Never Too Late: if you missed the IPKat last week!

Edition No 208 of Never Too Late is out!

This issue features several copyright-focussed topics (inter alia, commercial use of image rights, reference to the CJEU regarding the scope of communication to the public inside cars and the first counterfeit and piracy watch list), reports on the Brand Protection conference, and pieces on the need for IP rights to protect cultural heritage and contrast revenge porn.


Commercial use of image rights: Paris Tribunal boosts models and performers’ protection In her post, GuestKat Mathilde details how in two decisions the Tribunal de Grande Instance of Paris clarified the application of image rights in the context of commercial advertising, opting for an interpretation of the law favourable to models and performers.

In their contribution General rules on direct and indirect liability for copyright infringement instead of Art. 13, Katfriends Ansgar Ohly and Matthias Leistner discussed their proposal – which will be hosted in full on the Journal of Intellectual Property Law & Practice (JIPLP) – concerning Article 13, that is the value gap (or transfer of value) proposal.

Double trouble: fresh CJEU reference from Swedish Supreme Court regarding scope of communication to the public inside cars. The two cases followed missed payments of yearly licensing fees. The Swedish Supreme Court, as reported by GuestKat Nedim, decided to stay the proceedings and ask the CJEU to clarify the scope of communication to the public in Article 3 of the InfoSoc Directive and Article 8(2) of the Rental Rights Directive. 

TechieKat Verónica brought to us BREAKING NEWS: The first Counterfeit and Piracy Watch List has been published! On 7 December, the European Commission published  the first Counterfeit and Piracy Watch List which identifies marketplaces, registrars and hosting providers located outside the EU engaged in facilitating substantial counterfeiting and piracy.  

Eight months after the Commission for the notification of online copyright and related rights infringement started its operations it issued its first blocking orders. Katfriend Yannos Paramythiotis (Paramythiotis & Partners Law Firm) explains what happened in First blocking orders issued in Greece ... but how effective are they?

Could envisaging liability for acts of linking be a violation of the link provider's freedom of expression under Article 10 of the European Convention of Human Rights? In its judgment in Magyar Jeti Zrt v Hungary the ECtHR rules that prohibiting linking to defamatory content might be freedom of expression violation: what implications (if any) for copyright? In her post, Kat Eleonora discusses the
possible implications.

Need for IP!

Following the news of the UN protection of the well-known musical genre reggae, Katfriend Natalie Corthésy (The University of the West Indies at Mona) in Protecting reggae – Cultural heritage needs IP explains what happened in detail and reflects on the implications thereof. 

GuestKat Mathilde discusses how in a recent decision of the Paris Tribunal on ‘revenge porn’ IP rights were not envisaged as the entire case was pled on the ground of the right to privacy.Revenge porn: …still no IP rights in sight.


InternKat Rose breaks the news of the Technical Board of Appeal decision, a development in the on-going legal saga on the issue of whether plant products produced by essential biological processes are patentable. BREAKING: TBA decides that Rule 28(2) EPC, excluding plant products produced by essentially biological processes from patentability, is void

”Baby you can drive my car” period is over. Welcome the Self-driving vehicles. In November 2018 the EPO published a report entitled “Patents and self-driving vehiclesgiving a very interesting overview of the patent landscape in this emerging field. In her post, GuestKat Frantzeska comments on the EPO's report and discusses the patent activity in this field.

Events and reports

Guest Kat Rosie travelled to Frankfurt to the Second Brand Protection conference. At the conference a wide range of topics linked to brand protection were discussed: the talks ranged from the various online anti-counterfeiting tools to latest technological developments and intermediary liability through to the various methods that brands have adopted to protect their rights.  In her two-part report (Brand Protection - fresh perspectives from a Frankfurt conference [Part 1]and Brand Protection Conference [Part 2]) she covers the main points discussed. 

Kat Eleonora reminded us of the New joint IPKat/BLACA event! The topic is ... Copyright and Artificial Intelligence which will take place on 10 January 2019 in London. Hurry up to book because places are limited!

Book reviews

In her Book review: Copyright law and derivative works GuestKat Mathilde reviewed Omri Rachum-Twaig's recent book, “Copyright law and derivative works. The book revisits the right to make derivative works through the lenses of cognitive psychology and genre theory, both of which study creativity. The author argues that copyright law has much to learn from these two disciplines, both in the way that they understand creativity and how to best encourage it. A good read to start 2019!

Weekly Roundups: Around the IP Blogs!


Never Too Late 207 [Week ending 2 Dec] draft Directive on copyright in the Digital Single Market: Contractual override and the new exceptions in the Copyright in the Digital Single Market Proposal | Venice court tackles copyright protection for architectural works as applied to yachts | Marrakesh Treaty is no paper tiger: EU Commission sues 17 countries for non-compliance | Give Africa its cultural heritage back … But keep its digital cultural heritage? | The IP term (thus far) of the millennium: the curious story of the adoption of "patent troll" and "internet trolling" | No pain, no gain: Plausibility in Warner-Lambert v Actavis | Testing the boundaries of subjectivity: Infringement of Swiss-type claims in Warner-Lambert v Actavis | Is SPINNING generic? EU General Court explains how the relevant assessment is to be undertaken | High Court employs ‘intention to target’ approach to determine application of EU/UK law in online trade mark infringement case | There's a new IPO report on designs infringement - game-changer or stating the obvious? | Thursday Thunders

Never Too Late 206 [Weeks ending 18 and 25 Nov] BREAKING: CJEU says NO to copyright in the taste of a cheese | The Levola Hengelo CJEU decision: ambiguities, uncertainties ... and more questions | Enforcing copyright in government documents? Not as uncommon as one might think | Linda Nochlin, "Why Have There Been No Great Women Artists"? Relevant as ever, controversial as ever, | Buyers beware! …You may owe re-sale right royalties | BREAKING NEWS: Supreme Court unanimously dismisses Warner-Lambert's painful Lyrica appeal | Why is this Kat laughing (hint: it's all about his blue shirt)? | AIPPI Rapid Response event - Unwired Planet (Court of Appeal decision) | Take your seat at the Bench: an evening with the IP/tech judges | General Court annuls Delegated Regulation 665/2013 on energy labelling of vacuum cleaners | Book review: Artist, Authorship & Legacy: A Reader | Book review: Cross-Border Copyright Licensing: Law and Practice

Never Too Late 205 [Weeks ending 4 and 11 Nov] Chinese Supreme Court: hoarding trade marks in bad faith falls within scope of “illegitimate means” | 3-second cinematic sequence sufficiently distinctive to be a trade mark, says EUIPO Fifth Board of Appeal | 'Winter Is Coming' vs 'Sanctions Are Coming': a 'trademark misuse' also in languages other than Dothraki? | Auctioning Art(ificial Intelligence): The IP implications of Edmond de Belamy | Report from 2018Annual Meeting of the European Policy for Intellectual Property Association | The drumbeat gets louder: is anti-competitive conduct trumping innovation as the foundation for high tech dominance? | Criminal conviction over disparaging religious doctrines not a violation of freedom of expression: potential IP implications of the latest ECtHR ruling | Event Report: Trade Mark Conference 2018 | What can be the main events in the life of a copyright work in Europe? Here's another map | Complicating designs: whither the EU reforms, and what impact will Brexit have? | Book Review: Kerly’s Law of Trade Marks and Trade Names | Thursday Thingies | Around the IP Blogs

Never Too Late 20[Week ending 28 Oct]Court of Appeal reaffirms UK as SEP litigation hotspot in upholding Birss J in Unwired Planet | Much Ado About FRAND: What you need to know about today's Court of Appeal Unwired Planet decision | AIPPI UK Rapid Response Event: Unwired Planet v Huawei - 13 November at 6PM | Lord Kitchin applies the "markedly different" infringement approach in Actavis v Eli Lilly in Icescape v Ice-World | AG Szpunar advises CJEU to rule that copyright cannot subsist in military report in important fundamental rights case | Australia considers reform of its website blocking regime, including possibility to target search engines and new types of injunctions | Swedish Court orders ISP to block access to The Pirate Bay and other Torrent sites | What's your party drink? - Asolo v Red Bull | Questioning the trade mark judges

Never Too Late: if you missed the IPKat last week! Never Too Late: if you missed the IPKat last week! Reviewed by Cecilia Sbrolli on Saturday, December 29, 2018 Rating: 5

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