The Forgotten Right of Independent Creation – Judgments from the Finnish and Swedish Supreme Courts

(Note: The picture is unrelated to the Finnish case)

Setting the Stage

Copyright plays a very important role in the creative industries. But what also plays a very important role for the mere existence of those industries is inspiration. Virtually every musician or artist is inspired by other musicians or artists, every painter is inspired by other painters, that is the way the world works and denying this would be quite naïve to say the least. This short introduction brings us to the topic of this post. If you create an entirely new and independent work, you will not have to seek any permission from the copyright owner to reproduce or distribute your own work. This is the rule in many jurisdictions in the world. But if you use another’s work to make an adaptation, you would need permission. But where to draw the line?

Judgment of the Swedish Supreme Court

On 21 February 2017, the Supreme Court of Sweden had handed down a judgment (T 1963-15) in a quite interesting case. At the heart of dispute was a photograph and a painting which was alleged to infringe Swedish copyright law. The photographer had followed a person who was a suspect in the murder of the Swedish Prime Minister Olof Plame. The photographer managed to get a photo of the suspect, which was then used in the mass media. Another individual then used the photograph as a model and painted a work which he named “Swedish scapegoats”. The painter displayed the painting on the Museum of Modern Arts in Stockholm, published a picture of the painting on his website and sold posters of the painting. The question at dispute was whether the painter had infringed the copyright attached to the photograph.

The question was whether the work was an independent work or an adaptation, which is dependent upon the original work. The Supreme Court briefly compared the two works and did consider that one could, at a first glance, come to a conclusion that the painting would be an adaptation of the photograph. However, there were differences related inter alia to the technique used.

Additionally, the evaluation had to be made based an overall consideration. The Supreme Court held that the painting was indeed to be considered to be  an independent work. The Supreme Court considered the painting to have a different purpose compared to the photograph. The purpose of the painting was not to portray the individual, which was of course the main purpose of the photograph. Rather, the painting was created to critique the general need to have scapegoats in mass media and was also considered to be a commentary of the current times and society. The person depicted was considered a phenomena in the painting and a bearer of the symbolic message expressed by the painting.

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The Italian Competition Authority publishes draft “Guidelines on antitrust compliance” encouraging the adoption of compliance programs

On April 20 the Italian Competition Authority (“AGCM”) launched a public consultation in order to gather comments on its draft “Guidelines on antitrust compliance”.

The document is of huge importance since it provides for the first time the view of the AGCM on how an effective antitrust compliance program should be established and managed. Even more importantly, the draft guidelines show how the Authority will weigh the adoption of compliance programs as a mitigating circumstance at the moment of calculating fines in antitrust investigations. Continue reading “The Italian Competition Authority publishes draft “Guidelines on antitrust compliance” encouraging the adoption of compliance programs”

Reforming EU copyright law through competition enforcement? Waiting for the Commission’s decision in the “Pay-tv” case

These are complicated days for the entertainment industry. While one investigation regarding sports media rights has just been launched by the European Commission, another is coming to an end. I am talking about the so-called “Pay-tv” case, by means of which the Commission is subtly attempting to reform copyright law through competition enforcement. Continue reading “Reforming EU copyright law through competition enforcement? Waiting for the Commission’s decision in the “Pay-tv” case”

EU Commission published “notice to stakeholders” on post-Brexit copyright law

Guest post by William Wortley*

With one year to go until the United Kingdom exits the European Union, the Commission has released a “notice to stakeholders” highlighting that, in the absence of transitional measures, the EU’s copyright acquis will not apply to the UK post-Brexit. While copyright law has not been fully harmonised across the EU, cliff-edge issues such as those contained in the notice have major potential ramifications for both the EU and the UK.

The notice acknowledges that, as signatories to the main international copyright treaties, namely TRIPS and the WIPO Copyright treaties, the UK and EU’s relationship in this field will be governed by these treaties post-Brexit, including the application of the principles of national treatment and most-favoured nation status.

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China to restructure the State Intellectual Property Office

During a recent annual meeting, China’s highest legislature, the National People’s Congress approved a sweeping government restructuring plan. As part of the plan, the State Intellectual Property Office (SIPO), which so far acts as a patent office only, will additionally incorporate the functions of managing trademarks and geographical indications of origin (GIs), which are currently administrated by separate administrative organs. Therefore, in the future, all applications for patents, trademarks and geographical indications of origin in China will be filed at the SIPO, and the SIPO will be responsible for examining and subsequently registering these IP rights. Further, based on China’s existing dual administrative and judicial system for enforcing IP rights, the SIPO will also be in charge of administrative adjudication of disputes involving patents, trademarks and GIs, and supervising their administrative enforcement. Continue reading “China to restructure the State Intellectual Property Office”

The Statement of Patent Working in India – time for a change

Guest post by Preston Richard*

It is that time of the year again in India when the patentee must file an annual statement of working of their every granted patent. The statement has to be filed by the 31st of March each year.

Unique to India, this annual ritual mandated under Art. 146 (2) of the Indian Patent Act requires the patentee (and licensees) to furnish a statement to the extent to which the patented invention has been worked on a commercial scale in India.

Historical background

This requirement stems from the Ayyangar Report (PDF), a policy document drafted in 1959 that forms the basis of the Indian Patent Regime.

While some countries chose to have no working requirement of patents, the Ayyangar Report reasoned that the quid pro quo the society receives in return for the grant of the monopoly could only be ensured if the patent is used for the purpose for which it is granted.  Therefore, the report concluded that for a then under-developed country like India, certain safeguards against patents of foreigners was necessary. This resulted in the principles relating to the working of the patent and the consequences in case of failure being codified in the Indian Patent Act.

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Is this a monopoly? Sailing through IP and competition law

Today we talk about IP, antitrust and sailing. Which is a great occasion to escape the files on your desk and envision yourself enjoying warm winds on emerald water.

Sailing, besides being a wonderful way to stay in touch with nature, is an Olympic discipline sailed on different types of boats: at the moment, the official “Olympic Classes” are Laser, Laser Radial, 49er, 49erFX, RS:X, Nacra 17, 470 and Finn. Olympic Classes are selected by World Sailing, the governing body of this sport, and they are subject (in theory) to periodic review. As a consequence, over the years even glorious boats like Star – which has been part of the Olympic program since its initial editions – have been replaced by fancier and foiling ones.

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Decompiling the rules on trade secrets, software and reverse engineering – the sequel

In my previous post from January last year I discussed reverse engineering in light of the Trade Secrets Directive (“TSD”) as well as the Software Directive (“SD”). I strongly recommend you to review my previous post (here) before reading this piece, since said post lays the foundations for the arguments and considerations discussed below.

The focus of this article will lie on implementation of the provision on reverse engineering in Finnish legislation. A very interesting aspect here is the relationship between trade secrets and copyright, which is why I have chosen to discuss in particular in this post.

Background

As a consequence of the adoption of the TSD, the Finnish Ministry of Economic Affairs and Employment (“MEAE”) assigned a working group to prepare the national implementation of the TSD in Finland. On 18 October 2017, the working group published its recommendation (“Finnish Proposal”) in which it proposes reform and consolidation of the Finnish legislation concerning the protection and civil enforcement of trade secrets. The aim is to enhance the protection of trade secrets by providing effective legal remedies against trade secret misappropriation. In the Finnish Proposal, it is suggested that the TSD would be mainly implemented by a wholly new Trade Secrets Act.

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Final Countdown! New EU data protection law applies as of 25 May 2018

Guest post by Helmut Liebel*

In only a few months, the new General Data Protection Regulation (GDPR) will be directly applicable in all EU member states. The GDPR replaces the 1995 EU Data Protection Directive. For the first time, a uniform, directly applicable EU data protection law is introduced.

 

THE AIM

The GDPR protects personal data of natural persons, such as employees, customers and suppliers. Regardless whether companies (as controllers) process the data of such data subjects in the EU themselves or task processors with this job, in each case they must comply with the GDPR. Continue reading “Final Countdown! New EU data protection law applies as of 25 May 2018”

CJEU (C-179/16, Hoffman-La Roche): infringement of pharmacovigilance obligations may give rise to EU competition law liability

On 23 January 2018, the European Court of Justice (“CJEU”) issued its preliminary ruling in the Hoffman-La Roche case, where it had the chance to address some major issues regarding competition law in the pharmaceutical sector. The request for a preliminary ruling had been referred by the Italian Consiglio di Stato in relation to a cartel case where the Italian Competition Authority had fined Roche and Novartis for a total amount of 180 million euros.

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