|Katfriend Johannes Großekettler|
After becoming an IP enthusiast during his legal studies in Berlin, Johannes decided to study in the LLM in “Intellectual Property & the Digital Economy” at the University of Glasgow. He is fairly busy right now: besides writing his master thesis on 3D printing and working as a research assistant at CREATe, he is also the president of the newly established student IP Society.
The IPKat wishes to thank him warmly for his great work and overall rare generosity, which hugely impressed even Merpel.
- The sale of audio files (audiobooks) over the internet in a way that allows customers to have the opportunity to download and save corresponding files locally on their own data carriers is not covered by the right of distribution within the meaning of § 17 UrhG [it should be instead considered as an act of making available to the public, which is not subject to exhaustion: see §19a UrhG, and also Article 3(3) of the InfoSoc Directive];
- In respect of audio files (audiobooks) or copies thereof, the exhaustion of the distribution right within the meaning of § 17(2) UrhG is not caused if customers are given the opportunity to download and save corresponding files locally on their own data carriers and do so;
- § 17(2) UrhG cannot be applied by analogy to cases in which audio files (audiobooks) are sold over the internet in a way which provides customers with the opportunity to download and save corresponding files locally on their own data carriers;
- The case law of the CJEU (C-128/11) and German Federal Courts (I ZR 129/08) on computer programs, which are sold without allocating physical data carriers in a way that customers are given the opportunity to download and save corresponding files locally on their own data carriers, is neither directly nor in its principles applicable to similar offers of audio files (audiobooks).
|- "Aww, how lovely that you remembered |
- "Ehm, actually, it's the UsedSoft
This would not be the case of videogames, which "constitute complex matter comprising not only a computer program but also graphic and sound elements, which, although encrypted in computer language, have a unique creative value which cannot be reduced to that encryption. In so far as the parts of a videogame ... are part of its originality, they are protected, together with the entire work, by copyright in the context of the system established by [the InfoSoc Directive]".
|Inspecting the |
Software Directive territory?
Should not take too long
- How many times this piece of EU legislation should be applied (from now on), considering that quite a few computer programs - not just videogames - may comprise graphic and sound elements that have a unique creative value?
- Should the answer to the first question be "Not so many", can the Software Directive be considered still meaningful?
- In adopting this interpretation of the Software Directive, did the Court implicitly warned against an extension of the principles expressed in UsedSoft to subject-matter other than "pure" software?