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Tag Archives: CJEU

Posted in Copyright, Intellectual Property

Tom Kabinet: CJEU rules resale of e-books requires permission of copyright holder

The CJEU in its Tom Kabinet judgment has ruled that the supply of e-books qualifies as “an act of communication to the public” under the InfoSoc Directive instead of “a distribution to the public” as is the case with physical books. It follows that copyright  in e-books cannot be exhausted. This means that the resale of e-books requires the authorization of the copyright holders or else violates the author’s or publisher’s copyrights. The same reasoning is expected to apply to all digital formats of copyright protected works covered under the

Posted in Policy & Regulation Photo of Eduardo Ustaran

AG Says ePrivacy Applies to Government Access to Communications Data

On  January 15, the Court of Justice of the European Union’s (CJEU) Advocate General (AG) Manuel Campos Sánchez-Bordona delivered his Opinion on four references for preliminary rulings on the topic of retention of and access to communications data. Of the four references, two originated from France, one from Belgium, and one from the Investigatory Powers Tribunal (IPT) in the United Kingdom. The latter arose from a challenge by Privacy International to the UK Security and Intelligence Agencies’ (SIAs) powers under the Telecommunications Act 2014 and the Data Retention and Investigatory

Posted in Policy & Regulation Photo of Eduardo Ustaran

Getting Cookie Consent Right

One could be forgiven for thinking that knowing how to comply with a legal obligation that has been in place for nearly a decade would be clear cut. However, widespread practice tells us that this is far from the truth. In November 2009, as part of wider reforms to the European telecommunications regulatory framework, the European Union introduced various amendments to the existing Directive 2002/58/EC (‘e-Privacy Directive’), including to the provisions regulating the use of cookies. Since then the e-Privacy Directive has required obtaining the consent of users in order

Posted in Policy & Regulation Photo of Eduardo UstaranPhoto of Katie McMullan

CJEU: Consent on the Internet Means ‘Opt-In’

On 1 October 2019, the Court of Justice of the European Union (CJEU) handed down a crucial decision impacting the way that consent is obtained on the internet. The judgment relates to Case C-673/17 (Planet49 – a previous post outlining the background can be found here). In the Planet49 case, the German Federal Court referred a number of questions to the CJEU regarding the validity of consent to cookies placed by a website operating an online lottery. The questions before the CJEU amounted to the following: 1.  Does a pre-checked

Posted in Copyright Photo of Patrick FromlowitzPhoto of Benedikt Lüthge

20-year legal dispute over two seconds of music: CJEU on the never-ending sampling story

German courts have been dealing with the Metall auf Metall [song by the German band Kraftwerk] case for two decades. Recently, the CJEU, too, has had to deal with the case and ruled by judgment of 29 July 2019 (C-476/17) that unless the phonogram producer consents, sampling constitutes an infringement of his rights. However, the CJEU argued, if, by modifying the sample, it can be ruled out that the content is recognizable, there is no infringement of rights. Background The Plaintiffs are members of the band Kraftwerk, which, in 1977,

Posted in Policy & Regulation

GDPR – The Year in Review

Following the one-year anniversary of the coming into effect of the GDPR, Hogan Lovells’ Privacy and Cybersecurity practice has prepared a compilation of key GDPR-related developments of the past 12 months. The compilation covers regulatory guidance, enforcement actions, court proceedings, and various reports and materials. Regulatory Guidance Guidelines 3/2018 on the territorial scope of the GDPR (Article 3) (25.11.2018) – The EDPB confirmed the existing approach to the ‘establishment criterion’ for the application of the GDPR and introduced a ‘targeting criterion’, where the processing is related to the offering of

Posted in Copyright, Intellectual Property, Policy & Regulation Photo of Alastair ShawPhoto of Penny ThorntonPhoto of Winston MaxwellPhoto of Morten PetersennPhoto of Alberto BellanPhoto of Anne SchmittPhoto of Benedikt Lüthge

DSM Watch: Navigating Article 13 (now 17) of the Copyright Directive

On 26 March 2019 the EU Parliament voted to pass the draft Copyright Directive (“Directive”) into EU law.  After adoption by the EU Council (representatives of Member State governments) and official publication, the EP’s adopted text will become EU law. Member States will then have until mid-2021 to implement it into their national laws. DSM Watch has already overviewed the whole Directive here, and looked at Article 11 on a new press publishers’ right (re-numbered Article 15 in the adopted text) here. Now we take a deeper dive into the heavily debated

Posted in Data Protection & Privacy, Policy & Regulation Photo of Winston MaxwellPhoto of Christine Gateau

An Approach for Setting Administrative Fines Under the GDPR

Article 83 of the GDPR provides for two levels of administrative fines: a lower level – maximum of €10 million or 2% of the global turnover – for violations relating to record-keeping, data security, data protection impact assessments, data protection by design and default, and data processing agreements; and a higher level – maximum of €20 million or 4% of the global turnover – for violations relating to data protection principles, the legal basis for processing, information to data subjects, the prohibition of processing sensitive data, denial of data subjects’

Posted in Copyright Photo of Lea Kaase

Provider liability: First YouTube, now “uploaded” – next case before the CJEU

Only two weeks ago, the Federal Court of Justice (BGH) referred various questions to the Court of Justice of the European Union (CJEU) concerning the liability of the video platform YouTube. There, the court’s queries focused on who is actually responsible for unlawfully uploaded content – just the uploader himself or the service provider as well? Last week, the German judges yet again sat over a case dealing with this issue. Once again they decided to initiate preliminary proceedings before the CJEU in Luxembourg (see the decision of 20 September

Posted in Copyright Photo of Alastair ShawPhoto of Penny Thornton

A second market for “used” e-books – CJEU will decide

Ever since the European Court of Justice (CJEU) in its highly regarded UsedSoft ruling declared the resale of “used” software admissible (dated 3 July 2012, C-128/11), the discussion has persistently centered around the question whether the idea of the so-called exhaustion, upon which UsedSoft is essentially based, could or should be extended to other digital content – such as e-books. The principle of exhaustion states that the resale of works or copies thereof within the European Economic Area (EEA) is permitted without the consent of the rights holder, provided that

Posted in Data Protection & Privacy, Internet, Policy & Regulation Photo of Christine GateauPhoto of Christelle CoslinPhoto of Pauline Faron

First views from the CJEU on how to build a consumer collective action in the Schrems v Facebook Ireland case: The concept of “consumer” and lack of jurisdiction of the consumer’s home court over assigned claims

The famous case brought by Maximilian Schrems against Facebook Ireland in Austria, aimed to become an international and large data protection class action, led on 25 January 2018 to a ruling from the CJEU on two main points: A consumer’s right to have a claim heard in his or her home court under European law does not extend so as to confer jurisdiction on that same court where claims have been assigned by other consumers domiciled in other countries. One should be regarded as a “consumer” in the context of

Posted in Copyright, Entertainment & Content Photo of Penny Thornton

CJEU rules on Cloud Recorder: Transmission constitutes a communication to the public that requires the right holders consent

On 29 November 2017, the European Court of Justice (CJEU) handed down a decision on a video recording service that stores TV programmes online in a cloud (C-265/16 – VCAST). According to the Court, the cloud recording service has a dual function that enables its users to create reproductions on the one hand but also makes copyright protected works publicly available on the other. The means by which the TV program is communicated to the public differs from the means of the original transmission. Therefore, the transmission constitutes a communication

Posted in Copyright Photo of Eva Vonau

CJEU to rule on press publishers’ neighbouring right

With decision of 8 May 2017, the regional Court of Berlin referred to questions for preliminary ruling to the Court of Justice of the European Union (CJEU). The court is concerned whether the rules on the press publishers’ neighbouring right – as implemented into German copyright law in 2013 – were properly enacted back then. Specifically, the judges wish to receive some indication and guidance on whether the German legislator should have notified the European Commission in accordance with the Directive 98/34/EC laying down a procedure for the provision of

Posted in Copyright, Entertainment & Content Photo of Penny ThorntonPhoto of Eva Vonau

CJEU rules on sale of multimedia players with add-ons to illegal streaming websites

There is no end in sight regarding CJEU decisions on the meaning of “communication to the public“. On 26 April 2017, the European Court of Justice (CJEU) ruled (C-527/15 – Filmspeler) that the sale of a multimedia player with pre-installed add-ons that contained links to illegal streaming websites constitutes a copyright infringement. At the same time, the court clarified that the exemption for acts of temporary reproduction under Article 5(1) of the InfoSoc Directive 2001/29 did not apply. The Case The case was referred to the CJEU by a Netherlands

Posted in Copyright Photo of Penny Thornton

EU Advocate General in favour of finding copyright infringement by indexing site The Pirate Bay

The cases that deal with the meaning of “communication to the public” continue: in a current reference for a preliminary ruling, the European Court of Justice (CJEU) will have to decide whether the operators of websites that index content available on peer-to-peer (P2P) networks, such as The Pirate Bay, infringe copyright when there is no actual content on the website. On 8 February 2017, the Advocate General advised the CJEU to find copyright infringement by indexing websites but only where they have actual knowledge of the illegality and take no

Posted in Data Protection & Privacy Photo of Eduardo UstaranPhoto of Victoria Hordern

The CJEU Gives the UK Government Another Brexit Dilemma

In yet another key case dealing with the balance between citizens’ privacy and the ability of the state to intrude into it, the Court of Justice of the European Union (CJEU) has ruled on the compatibility with European Union law of legislation that authorises the retention of communications data, which includes personal data. The reference from the UK Court of Appeal resulted from a challenge to the Data Retention and Investigatory Powers Act 2014 (DRIPA) brought by individuals that include Tom Watson, deputy leader of the Labour Party and represented

Posted in Copyright, Entertainment & Content Photo of Eva Vonau

CJEU: Exceptions of InfoSoc do not cover out-of-commerce works

Is it permitted to reproduce out-of-commerce works and make them publicly accessible under European copyright exceptions? So far, there is no explicit regulation at European level dealing with out-of-commerce works. However, a few member states, including Germany, have already complemented their copyright by way of introduction of new provisions governing the use that one can make of out-of-stock works. In simple terms, national legislators mainly understand such works as works not being commercially available anymore. The respective provision in French law has recently been subject to the European Court of

Posted in Data Protection & Privacy Photo of Eduardo UstaranPhoto of Bret CohenPhoto of Katherine Gasztonyi

Details of Legal Challenge to Privacy Shield Revealed

Ever since the first draft of the EU-US Privacy Shield framework was published in early 2016, groups opposed to the idea have indicated their intent to challenge the legality of the framework under EU law. Recently, the privacy advocacy group Digital Rights Ireland (DRI) made good on that promise.  Following the filing of a formal complaint on 15 September asking for an annulment of the framework by the Court of Justice of the European Union (CJEU), DRI has now made public the details of its complaint. In the complaint, DRI

Posted in Copyright, Entertainment & Content Photo of Eva Vonau

CJEU: Landmark decision on digital lending of e-books

On 10 November 2016, the European Court of Justice (CJEU) rendered a landmark decision on the lending of e-books. Public libraries may rely on statutory copyright exceptions when lending out e-books and are not required to obtain a contractual license explicitly covering such e-lending right. With its decision, the CJEU applies the same legal principles to e-books that already govern the lending of physical books. However, the equal treatment of both only takes place where the lending schemes are comparable, meaning that multiple access to the same digital publication at

Posted in Data Protection & Privacy Photo of Eduardo Ustaran

The Ever-Expanding Concept of Personal Data

The Court of Justice of the European Union (CJEU) has ruled that dynamic IP addresses are capable of constituting personal data under certain circumstances, ending years of speculation about whether such essential building blocks of the Internet qualified for protection under the EU Data Protection Directive. In Patrick Breyer v Bundesrepublik Deutschland, the German Federal Court referred two questions to the CJEU in a case brought by Patrick Breyer, a member of the Pirate Party. He challenged the collection and use of dynamic IP addresses (binary numbers assigned by Internet

Posted in Copyright, Entertainment & Content Photo of Eva Vonau

EU: Advocate General comments on radio and TV in hotel rooms

Guests entering hotel rooms expect to be able to turn on the TV or listen to the radio. Accordingly, TVs and radios feature in almost any hotel room around the world. However, this commodity has been the trigger for numerous legal disputes in recent years. As always, the quarrel is about money. In this post we look at proceedings which question whether a hotel in Austria with TV and radio in its rooms is liable to pay remuneration to the competent collecting society or not. Ultimately, this depends on the

Posted in Copyright Photo of Eva Vonau

CJEU renders next landmark decision – this time on free Wi-Fi

So far, September has been a busy month in Luxembourg. On 8 September 2016, the Court of Justice of the European Union (CJEU) handed down a ground-breaking judgment on hyperlinking (Case Ref.: C-160/15 – GS Media, see our earlier post). On 15 September 2016, this equally important verdict followed (Case Ref.: C-484/14 – McFadden). The judges had to decide upon the liability of an access provider who offered his customers a free Wi-Fi connection in his shop. A customer had used the connection to illegally upload and share copyright-protected content.

Posted in Data Protection & Privacy Photo of Julie BrillPhoto of Bret CohenPhoto of Eduardo UstaranPhoto of Harriet Pearson

Privacy Shield Receives Final Approval from European Commission—Some Initial Practical Advice

On 12 July 2016, the European Commission issued its much awaited “adequacy decision” concerning the Privacy Shield framework for the transfer of personal data from the EU to the U.S. This adequacy decision is based on the latest version of the Privacy Shield, which was further negotiated and revised following the Article 29 Working Party’s April 2016 concerns with the terms of the original Privacy Shield framework. Many of our clients have questions about Privacy Shield—what it is, when it will be available for use, and how it differs from

Posted in Copyright, Digital Single Market (EU) Photo of Eva Vonau

Advocate General comments on lending of e-books

Will the lending of e-books be governed by the same rules as the lending of “classic” printed books? This is an important question that public libraries and others are eagerly trying to get answered in Europe. The Court of Justice of the European Union (CJEU) currently is sitting over a case that deals with exactly this query. At the heart of the topic is the fact that lending e-books requires an act of reproduction, which does not occur when lending a printed book. In consequence, it is argued that the