This copyright heresy stinks

The IPKat has nosed out another act of IP heresy, this being a report in The Telegraph that a scent is a work of art just like a painting or a symphony, according to a French court in a ruling seen as a major victory in the battle against copycat fragrances. Says the article:
"After decades of failed attempts to copyright a particular perfume, cosmetics giant L'Oreal finally persuaded the court that its perfumes were entitled to the French droits d'auteur (authorial rights) that protect their creators from imitation for 70 years...".
IPKat readers will remember that the Dutch courts have done the same thing - in Lancome v Kecofa, a 2004 decision of the Court of Appeal of Den Bosch which has been reported in English in the European Copyright and Design Reports at [2005] ECDR 5.

The IPKat thought that the earlier Dutch decision was heresy: perfumes have nothing to do with authors' works in the Berne Convention sense. If this decision is right, then what is there to stop copyright being granted to the taste of a wine or the texture of a cheese? This clogging overprotection just stifles competition for the production of a product. Merpel says, look at the bright side of things: at least the perfumes will come out of copyright eventually ...

Breach of privacy "replaces" defamation?

Another Telegraph piece today suggests that legal actions brought by celebrities for infringements of their rights of privacy are edging defamation out as the favoured means of protecting against unwarranted "kiss-and-tell"-type intrusions on their private lives. This is not surprising, says the IPKat. Defamation only works if information that is published turns out to be false and has pejorative connotations to it. Breach of confidence (or invasion of privacy, as the press prefer to call it) is a cause of action whether the information brought to light is true or false, so long as the intrusion on the celebrity's personal life is unwarranted and cannot be justified by any countervailing public interest.

The article discusses the prospects for actress Francesca Annis, who is objecting to revelations concerning her relationship with former lover Ralph Fiennes, as well as the action recently brought by Canadian folk singer Loreena McKennitt (left). Last December McKennitt sued her former friend Niema Ash for breach of confidence over publication of her book, Travels with Loreena McKennitt: My Life as a Friend. In his ruling Mr Justice Eady held that not only were readers not entitled to know everything about celebrities but that newspapers could not justify publication merely by citing an accusation of hypocrisy.

McKennitt v Ash: the gospel according to lawyers from Farrer & Co, Carter-Ruck and Berwin Leighton Paisner.

1 comment:

  1. May I disagree ?
    Please come to France.
    We shall be delighted to actually show you why perfumes are indeed creative works that deserve legal protection :-)

    More seriously, you should add my Colleague Pierre Breesé's blog to your IP blogs list.

    He has published several posts on this subject.


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