Monday 16 December 2019


French media organisations have lodged a complaint against Google with the country's competition authority in a move over the US internet giant's refusal to pay for displaying their content. In fact the internet platform has taken the decision not to show their content at all - which in turn has reduced traffic to those sites.  Earlier this year France implemented the recent EU copyright reforms - one aim of which was to ensure publishers are compensated when their work is displayed online.  Google won't pay - but with the law now in place will only display content if they are granted gratis permission. And the APIG press alliance is not happy. Not happy at all - not least because their members have lost visibility and presumably advertising revenue - and the media organisations say the giant is abusing its dominant position in the market. French President Emmanuel Macron has already voiced his support for the press, saying that no company can "break free" of the law in France.''

A Colombian writer is appealing a Miami federal court’s ruling that Netflix's hit show “Narcos” does not infringe copyright in her memoir about her experiences with drug lord Pablo Escobar. The US District Court in Florida said that the common aspects of two scenes from “Narcos” and Virginia Vallejo’s book “Amando a Pablo, Odiando a Escobar” were factual -and not protectable. The case will go to the Eleventh Circuit Court of Appeals. 

A new report from the European Union's Intellectual Property Office that between 2017 and 2018, overall access to pirated content in the EU fell by 15.1% on average, and shows that online piracy among young internet users continues to decline - with a major factor being the development of legal and accessible music, video and gaming platforms. Of course piracy amongst  the 15-24 year generation hasn't gone away from an age group where 97% stream or download music, 94% stream or download movies and TV series, 92% play online video  games,  and 79% who find other TV shows and sporting events: a third of those surveyed still accessed at least some of their online content from unlicensed sources, but this number is in decline particularly with music. The report says that young people will still find illegal sources of material they cannot easily access legally - in particular movies, TV shows and sport. More here.

The High Court in London has found that the patterns on the lid of a make-up powder palette and embossed on the powder itself could constitute protectable copyright works. The  decision in the case,  Islestarr Holdings Ltd v Aldi Stores Ltd  [2019] EWHC 1473 (Ch) dismissed Aldi’s argument that the ephemerality of the powder design meant that it was not sufficiently fixed to be granted copyright protection. Deputy Master Linwood used the  examples of the copyright protection granted to sand sculptures that are washed away by the tide - and a personalised wedding cake that will be eaten can still constitute a copyright work. The Deputy Judge held that Aldi had no real prospect of successfully defending Islestarr's claim for copyright infringement of each design. More from Hugo Cox on this case here.

Fashion firm Marc Jacobs has newly submitted new arguments as to why it has not infringed the intellectual property rights of Nirvana by selling a t-shirt that featured a version of the wobbly face image that was a staple of the band's merchandise. Marc Jacobs has so far failed to have Nirvana LLC's claim dismissed with the judge overseeing the case ruling  "a review of the images confirms that the allegation as to substantial similarity is sufficient". Now Marc Jacobs has now filed some new documents with the courts that include copyright and trademark law technicalities, and a challenge to whether or bot the claimant owns the original wobbly face image. On subsistence, Marc Jacobs cite rules and practices of the US Copyright Office which, they say, confirm that Nirvana's wobbly face image does not meet the requirements to be protected by copyright. They also note that the US Patent And Trademark Office refused to register the logo as recently as last summer, and that Nirvana LLC has failed to demonstrate that Kurt Cobain drew the wobbly face, as has been claimed, nor that rights in the drawing passed to the band's company through either explicit or implicit agreement.

And more from the world of fashion - this case from the USA where a Montana based clothing company called All Season All Terrain (ASAT) Outdoors is suing New York-based fashion company Supreme for copyright infringement after Supreme sold clothing printed with a copyrighted camouflage design. ASAT has told the New York District Court.that it has owned the copyright on a camouflage design since it was created in 1985.

A Japanese government panel has now approved a plan to limit the scope of what is considered illegal downloading of any copyrighted work,  including manga, computer games and literary writings, reversing its initial plan to restrict such online activity more broadly. The Cultural Affairs Agency panel said a future amendment to the copyright law would not apply to partial downloads of copyrighted works, such as a few frames from a comic book or a screenshot of a copyrighted image. In the new proposal, the panel said further discussions were needed to decide whether to narrow the scope of illegal acts to the downloading of complete original works, excluding parodies and derivative works, and downloads from piracy websites.

The World Intellectual Property Organisation (WIPO) has called for public comments as part of its process to develop a policy on Artificial Intelligence and Intellectual Property Rights. The call is available here and is open until February 14th 2020.  “Artificial intelligence is set to radically alter the way in which we work and live, with great potential to help us solve common global challenges, but it is also prompting policy questions and challenges,” said WIPO Director General Francis Gurry adding "Machine learning relies on information in the form of electronic data, which is also at the heart of intellectual property and innovation in a global digital economy. I invite everyone with an interest to assist us in formulating the questions that are confronting policy makers and to share with us their expertise in order to have a focused dialogue.

And finally, US audio streaming service TuneIn is appealing against last month’s High Court judgment which it says is “fundamentally bad for freedom of expression on the Internet and cultural diversity” (in the United Kingdom).Tunein is the internet radio service, available online and via an app, which has both free and premium versions. The Kluwer Copyright Blog has more on the decision by Mr Justice Birss in Warner Music & another v TuneIn Inc [2019] EWHC 2923 (ch). 

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