IP@OC Update: November 2016


Written on 17 November 2016

Welcome to the latest edition of Osborne Clarke’s IP@OC Update.

In this edition, we look at how two potentially revolutionary areas of technology could come together to offer an efficient solution to the management of IP rights. The distributed, and therefore transparent, nature of such a solution would also play well with the European Commission’s proposed copyright reforms (discussed below), which are designed to improve transparency for authors and performers as to how their works are being exploited.

In contrast to the slow moves to harmonise copyright in the EU, the EU trade mark is supposed already to ensure a unitary right across the EU. However, a recent case, that we discuss below, raises doubt about quite how uniform that protection is.

We also look at three of the issues that copyright holders are currently grappling with: what action they can take against the operators of networks that are used to access infringing material; whether they can also pursue ‘secondary’ sites that hyperlink to infringing material; and (where the copyright relates to music) when the unlicensed sampling or copying of music will constitute infringement.

We hope you enjoy these articles. If you would like to discuss any of the issues raised in this Update, please get in touch with the author of the article or your usual Osborne Clarke contact.

Blockchain, AI and IP: will new technologies transform IP management?

Artificial intelligence systems are already beginning to make inroads into the formerly exclusively human capabilities of analysing legal information and decision making. The progress in AI offers a potential solution to perennially problematic IP issues, the operation of “fair use” and “fair dealing” exceptions from copyright restrictions and, combined with another new technology in the form of blockchain, the digital management of IP rights.

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EU copyright reform for the Digital Single Market

On 14 September 2016, the European Commission published its proposed EU copyright reform package, as part of its Digital Single Market Strategy. According to the Commission, the proposals are intended to promote “a fair, efficient and competitive European copyright-based economy”. In contrast, critics have described the proposals as “a backward step for copyright in Europe”.

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Sample recognition: Blurring the lines between inspiration and copyright infringement

The past year or so has seen a number of high profile cases of alleged copyright infringement in music. Ed Sheeran, Madonna, Kanye West, Jay Z, KraftWerk and Robin Thicke have all recently been involved in litigation. Often, courts are asked to make difficult decisions about the similarities and differences between two pieces of music. But even where the disputes involve direct sampling, the legal position is still far from straightforward. The approach of courts across the EU to these difficult issues highlights the balance that courts need to strike in a much wider class of copyright disputes, between protecting the rights holder’s legitimate interests and allowing innovation.

For a discussion of two recent German cases concerning sampling, click here.

For a comparison of the approach taken by the French courts with those in the US, click here.

CJEU rules that hyperlinking can constitute copyright infringement

The CJEU has ruled that providing a hyperlink to freely accessible online content posted without the consent of the copyright owner could constitute a copyright infringement if the person placing those links knew this consent was not given. In doing so, the CJEU has provided guidance for website operators on when their use of hyperlinks to provide access to material on other websites may itself infringe. The onus will be on them to consider whether the linked content was illegally uploaded to the internet.

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Unprotected Wi-Fi Networks and Copyright Infringement

Hard on the heels of the European Commission’s recent statement that access to free Wi-Fi should be expanded across Europe, a recent CJEU case has delivered some mixed news for businesses which offer free unprotected Wi-Fi networks for customers, the actions of whom they have little, if any, control over.

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Is the EU trade mark really a unitary right? CJEU rules on territorial scope of injunction

The CJEU has ruled that where a Member State court has found infringement of an EU trade mark on the basis of likelihood of confusion in one part of the EU, but not in another, any injunction ordered should exclude those parts of the EU where no likelihood of confusion was found.

In reaching its decision, the CJEU has restricted the ability of brand owners to obtain pan-EU injunctions in respect of infringement of EU trade marks. The decision could be seen as a blow for the EU trade mark as a full unitary right capable of enforcement across the whole region.

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*This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.