tag:blogger.com,1999:blog-4513524515428334509.post8486166486716000435..comments2024-03-26T10:41:35.852+00:00Comments on The 1709 Blog: Does Oracle ruling breach WIPO Copyright Treaty?Marie-Andree Weisshttp://www.blogger.com/profile/17125973798789498436noreply@blogger.comBlogger6125tag:blogger.com,1999:blog-4513524515428334509.post-21130242958864395592012-11-16T15:42:28.999+00:002012-11-16T15:42:28.999+00:00I agree with Ken. It should, however, be added tha...I agree with Ken. It should, however, be added that the EU Software Directive 2009/24/EC is only the codified version of the Software Directive 1991/250/EEC, which was enacted back in 1991 when software downloads via the Internet were not yet known. Therefore, the relevant provisions on which the CJEU based its judment do not take downloads into consideration at all.Truikennoreply@blogger.comtag:blogger.com,1999:blog-4513524515428334509.post-24742763848854544712012-11-15T23:21:06.895+00:002012-11-15T23:21:06.895+00:00In answer to Tom, like my own country I do not bel...In answer to Tom, like my own country I do not believe Canada has acceded to the WCT. In relation to WCT Art 10, even assuming that the legitimate intersts of Oracle would not be effected, it is for member states to make limitations and exceptions to their national law and not an unelected court. Ken Moonnoreply@blogger.comtag:blogger.com,1999:blog-4513524515428334509.post-16637654950811085182012-11-15T23:00:34.009+00:002012-11-15T23:00:34.009+00:00I agree with Tony Ballard on the underlying object...I agree with Tony Ballard on the underlying objective of the ECJ in the Oracle and Sportsradar decsions. However I object to the legal logic applied to the relevant EU Directives. Tony in his Sportradar article does note that "it is remarkable that the Court of Justice is able to make sweeping changes in this way".<br /><br />Even if the Court's logic had been correct, I assert the effect is contrary to the WCT.<br /><br />I say this because (and here I also answer Hera Moon) the Agreed Statement attached to WCT Articles 6 and & 7 states “the expressions ‘copies’ and ‘original and copies’ being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects.”<br /><br />I also note that the history of the drafting of WCT shows that Europe (unlike the US) sought the addition of a separate "right of communication" to be distinguished from the right of distribution. It was never intended they should amount to the same thing.<br /><br />I also say (to be the subject of a future article) that a software licence is not a sale and the issue of exhaustion should not even have arisen.<br /><br />Ken Moonnoreply@blogger.comtag:blogger.com,1999:blog-4513524515428334509.post-23310055626849850162012-11-15T18:11:55.669+00:002012-11-15T18:11:55.669+00:00The exclusive right to communicate to the public (...The exclusive right to communicate to the public (WCT art 8) and the recognition of a computer program as a copyright work (WCT art 4) are provided for not only in the WCT, but virtually in all other national, regional and international copyright acts and treaties. In Ken Moon’s interpretation of art 6(2) and 8: “The WCT expressly allowed exhaustion of right of distribution (of tangible physical copies) in Article 6(2), but not for the Article 8 right of communication of intangible digital files,” I would like to know the origin of authority allowing him to add “of tangible physical copies” and “of intangible digital files" respectively, the exact wording of Article 6(2) being "Nothing in this Treaty shall affect the freedom of Contracting Parties to determine the conditions, if any, under which the exhaustion of the right in paragraph 1 applies after the first sale or other transfer of ownership of the original or a copy of the work with the authorization of the author." And the fact is that within EEA, copyright owners have no control over resale markets except for the rental market. Moreover, I have searched in vain (maybe I should have paid more attention) the provision to back up his statement “Under the WCT, licensees do not acquire any right to "re-communicate" their Oracle software to third parties.” I would rather discuss the principle of technological neutrality and the enforceability of shrinkwrap or clickwrap licences.Hera Moonhttp://www.trajuris.comnoreply@blogger.comtag:blogger.com,1999:blog-4513524515428334509.post-42774075501605227712012-11-15T16:52:33.700+00:002012-11-15T16:52:33.700+00:00I agree with Tony that this article is wide of the...I agree with Tony that this article is wide of the mark. The Court's interpretation of communication to the public as an essentially ephemeral act (similar to a public performance) as opposed to distribution to the public which covers permanent transfer of a copy (whether on a CD or as a download) appears to be completely consistent with the WCT. It also explains why exhaustion isn't mentioned in relation to Article 8, as in the context of an ephemeral act exhaustion makes little sense.<br /><br />However, if such a transfer is indeed a communication rather than a distribution to the public, as Mr Moon argues, then nothing in the treaty appears to argue against exhaustion. If exhaustion is not permitted by Art 8 (which is debatable) then a WCT state could surely rely on Article 10 to introduce it. Article 22, which concerns reservations to the treaty, appears to be irrelevant.<br /><br />I think the Court of Justice is right here in classifying this as an act of distribution. Anyway, if they are wrong then surely the Canadian supreme court is wrong too? (see the judgment in the SOCAN case http://the1709blog.blogspot.co.uk/2012/11/the-four-main-canadian-mobile-phone.html )Tomnoreply@blogger.comtag:blogger.com,1999:blog-4513524515428334509.post-7391789446500250712012-11-15T11:13:22.503+00:002012-11-15T11:13:22.503+00:00I think that Ken Moon's piece may have missed ... I think that Ken Moon's piece may have missed the point of the Oracle decision, which is to take forward a new perception of the meaning and effect of the Information Society Directive, duly rationalised in relation to the WIPO Copyright Treaty, as I have explained in http://blog.harbottle.com/dm/?p=54 and http://blog.harbottle.com/dm/?p=55. Tony Ballardhttp://www.harbottle.com/hnl/pages/person/Tony_Ballard.phpnoreply@blogger.com