For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Sunday, 21 December 2014

The Story of "Oh": successful sample for Jay-Z, but so Tuf for the plaintiff

Sampling of musical recordings is a topic that excites a lot of people in the United States, where the bulk of the world's litigation on that subject appears to have taken place. This Kat is all in favour of it and thinks it's part of the creative process, so long as it's not a substantial copying or one which is providing a market substitute for the sampled work -- but he knows that others have strong views to the contrary. In this guest blogpost, Shalini Bengani writes about a recent piece of US litigation in which she considers the court reached the right result: 
Jay-Z’s lawyers must be having a busy time, because celebrated rapper and record producer has been embroiled for quite some time in intellectual property law suits (see eg my earlier guest Katpost here).  but this recent item has brought him some comfort. TufAmerica Inc v W B Music Corp 13-cv-7847(LAK), heard by the US District Court for the Southern District of New York, had to decide whether Jay Z’s alleged sampling and use of the syllable “oh” in an audio recording and music video entitled Run This Town  amounted to copyright infringement. Sampling, as we know it, is the incorporation of previously recorded works of others into new musical compositions. The sample can be as small as a single note or beat, or may be a longer phrase or musical passage.

Tracks at issue 
TufAmerica acquired the rights to Hook and Sling in 1996. The Hook & Sling master begins with Eddie Bo calling out “Are ya ready?” A group responds “Yeah!” At 0:03, Bo calls or shouts “oh!” and then “one, two, a-one, two, three, four.” Percussive music then begins, followed by more lyrics and a guitar melody with bass support. TufAmerica claimed that Run This Town used an unlicensed sample from Eddie Bo’s 1969 funk composition Hook and Sling – Part 1, seeking back-royalties and damages. It would be pertinent to mention here that TufAmerica had previously sued Kanye West for sampling the same song. 
 The allegedly infringing work Run This Town bears very little and perhaps no similarity at all to Hook & Sling Part  I . The melody and lyrics are entirely different. The lyrics do not contain the word “oh.”  The alleged “sample” of that word, which appears in Jay-Z’s recording and video 42 separate times, features only in the background and in such a way as to be audible and aurally intelligible only to the most attentive and capable listener. Qualitative and quantitative significance In considering whether two works are substantially similar, the court had to examine whether the copying went to trivial or substantial elements of the original work, asking whether the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred.  
Cat and hook ...
The defendants averred that neither the word “oh” nor its performance were sufficiently original to be protectable. ‘Oh’ is a commonplace word and, standing alone, it likely is not deserving of copyright protection.  Indeed, the plaintiff’s counsel had themselves conceded that their clients’ composition claims were “extremely weak”; the court agreed. The word “oh” featured only once (if it featured at all) in the introductory lyrics to Hook and Sling Part 1 and there is nothing inherently important about “oh” in the message conveyed or the theme presented in the composition. Accordingly the court held that the relevant works bore no substantial similarity to one another. Moreover, the word “oh” has no quantitative significance to Hook & Sling Part 1 or to the master, as the sampled portion constituted only a fraction of a second in a recording that was about 2 minutes 35 seconds long.  
The court also held “oh” to be qualitatively insignificant. Judge Lewis A. Kaplan was not swayed by the plaintiff’s counsel’s assertion that the sampled lyric “oh” served as the introductory gateway to the main body of the song, that it set the exuberant tone for the remainder of the work and that, without Eddie Bo’s “loudly-shouted, buoyantly exuberant ‘Oh!’, the Hook & Sling master “would be materially diminished”. The court instead held that the master would not have suffered if “oh” had been replaced by any of the host of monosyllabic or duo syllabic utterances. Indeed, “oh” could have been pmitted entirely without altering the essence of Hook & Sling Part I or Eddie Bo’s performance. 
 Substantial similarity test 
In the US, the ‘substantial similarity’ test (and, in the UK, ‘substantial use’) is the touchstone for finding infringement of a musical work. First, and most importantly, the substantial similarity test in all cases considers only the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole. Its significance to the defendant’s work is irrelevant. The fact that the defendants allegedly sampled “oh” 42 times in Run This Town says absolutely nothing about the recording’s qualitative significance to Hook & Sling Part I or to Eddie Bo’s performance in the Hook & Sling Master. The court held that the alleged sampling of “oh” in Run This Town is sufficiently de minimis and is barely perceptible in the allegedly infringing works. Judge Kaplan explained that the plaintiff wrongly assumed that every copying of any part of another artist’s protected work is infringement. He quoted Judge Newman of the Second Circuit, who stated that factual copying and actionable copying are not coextensive concepts. Factual copying requires only the facts that the infringing work copies something from the copyright work, whereas actionable copying requires that the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement has occurred. Here, therefore, the plaintiff had erroneously conflated factual and actionable copying. 
The leading US decision on copyright infringement of sound recording in respect of  music sampling is Bridgeport Music, Inc. v Dimension Films 410 F.3d 792 (6th Cir. 2005), in which the Sixth Circuit held that the unlicensed sampling of a sound recording constituted per se infringement and therefore a two-second sample from Funkadelic’s “Get Off Your Ass and Jam” was held to infringe the band’s copyright in NWA’s “100 Miles and Runnin’”. The present decision has however reached the opposite conclusion, finding that a sample with a duration of a fraction of a second was de minimis or trivial copying which does not constitute actionable infringement.

This decision should receive plaudit for slamming the door on “sample trolls” like TufAmerica that acquire recordings and then use music-parsing technology to seek out famous artists to sue. This decision should therefore give reason for many sampling artists to rejoice. But for how long will the celebrations last, at least for Jay-Z?  It has now been reported that a Hungarian folk singer, Mitsou, has accusing Beyoncé and Jay Z of ripping off her old hit “Bajba, Bajba Pelem", this being a folk tune passed on to her by her grandmother. 
Katpat to Chris Torrero for providing the original link

Song without words here

Friday, 19 December 2014

Can You Make a Porcelain Sculpture Out of a Sow’s Ad?

French newspaper Le Figaro reported this week that ad man Frank Davidovici is likely suing artist Jeff Koons for plagiarism.

The Centre Pompidou in Paris is now showing a retrospective of Jeff Koons’ work. Among them is Fait d’Hiver, a porcelain sculpture representing a pig looking at the torso of a woman lying in the snow. The woman is rather scantily dressed as her bare chest is visible through her fishnet top. Her body has been cut below her breasts, along with her left hand, which lies separated from her body on her left side. The pig, a rather plump, but very clean and pink specimen, has two penguins as companions. He carries around his neck a garland of flowers and a barrel, such as those used by Saint Bernard dogs to rescue people lost in the snow.

The title of Koons’work refers to the tragic event it depicts and is a play on words: “fait divers” means “news in brief,” that is, the police blotter which informs us about crimes happening in our country or our area. “Fait d’Hiver” literally means “winter fact,” and is a good choice for a work depicting “news in brief” (was this woman killed?) which probably happened during the winter.

Fait d’Hiver is also the title of a 1985 Naf Naf ad, which also represents a woman lying in the snow, eyes wide open. One cannot see her body below her torso, and only her right hand and arm are seen in the ad. She is dressed in a ski jacket, a Naf Naf Doudoune, which was the outfit favored by many French women during that nasty cold 1985 winter. A piglet is seen on the right of the ad with a Saint Bernard barrel around its neck, and the ad bears the Naf Naf slogan: Le Grand Méchant Look (The Big Bad Look), which is a play on words with “Le Grand Méchant Loup” (The Big Bad Wolf). Indeed, Naf-Naf is the French name of one of the three pigs which Big Bad Wolf would like to eat in the Walt Disney cartoon (the French names of the other two pigs are Nif-Nif and Nouf-Nouf, should you care to know).
Meow-Meow Explains: A Parody Must Be Funny! 

Naf Naf is a French clothing company which had its moment of glory in the Eighties, building its success on its combinaison, an overall sold all wrinkled and available in many colors with the Naf Naf logo stamped in black on the side of the chest. These combinaisons sold in the thousands in the 80’s, and Naf Naf used the success of this model to build a retail empire. Frank Davidovici started creating Naf Naf ads in 1984, mixing the Le Grand Méchant Look slogan with pictures of a pig mingling with a fashion model shown in a bizarre situation.  

According to the Le Figaro article, a bailiff took several pictures of Fait d’Hiver last week in Beaubourg, a move which seems to anticipate the filing of a complaint for plagiarism. What could be Jeff Koons’ defense? He unsuccessfully claimed fair use when sued for copyright infringement in the U.S. in 1992, but won a somewhat similar case in 2006. Could he be as successful in France?

French law does not have a fair use defense as comprehensive as the U.S. one, but article L. 122-5 of the Intellectual Property Code enumerates several uses of a protected work which the right holder cannot oppose. “The parody, pastiche and caricature, observing the rules of the genre” are among these exceptions. One should note that this article is similar to article 5(3)(k) of the InfoSocDirective (“use for the purpose of caricature, parody or pastiche.”)

French judges consider a parody to be a transformative work created to make the public laugh, or at least smile. There must be no confusion possible with the original work and the public must understand that the derivative work was created as a parody, that is, to mock to original work. This is consistent with the recent CJEU Deckmyn case, commented on this blog by Eleonora here.

The CJEU held that the concept of parody is an autonomous concept of EU law and must be interpreted uniformly throughout the European Union. For the CJEU, a parody’s essential characteristics are “to evoke an existing work, while being noticeably different from it” and “to constitute an expression of humour and mockery.”
  
The hurdle Jeff Koons may have to face is to prove that the original 1985 ad is still remembered in such a way that, when seeing the Fait d’Hiver sculpture, the public recognizes it as a parody of the Naf Naf ad. The sculpture was created in 1988, three years after the original ad. It will be interesting to see if Jeff Koons will try to prove knowledge of the ad by the general public at the time of the creation of his work, and further argue that current knowledge of the ad is irrelevant for purpose of deciding if his work is a parody. 

Image courtesy of Flickr user Barbara Müller-Walter under a CC BY-ND 2.0 license.

Battistelli and Kongstad respond to EPO criticisms

Managing Intellectual Property has just published an article containing a series of questions and answers, put by Managing Editor James Nurton to EPO President Benoit Battistelli and Chariman of the Administrative Council, Jesper Kongstad.

The questions relate to the recent events leading up to and following the AC meeting covered at length on this blog, and cover topics such as staff unrest, union representation, the independence of the Boards of Appeal, and the allegations that a "reign of terror" exists. The answers provide an insight into the response of those at the top of the EPO management to the criticisms levelled at the organisation.

In the spirit of the current festive season and in view of its importance, Managing IP has made the article free to view. In the spirit of brevity, Merpel will refrain from comment at this time and leave it to her readers to do so.


Friday fantasies

Forthcoming events. Plenty fresh events have been added to the IPKat's Forthcoming Events page in recent days, including a three-week course (13 to 31 July 2015) entitled "International IP Transactions: Practical skills and industry insights" run by UC Hastings together with Bucerius in Hamburg, Germany. Details of that course can be found here.


EU numbering: more changes to come.  With many intellectual property practitioners still in a state of ignorance or denial of this summer's changes to the means of citation of legal cases [on which see earlier Katposts here and here], there is more bad news to come -- though for the efficient and the tidy-minded this news is more likely to be welcomed.  From 1 January 2015, the numbering of European Union legal acts will change and a new method attributing numbers to documents published in the L series of the Official Journal will harmonise and simplify the divergent previous practices. Better still, EU legal acts will bear unique, sequential numbers. For a fuller explanation, just click here for the information provided by the EU Publications Office, or here to complain to the EUR-Lex Helpdesk ...


Around the weblogs. "When is the UK public targeted by an infringing website?" is a question posed, analysed and answered, by Kevin Bercimuelle-Chamot in this guest post on the 1709 Blog. Meanwhile, on the PatLit blog, David Berry reports on yet another patent case that the US Supreme Court is happy to hear, Kimble v Marvel Enterprises, which will revisit the rule in Brulotte v Thys and the endearing practice of extracting royalty payments from a licensee after the patent has expired (this patent involves a Spiderman toy, if you were wondering).  Finally Class 46 tells us that the Trilogue over the reform of European trade mark law has taken an early Christmas break and won't be reconvening till January ...


New website for EU case law. Hakim Stijn (fieldfisher) has been in touch with us, to let us know about a new website, IPcuria.eu, which provides easy access to the many IP cases decided by the Court of Justice of the European Union. Naturally, it's free -- and it may prove pretty handy for anyone wanting to check out the latest rulings or referrals to Europe's top court but who lacks the patience to plough through the clumsy structure of the Curia website in order to do so.


Books for sale! The IPKat's friends at Euromoney (publisher of Managing Intellectual Property magazine) are moving out of their cosy Blackfriars offices to new premises off London's historical Fleet Street.  In consequence, explains Katfriend and MIP editor James Nurton:
"We have to clear our shelves so we've decided to auction some of the IP books we have to raise money for our charity partner AMREF. Some of the books are old editions and/or review copies but we thought they might be of interest to some lawyers/ academics/ students. Anything you can do to spread the word would be much appreciated -- we have to shift them by 24 December and they should all be listed here on eBay".
 The books are arranged in four lots.  The buyer must collect them from 69 Carter Lane, or James will hand deliver them locally in return for a cup of tea.


Biogen v Medeva again. Back in October the Kat's friends at Rouse organised a lovely little event to commemorate the 20th anniversary of Biogen v Medeva, one of the most influential patent law decisions to have been handed down by the UK's House of Lords (now rebranded the Supreme Court, but we still know who they are ...).  Alas, this event was scuppered by industrial inaction on the part of London Underground transport workers -- but the good news is that it has been rescheduled for the same venue on Thursday 5 February (see link above). It's free but you still have to email Tim Coppen here to tell him that you'd like to attend.


LinkedIn round-up. Katfriend Lee Curtis has asked the Kats to remind readers of HGF's three well-managed and increasingly well-patronised LinkedIn Groups. They are Fashion+IP (founded by Rebecca Field, dedicated to IP in the fashion sector and now with getting on for 3,400 members), Retail+IP (dedicated to IP in the retail sector) Automotives+IP (dedicated to IP in the automotive sector)  All are quite well policed to avoid spam postings and this Kat, who is a long-term member of all three, has frequently found them very useful).

Externalities and innovation: let me count the Waze

In a world obsessed with innovation and start-ups, we tend to forget that that are both costs as well as benefits that may ensue from such developments. Perhaps the most palpable example is the potential threat of innovation to current employment patterns, particularly in the so-called developed world. It is not merely that buggy-whips are replaced by the motor car, but that technological advance may lead to a decline in the overall rate of employment as fewer and fewer employees are required and jobs that require lower skill levels disappear. A further consequence of successful innovation is the matter of negative externalities. The problem of externalities tends to be ignored, much to our collective peril, as we fail to appreciate the full impact of what appears to be a world-beating innovation which, on the face of it, only betters our lives.

First a word about “externalities”. As developed by the economists, the notion refers to either “a cost or benefit that affects a party who did not choose to incur that cost or benefit.” As further observed by Wikipedia,
“unregulated markets in goods or services with significant externalities generate prices that do not reflect the full social cost or benefit of their transactions: such markets are therefore inefficient.” 
The example often brought is air pollution, where the damage caused to people, crops and buildings was for a long time not taken into account in assessing the economic contribution of manufacturing. But negative externalities are not limited to smoke stacks and traditional economic activity.

A graphic example of externalities in the context of innovation was well described in an Associated Press piece that appeared earlier this week. Entitled “LA Traffic is Getting Worse and People Are Blaming the Shortcut App Waze”.  Written by John Rodgers, the article recounts how mass use by drivers of the Waze smartphone app for finding the most efficient route to one’s destination is apparently responsible for severe traffic congestion on various side streets in the Los Angeles area that lie along one’s particular Waze-directed car route. For those Kat readers who may not be familiar with Waze, it is an Israeli-developed GPS-based geographical navigation application program for smartphones with GPS support and display screens which provides turn-by-turn information and user-submitted travel times and route details, downloading location-dependent information over the mobile telephone network. Most notable is that “Waze differs from traditional GPS navigation software as it is a community-driven application which gathers some complementary map data and other traffic information from users.” In the words of the AP article, Waze has become “explosively popular” and it is said to be the leading technology of its type.


The problem is that while Waze may succeed in reducing one’s commute, too often the recommended route appears to be taking drivers along previously sleepy LA back roads, much to the anger of local residents, who now confront traffic jams abutting their front yard. The result is described as “a parade of exhaust-belching, driveway-blocking, bumper-to-bumper cars.” A game of cat and mouse has ensued. On the one hand, some local residents have tried to tilt the technology by reporting false accidents. In reply, a Waze spokesperson simply observed that the technology “can’t be outsmarted.” Given the persistence of neighbourhood traffic jams, it would seem that Waze still has the upper hand. What seems undeniable is that one driver’s personal Waze-directed victory is, in the aggregate, the cause of a collective loss of time for neighbourhood drivers suddenly facing traffic jams. In other words, the wild success of Waze has brought about a negative externality for these unfortunate Angelinos. Never was the characterization of negative externalities, by such giants as Milton Friedman and Friedrich Hayek, as “neighbourhood effects”, more spot-on.

What are we to make of this situation? One cannot seriously entertain the suggestion that Waze be shut down. After all, the technology is not breaking the law even as it has improved the lives of countless drivers as they shorten their daily commute to work. In this sense, Waze is not Aereo, which also brought low-priced contents to home viewers, but was ultimately found to be in violation of the copyright laws. Solutions to at least reduce the cost of the negative externalities associated with the use of Waze are being pondered, such as speed bumps, four-way stop signs, and even a reduction in the number of lanes (a so-called “road diet”), but these measures must be thoroughly studied. More generally, the saga of Waze and the side streets of LA points to the fact that our conversation about innovation tends to ignore the cost side of the equation. As such, it can be argued that, until these externalities are adequately accounted for, innovators may be overcompensated for their developments at the expense of the cost being borne more generally by the broader society.

More on Waze here and here.

Thursday, 18 December 2014

A Kat's 2014 Copyright Awards

It's Katwards day!
With the holidays and end of the year quickly approaching, it seems about time to think of what has been and what will be next in the world of the greatest IP right, ie copyright. 

Like last year, this Kat has decided to review the copyright year, and award a number of [symbolic] prizes to the most relevant developments occurred in 2014. Overall it would seem that in 2014 Europe was the place to be, copyright-wise.

So here we go:


Most important copyright decision

This Kat has little doubt: like it or not, it has been the decision of the Court of Justice of the European Union (CJEU) in Svensson [here and here; the Court confirmed its value as a precedent a couple of months ago in its quick order in BestWater].

It has to be said that this judgment has left many disappointed [starting with the Association Littéraire et Artistique Internationalesee here], also because it has probably raised more issues than those it solved. 

In particular, the 'new public' criterion may not appear that straightforward to both understand and apply. Surely there may be some subjective connotation in determining "the public taken into account by the copyright holders when they authorised the initial communication." The question is: how can those who provide links be sure about the intention of the relevant righholder? 

Although it could not be an exaggeration to suggest that one may surely link but do so at his/her own peril, it is hard to think of a case that had a higher potential to affect our daily activities over the internet than Svensson

In this Kat's opinion, surely PRCA (the case about the lawfulness of internet browsing) did not have the same importance as Svensson, notably because at the time of referring it to the CJEU [here], the UK Supreme Court already appeared (rightly) confident to say that, no, you don't need permission to browse the internet.


Most important piece of legislation

Well, this is kind of difficult category to fill in, since this Kat is under the impression that 2014 has not been really busy for copyright legislators.

To be honest, not much has happened in the US, EU and Australia, where most time has been devoted to policy discussion and consultations [hereherehere and here] instead. 

As regards Europe, next year promises to be more exciting: EU Commissioner for Digital Economy and Society, Günther Oettinger, announced that his first initiative will be new copyright legislation. He also added that such legislation "should only cover what no longer works national level". This Kat found this statement a bit hard to understand. IP is an area where the EU and Member States share competences, so surely any initiative at the EU level must comply with the principles of subsidiarity and proportionality?? Anyhow, let's try not to be too pedantic and wait for new developments which, if this Kat had to guess, will concern issues such as private copying levies and licence segmentation, including geoblocking. 

Overall, it would seem that the most exciting place to be in 2014, copyright legislation-wise, was the UK. This was not just because a number of secondary instruments were adopted following the Enterprise and Regulatory Reform Act 2013eg the orphan works licensing scheme, but especially due to the introduction of new exceptions into the Copyright Designs and Patents Act (CDPA).

If this Kat had to choose a particular exception she would go for one of the completely new ones, notably parody, caricature and pastiche. This is for no particular reason if not that fair dealing with a pre-exisiting work for these reasons should not be considered an infringement in the first place. So this Kat is glad that the UK eventually acknowledged that, too.


Mr Justice Arnold
Copyright person of the year [new category!]

This is a new category aimed at acknowledging the contribution of a particular person to copyright law, policy and debate. After wondering whether Taylor Swift could be the copyright woman of the year due to her anti-Spotify public engagement, this Kat thought that there might be someone else who has contributed more to copyright than her this year. 

This person is The Hon Mr Justice Richard Arnold, and is so for a number of reasons which are not limited to all his Arnoldian IP references to the CJEU.

A couple of days ago this Kat wondered whether 2015 would be the year of blocking injunctions. There is probably no other judge who has looked into this issue as thoroughly and seriously as Arnold J has done. Reading something like the judgment in Cartier [here and here] is an antidote to many shabby policy and lobbying briefs that have been circulated lately [see further below in relation to this]

In addition, Arnold J contributed with some (much needed) rational analysis to the debate surrounding both the need for an overhaul of the CDPA and how a good copyright act should be drafted [so this is not just something that concerns the UK]. He did so in the context of the 2014 Herchel Smith Intellectual Property Lecture [see John's report here]. The editors of the Queen Mary Journal of Intellectual Property have informed this Kat that the text of the lecture will be featured in 2015's Issue 2 of the Journal.


You "purchased" this ebook and
- thank goodnees -
you have found your cat:
can you resell the ebook?
Most important unresolved issue

This probably concerns digital exhaustion: can you resell your ebooks, videogames, iTunes tracks? 

Following the 2012 decision in UsedSoft [see here for a Katpoll], debate has ensued as to whether the conclusions that the CJEU achieved under the Software Directive could be extended to the InfoSoc Directive

A number of contrasting approaches have been adopted at the national levels: on the one hand German courts have held the view that, no, there is no digital exhaustion under the InfoSoc Directive; on the other hand, a Dutch court has found that, yes, there is digital exhaustion under the InfoSoc Directive.

In its leaked draft White Paper [here], the previous EU Commission stated that policy initiatives regarding digital exhaustion are still premature [this somehow echoes the state of the debate in the US]. However, if no hints will be provided at the policy and legislative levels, do not despair! The CJEU decision in Art & Allposters is awaited soon: it will be interesting to see if the Court follows the Opinion of Advocate General Cruz Villalon [here, not yet available in English!], and holds that there can only be analogue exhaustion.


Most important policy issue for 2015

This Kat thinks it is blocking injunctions, for the reasons given here.


If only some copyright commentators
were this cute and polite!
What this Kat liked the least

What this Kat is about to say is sadly not limited to 2014, but nonetheless featured prominently during this year. 

It is the despicable partisanship employed in the arguments advanced by a number of vocal characters in the copyright debate. Really, sometimes you attend events aimed at copyright professionals and you hear arguments presented in such gross bad faith, that you wonder whether these, rather than attempts to react to their counterparts' arguments, are plain attempts to offend human intelligence.

This Kat is not going to name and shame because it would be neither elegant nor Christmas-y. However, she is a bit bored  to keep reading accounts on one side or the other about any new copyright developments being either "a serious threat to human rights and user freedoms" or "something that undermines the vary basics of copyright protection, with the result that creators are now starving in the streets".

To people who care about copyright (in one way or another) these arguments sound fairly shabby. Yet, those who advance them feature prominently in the copyright landscape, if not - and quite incredibly to be honest - in the policy-making arena.

Can some civilisation be brought back into the copyright debate at all?

A different Interview,
still starring James Franco
though 
Most important copyright-protected work

In copyright terms this is probably The Interview, and not just because this Kat has always been a huge fan of James Franco. 

As readers will probably know already, this film is about a fictional plot to kill North Korean supreme leader Kim Jong-un.

Sony cancelled the planned US release on 25 December, following both threats of violence and 9/11-like terrorism by the same hackers who carried out a cyber attach on Sony, and the announcement by the five biggest cinema chains in the US, operating 20,000 screens between them, that they would not show the comedy.

Not only did Sony cancel the New York premiere, but also announced that it has no further release plans for the film (which cost $42m), including video-on-demand.

Yet, Netflix may rescue The Interview from cyber-bulling by purchasing it, as Quartz advocated. Of course the challenge would be for Netflix to see if there is any value left in something that has been disseminated over the internet already.

The reasons why this film is the most important copyright-protected work of 2014 is because it reminds us of the importance of freedom of expression (which in this Kat's opinion is not antithetical at all to copyright protection), but also that exploitation of a work is no longer bound to a unique solution, eg cinema screening, but that new forms, eg internet streaming, are available as well. 

Instead of focusing so much on cinema screening or waiting for a hypothetical Netflix deal, Sony could do better and make the film available online for people to watch in the safety of their homes.

What does this suggest? That online copyright is not just about enforcement but also - and perhaps most importantly in a case like this - being able to develop new business models that could help you exploit differently your own works and react quickly to a dramatic changes of circumstances. Overall it is a new world of possibilities: go and seize them, as beloved Robin Williams (who sadly died this year) suggested in a most moving film.

BREAKING NEWS: breakfast ruling on unfertilised eggs

Ova and out! "AG Villalón's parthenotes Opinion in IMC could provide stem cell research certainty (at least for now...)" was the title of a helpful note by Shohta Ueno (an Associate with Allen & Overy's IP Litigation team in London) on the first stage of the Court of Justice's ruling in Case C-364/13 International Stem Cell Corporation v Comptroller General of Patents. This case, following a reference for a preliminary ruling from Henry Carr QC, sitting as a Deputy Judge in the Patents Court, England and Wales, seeks guidance on the following question:
Are unfertilised human ova whose division and further development have been stimulated by parthenogenesis, and which, in contrast to fertilised ova, contain only pluripotent cells and are incapable of developing into human beings, included in the term "human embryos" in Article 6(2)(c) of Directive 98/44/EC on the legal protection of biotechnological inventions?
This morning the CJEU ruled that:
"... in order to be classified as a ‘human embryo’, a non-fertilised human ovum must necessarily have the inherent capacity of developing into a human being. Consequently, the mere fact that a parthenogenetically-activated human ovum commences a process of development is not sufficient for it to be regarded as a ‘human embryo’".
The Curia media release is here. More Kat comments to follow ...

The independence of the Boards of Appeal: Merpel roars again

Still troubled by goings-on
at the European Patent Office
There are many aspects of the recent events (See here and links concerning the suspension of a member of the Board of Appeal, and here and links concerning the strikes and demonstrations) at the European Patent Office that trouble Merpel.  One is the apparent erosion of the independence of the Boards of Appeal.  One of their jobs is to tell the first instance that what they have done is wrong, which inevitably has a negative impact on the procedural efficiency of the EPO.  Given that this procedural efficiency is the stated aim of most of the current reforms introduced by the President that are the subject of so much concern, the continued independence of the Boards of Appeal is vital for all users of the EPO.  The Boards have even condemned as in breach of the EPC those procedures that were hardwired into EPO practice, such as the pro-forma Decisions "according to the state of the file" if the applicant did not want to pursue argument further and just wanted an appealable decision (see for example here).

There are troubling signs that the independence is being eroded, quite apart from the house ban and then suspension imposed by the President and the confirmed by the Administrative Council.  (Incidentally, this was referred to in the Communique as "unanimous", but was it?  Merpel has heard that there were two votes against.  Can this be misinformation?)

Readers may recall that there was a proposal to make the Boards of Appeal more independent of the rest of the EPO.  This proposal for the "Autonomy of the Boards of Appeal" has now been pretty much expunged from the EPO website, but survives here.  This proposal is now seemingly dead in the water.  Merpel has however heard that there are plans afoot to review the position of the Boards of Appeal, and this has been discussed at the "Board of the Administrative Council" (AC) or "Board 28".  This is a subcommittee of the Administrative Council according to Article 28 EPC and is currently composed of:
Ex officio members
  • Jesper Kongstad (DK) (Chairman of the AC)
  • Miklos Bendzsel (HU) (Deputy Chairman of the AC) 
Elected members
  • Sean Dennehey (UK)
  • Serafeim Stasinos (GR)
  • Habip Asan (TR)
Merpel supposes that the current examination of the institutional provisions relating to the Boards of Appeal is headed in the opposite direction from the previous proposal, ie to make them less autonomous.

There are already worrying signs that even the members of the Enlarged Board of Appeal do not consider themselves independent.  Two signatures on the now-famous letter of the EBA to the AC protesting the suspension of the Board of Appeal member were notably missing.  These are the signatures of Chairman of the EBA himself, and the member of the Enlarged Board still working (the other two have retired) who participated in Decision R19/12.  The President of the EPO is reported to have been furious at that decision, which found that an objection to the participation of the Chairman of the EBA on the basis of suspicion of partiality, because of his dual role as vice president of DG3 (the Boards of Appeal), was justified.  Can it be that pressure has been applied to these two persons?

In an interesting development, the Chairman of the EBA is also subject to an objection on the basis of apparent lack of partiality in case R 08/13.  Merpel has seen a submission recently filed on that case, which was available on the electronic case file for a short period before being taken down.  The representatives in that case argue that the non-signing of the letter to the AC by the EBA demonstrates that the Chairman's position as Vice President of DG3 is in conflict with his role as an independent judge.  There must surely be concerns that clear independence is not currently apparent.

Wednesday, 17 December 2014

Wednesday whimsies

A time for GOLDENBALLS ...
The Court of Justice of the European Union (CJEU) will be to all intents and purposes closed from 22 December to 6 January, though this Kat has no doubt that several of the CJEU's judges, and particularly those of the General Court, will be contemplating the wonderful world of intellectual property law for those two all-too-short weeks while they recharge their judicial batteries. Merpel thinks they'll need a good deal longer than a two-week break in future if they find a stream of patent cases arising from the new European patent package heading their way -- but she suspects that most of the current bunch will have retired before that happens ...


"Bake off!" Not a new
euphemistic expletive ...
Around the weblogs. Shireen Smith's Azrights post, "Protection of Television Formats: the Great British Bake Off", is a neat and well-structured piece on a subject that is close to media lawyers' hearts as bake-offs are to their stomachs. Enjoy it here.  Meanwhile, SOLO IP's Barbara Cookson was industrious yesterday, with posts on The Agreed Fee (here) and on the applicability of money laundering regulations to UK patent and trade mark attorney practices (here). On Class 46, Laetitia Lagarde writes up a recent General Court case in which the word mark GENERIA and a figurative mark containing the word GENERALIA come in for a close comparison, here.  The QMJIP blog features a helpful note by Axel Paul Ringelhann on the seconf reference of questions for a ruling by the Court of Justice of the European Union in Amazon v Austr0-Mechanica, another dispute involving "fair compensation" for private copying under Article 5(2) of the InfoSoc Directive (2001/29). Even more helpfully, Axel has translated the Austrian reference into English, which you can consult here (katpat, Axel!).



Politician takes up EPO Englarged Board of Appeal independence issue.  In the House of Commons, Westminster, it appears that a parliamentary question now been tabled in relation to one of this weblog's favourite discussion topics: Julian Huppert (Liberal Democrat Member of Parliament for Cambridge, right) gave notice of the following question yesterday:
"To ask the Secretary of State for Business, Innovation and Skills [currently Vince Cable], what steps he is taking to protect the independence of the Enlarged Board of Appeal of the European Patent Office".
This Kat understands that, End of Year Post-Pudding Syndrome permitting, an answer may be floating down from on high some time around 5 January. Let's see what the Secretary for State says.


Something to read?  The December issue of WIPO Magazine is now available to download here.  If you don't fancy reading it in English, it's available in French and Spanish too. It has some pretty serious stuff in it, and some lighter content too, particularly for anyone who might be contemplating owning a driverless car.  Also published is a fresh issue of The Patent Lawyer, details of which are available here.  Finally, for those who love statistics, the World Intellectual Property Organization (WIPO) has published its tally of facts and figures for patent filing in 2013. A whacking 2.57 million were filed, this representing a 9% increase over 2012 and, in Merpel's opinion, a powerful endorsement of the patent system by its users. Statistics for trade marks, designs, utility models and plant varieties are also available, so enjoy!

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