11-cv-03934-RSWL-OP [here], the Court of Appeals for the 9th Circuit confirmed that:

·       “copyright protection extends not only to an original work as a whole, but also to “sufficiently distinctive” elements, like comic book characters, contained within the work”; but
·        "Not every comic book, television, or motion picture character is entitled to copyright protection ... [C]opyright protection is available only “for characters that are especially distinctive.” … To meet this standard, a character must be “sufficiently delineated” and display “consistent, widely identifiable traits.” In any case
·       “a character may be protectable if it has distinctive character traits and attributes, even if the character does not maintain the same physical appearance in every context.”

In conclusion

The Pepe the Frog case is one to watch: it raises issues of character protection, but also prompts a discussion around the thin moral rights regime in US copyright law. Finally, it calls for consideration – once again – of the interplay between copyright protection, fair use, and freedom of expression.”

Wednesday, 20 September 2017

Book Review: : Marketing and Advertising Law in a Process of Harmonisation

Readers keen on marketing and advertising law, the harmonisation process and the relationship between advertising and IP law may be interested in the latest edition in the Modern Studies in European Law from Hart Publishing. The book, titled ‘Marketing and Advertising Law in a Process of Harmonisation’ is edited by Ulf Bernitz and Caroline Heide-Jørgensen and transpired following a conference titled: “A Common Law of Unfair Competition – Europeanization and Integration, From Harmonizing Misleading Advertising to Unfair Commercial Practices.” It brings together a number of prolific authors to discuss the various issues within the harmonisation process.

The introductory chapter explains that the EU Directive concerning unfair commercial practices (2005/29/EU) aimed to create uniform rules and develop the fairness of commercial practices for the protection of consumers. Traditionally, there has been minimal harmonisation in this area, however, the Directive changed this and set to implement full harmonisation. This book recognises the impact of the EU Directive on marketing and advertising law, particularly considering the harmonisation process.

The book is presented in four key parts across 12 chapters. The first part provides general perspectives and background on the harmonisation of EU Unfair Competition Law. In particular, the first part considers commercial expression in relation to freedom of speech (chapter 2) and the distinction between the regulation of misleading advertising and the self-regulation of matters involving ethics, taste and decency (chapter 3).

The second part of the book analyses the relevant European legislation; the Unfair Commercial Practices Directive and the Comparative Advertising Directive are discussed across four chapters. The authors consider issues such as interpretation, incorporation and scope of the Directives. Particular attention is paid to how these issues such as the open interpretation and application of the Directives pose a challenge to successful harmonisation. This part of the book also considers the relevant soft law such as the International Chamber of Commerce (ICC) Code for Advertising and Marketing and the UCPD guidance.  

The third part focuses on enforcement issues. For example, chapter 9 considers the Norwegian experience of applying the UCP Directive, and in particular how the cases of children and surreptitious advertising illustrate the challenges of interpreting the Black List clauses.

Readers will likely find chapter 11 particularly interesting. This chapter addresses the question of how unfair competition law can complement intellectual property protection. The author discusses the relationship between unfair competition and intellectual property. For example, the General Provisions on Advertising and Marketing Communication Practice state (at Art 5) that marketing communications should not mislead the consumer. The author argues that this mirrors the Paris Convention (Art 10bis3(i)) which includes all acts that create confusion. The chapter mainly focuses on trade mark law, it discusses the relationship between trade mark law and the Comparative Advertising Directive, particularly through considering the relevant CJEU case law.

The book was published in May 2017 and is available in hardback or on kindle, full details hereISBN: 9781509900671 Imprint:Hart Publishing Series: Modern Studies in European Law Dimensions: 234 x 156 mm RRP: £65.00

Tuesday, 19 September 2017

Never Too Late: If you missed the IPKat Last Week!

Been away and want to catch up with last week's IP news? No problem! As always, the IPKat is here to bring you a quick summary, here’s the 163rd edition of Never Too Late.

Quenching my thirst for the latest IP info!
Neil considers that one way to view the discussion set out by Sanford Grossman and Oliver Hart in their 1986 article, "The Costs and Benefits of Ownership: A Theory of Vertical and Lateral Integration" is to ask: when should one contract with a supplier for a good or service and when should one vertically integrate it by acquisition? He considers how, in addressing this questions, they treat IP matters quite differently. 

It has been confirmed that the complainant who filed the constitutional complaint against the ratification of the UPC Agreement in Germany was the attorney Ingve Stjerna. Stjerna has long been a vocal critic of the Unified Patent Court, and the complaint reflects some of his earlier criticisms.

The European Commission has set out its principles for the political dialogue on intellectual property (and various other issues including the use of data) in the Brexit negotiations.

Katfriend Darren Meale provides an analysis of a recent decision relating to UK unregistered design rights (UKUDR): Neptune v DeVOL Kitchens [2017] EWHC 2172. In particular, he notes that as well as giving a clear illustration of a UKUDR in action, the case also firmly answers an important question about the scope of UKUDR following the amendment of the law in 2014.

Advocate General (AG) Szpunar has provided his Opinion in relation to VCAST Limited v R.T.I. SpA, C-265/16, a the reference for a preliminary ruling to the Court of Justice of the European Union (CJEU) from the Turin Court of First Instance. The AG affirmed that EU law prohibits a commercial undertaking from providing private individuals with cloud computing services for the remote video recording of private copies of works protected by copyright.

Katfriend Darren Meale follows up on Kat Rosie’s announcement that the European Commission had set out its principles for the political dialogue on intellectual property in the Brexit negotiations. He explains the EU Commissions position and how that measures up against the UK’s position.

Neil reports on the 6th Annual Singapore IP Week event organised by the Intellectual Property Office of Singapore, IP Academy, IPOS-International and IP ValueLab. With 3,000 participants taking part in various programs, the highlight event was the two-day Global Forum on Intellectual Property: Ideas to Assets.

On September 19th and 20th, the National University of Singapore will host the Design Law Reform Conference at its Bukit Timah Campus, the conference will discuss the current state of play of design protection at national and international levels.

Plus our weekly round-up posts: Friday Fantasies and Around the IP Blogs.


PREVIOUSLY ON NEVER TOO LATE
Never Too Late 162 [week ending Sunday 27 August] Book Review: Economics of the Internet I France: "Photoshop decree" coming up soon I Is there a role for the tort of unlawful means in patent law? I Around the IP blogs!
Never Too Late 161 [week ending Sunday 20 August]  Italian Supreme Court issues groundbreaking decision on punitive damages, opening the door for IP claims | TILTing Perspectives 2017 | Freedom of panorama in Portugal: content and scope of the exception | When "mayo" is not mayonnaise, yet still is mayonnaise: All a matter of the label? | Friday Fantasies

Never Too Late 160 [week ending Sunday 13 August] Scottish court “vaporized” trade mark invalidity appeal | Battle of the free trade mark databases – Global Brand Database versus TMview | An Improved Improver? - Part 3. | Netflix weather report: sunny today, possibility of rain clouds tomorrow? | Roger in troubled Waters 

Never Too Late 159 [week ending Sunday 6 August] Cross-undertaking in damages - Napp Pharmaceuticals v Sandoz Limited | In memoriam of June Foray: the greatest screen voice whom you probably never heard of, but likely heard | UK Supreme Court holds that grey market sales can be criminal offence | New administrative notice-and-takedown procedure in Greece | Are you XKING kidding me? Making sense of trade mark conflict in the EUTM system | The challenge of protecting a database without a sui generis right, this time from Singapore | France: costs of blocking injunctions to be borne by internet intermediaries | INTA Trademark Administrators and Practitioners Meeting--early bird registration ends August 4th | TILTing Perspectives 2017 (First Part: Online Enforcement and Black Box Tinkering) | France: 13 million in damages awarded for linking to downloadable copyright works | Monday Miscellany, Sunday Surprises


Photo credit: wabisabi2015

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