TPMs ARE OK AFTER ALL, SAYS FRENCH COURT; IP REMEDIES BOOK REVIEW

Cour de Cassation drives hole in Mulholland Drive ruling

Now here's something from the IPR Helpdesk (sent by his friend Natalie): news of a Cour de Cassation decision from France, given only last week, in which that court apparently reverses previous judgments as to the legality of technical protection measures that impede the making of private copies. Back in April 2005 in the Mulholland Drive case, the Cour d'appel de Paris surprisingly ruled that technical protection measures that prevent users from benefiting from the private copy exception are themselves illegal.

The Cour de Cassation (left) disagrees: it recognises private copying as a legal exception to copyright but not as an absolute right in itself. In accordance with the "three-step test" established in the Copyright Directive, such an exception cannot be applied when it conflicts with the normal exploitation of the work. Thus, taking into account the new digital environment, since the application of the private copying defence might unreasonably harm the interests of the author, it cannot be said that technical protection measures unlawfully disentitle users to benefit. The Cour de Cassation has remitted the case to the Cour d'appel, which must rule again in relation to the clarified law.

Cour de Cassation text (in full) here
Cour d'appel de Paris text (in full) here
Mulholland Drive movie and data here


Rights, remedies and a jolly good read

Having nothing better to do, the IPKat has been turning the pages of a book that was published last year, Economic and Legal Dimensions of Rights and Remedies, by Roger D. Blair (Huber Hurst Professor of Economics at the University of Florida) and Thomas F. Cotter (left, Professor of Law at the same institution).

Following a thumbnail sketch of the main IP rights (for these purposes patents, trade secrets, copyrights, and trade marks) and of the enforcement and licensing of IPRs, the authors summarise the remedies available for infringement, the standard of care and the rules for determining standing to sue and joinder of defendant for IPR infringements. The authors seek to demonstrate that the core assumption of IPR regimes - that IPRs maximise certain social benefits over social costs by providing a necessary inducement for the production and distribution of intellectual products - have several important implications for the optimal design of remedies, the standard of care and even such 'distant' notions as the law of locus standi and joinder.

The bits which, the IPKat guesses, are written by the legal side of the partnership rather than economic side, are well-argued and accessible. He wishes he was better at reading economic theory but the algebra's just another foreign language most of the time. Still, the authors' message comes across loud and clear: IP law is flexible and caring in its handling of rights and remedies. It protects investment without over-protecting rights owners. The IPKat suspects that the authors would have warmly endorsed last week's BlackBerry/NTP settlement (blogged here) as a triumph for the versatility of the IP system rather than as a craven cop-out or a ransom demand.

The IPKat is left feeling really very miserable about all this. US scholars have a vast reservoir of empirical data upon which to draw, in the form of a vast corpus of reported decisions and a large, vibrant literature to provide hypothesis, stimulus and provocation in turn. Over here in Europe we have plenty of theory but, even in countries where there is a strong tradition of reporting cases, there's still not much guidance as to what the courts really do when addressing issues of quantum. There are some exceptions - the UK literature and case law on interim injunctive relief being one of them - but on the whole we are a lot better at preaching than we are at precise analysis. Merpel says, if you want some decent literature on the subject, stop moaning - go and write it!

Publisher: Cambridge University Press. Price: a highly reasonable £17.99 for little over 304 pages. Rupture factor zero: this is a paperback that even a de-energised wimp can carry around with danger. ISBN 0521540674.