Slings and roundabouts: DISH TV's advert skipping is OK in the USA

Variety reports that  U.S. District Judge Dolly M. Gee’s has ruled that DISH Network’s offering of features that automatically skip ads and another that allows subscribers to watch live broadcasts remotely do not violate copyright law. The ruling by the federal judge came just days after DISH and the network challenging its features, Fox, said that a settlement of their litigation was “highly likely.” The litigation was put on hold until October, when a retransmission contract between the companies is set to expire. CBS Corp and ABC had settled similar litigation last year, as part of broader settlements allowing Dish to broadcast the networks' programs.Similar litigation against Dish by NBCUniversal had been put on hold pending developments in the Fox case.

Variety says that Fox sought to limit key aspects of DISH’s Hopper service, including PrimeTime Anytime, which records and stores entire nights’ worth of programming, along with AutoHop, a feature that allows subscribers to automatically skip commercials. It also challenged DISH Anywhere, using Sling technology, which allows subscribers to view live programming remotely, outside of the home, on a range of devices. But it was mixed results for DISH: Whilst Judge Gee ruled that such offerings did not infringe copyright, she sided with Fox in concluding that some of the DISH's features, like Hopper Transfers, which enables users to download shows onto mobile devices, violated its contract agreements with the broadcaster that restrict copying of programming for use outside the home. She also found that DISH’s copying of Fox programming for quality assurance purposes in its offering of the ad-skipping feature AutoHop violated Fox’s exclusive right of reproduction.

The case of course brings to mind the much reported Aereo case - the now defunct controversial streaming video service which used the much mentioned 'mini antennae' to deliver its service to paying customers. In June 2014 the Supreme Court ruled (6-3) that Aereo had violated US copyright laws by “capturing broadcast signals on miniature antennas and delivering them to subscribers for a fee". But Gee found difference between the now defunct Aereo and DISH, noting that Aereo neither owned the copyright to the broadcast works nor held a license from the copyright owners to perform those works publicly, concluding that Dish's "sling" technology, did not constitute a "public performance" that infringed Fox copyrights saying 


“DISH does not, however, receive programs that have been released to the public and then carry them by private channels to additional viewers in the same sense that Aereo did” adding "“DISH has a license for the analogous initial retransmission of the programming to users via satellite”. 

She went on to say: 

“Aereo streamed a subscriber specific copy of its programming from Aereo’s hard drive to the subscriber’s screen via individual satellite when the subscriber requested it, whereas DISH Anywhere can only be used by a subscriber to gain access to her own home STB/DVR and the authorized recorded content on that box” adding “Any subsequent transfer of the programming by DISH Anywhere takes place after the subscriber has validly received it, whereas Aereo transmitted its programming to subscribers directly, without a license to do so.”


Gee also rejected claims that DISH’s transmissions were a public performance, pointing out that the transmission “travels either to the subscriber herself or to someone in her household using an authenticated device.”

In a statement, DISH said it welcomed the ruling saying: "Consumers are the winners today, as the court sided with them on the key copyright issues in this case".  

In a statement Fox spokesman said the company welcomed Gee's contract rulings, but were disappointed by her copyright findings saying: "This case is not, and has never been, about consumer rights or new technology," adding "It's always been about protecting creative works from being exploited without permission."

Judge Gee's 63 page decision was in the U.S. District Court for the Central District of California dated the 12th January, and had been under seal, and was released in redacted form.  Fox Broadcasting Co et al v. Dish Network LLC et al, U.S. District Court, Central District of California, No. 12-04529. 

More here from Reuters and on PCWorld here and The Hollywood Reporter here. 

HOT NEWS: Amsterdam Court of Appeal gives Tom Kabinet three days to shut down

Here's some fresh news from Míchel Olmedo Cuevas, who has been following this development closely:

Earlier today, the Amsterdam Court of Appeal  delivered a ruling stating that, as Tom Kabinet provided a platform where both,legal and illegal used e-books could be resold, the website has to close within the next three days or face a fine of €1,000 a day, up to a maximum of €300,000. 

This decision follows the appeal presented by Nederlands Uitgeversverbond (NUV) and Groep Algemene Uitgevers (GAU), two Dutch collective management societies representing the interests of the literary industry, in which they asked for an immediate closure of the site. At first instance, Judge Pompe decided that the activity carried out by Tom Kabinet was lawful and should be allowed to continue. An analysis on the case by this author can be found here. 

At this stage the closure order can still be lifted if Tom Kabinet finds a way to ensure that their selling systems excludes illegally downloaded files. This should prove to be difficult, given that there are legitimate suppliers that do not provide their e-books with DRM (Digital Rights Management), making them very difficult to track. The current Tom Kabinet system provides the sold files with a watermark, so they cannot be sold more than once at a time and only by the last buyer, a system that Judge Pompe considered to be compliant with the current legal framework. 

Significantly, the court avoided deciding whether exhaustion doctrine should be finally applied to e-books, and left the question for future proceedings, where the competent court could refer questions to the CJEU, and ask the highest instance if exhaustion doctrine should apply to e-books. 

At this instance, the only goal for NUV and GAU was to obtain an injunctive relief while they wait for the final ruling, so there is still a chance for Tom Kabinet to resume their activities after the final ruling is delivered. 

The complete ruling can be read here (in Dutch). Tom Kabinet's website is here.

Use it or Lose it: this year's CIPIL conference

The ideal Cambridge weekend ...?

Organised by 1709 Blog friend Prof Lionel Bently, "Intellectual Property: Use it or Lose it?" is the title of this year's CIPIL Spring Conference which will be held, as usual, at the Law Faculty, University of Cambridge on Saturday 7 March. 

Despite the title, the conference does not only concern trade marks. Copyright is also due to play an important role in the programme.

According to the abstract, in fact, 

This one day conference [chaired by The Hon Mr Justice Arnold] seeks to explore the apparently increased place of the obligation of use within intellectual property law. We begin with a review of recent developments in case-law and legislation across the three fields (trade marks, patents, copyright). We conclude by reflecting on the relationship between obligations to use and property rights, the harms caused by those holding but not using IPRs, and various ways in which use might be incentivised (including pricing mechanisms imposing penalties for non-use), and issues of territoriality. Different fields of intellectual property law operate with different expectations as to whether an intellectual property right owner will exploit their intellectual property, and how the law should respond if the rightholder decides not to do so.

... Going to an IP conference, of course!

Trade mark protection was (in Britain, at least), for some time, premised on the idea that the trade mark owner was using the mark, and, even when registration came to be permitted prior to use, provisions were introduced limiting the effects of marks that had not been used and making possible their revocation. In passing off, if a trader who has built up goodwill ceases to trade (or ceases simply to use the sign with which the goodwill has become associated), the goodwill is presumed gradually to dissipate. Patent law, likewise, was premised on an expectation that a patentee would exploit the invention, and this was in many legal systems given effect to by providing that unworked patents might be revoked or subject to compulsory licences. That said, these provisions have tended to be subjected to increasing numbers of conditions or limitations. Meanwhile, recent years have seen a rise in concern over so-called ‘non-practising entities’ (NPES, aka ‘trolls’).

In copyright law, the expectations of use have played a lesser role, though legal systems have frequently provided legal mechanisms for regulating decisions by copyright owners in works of deceased authors; while contractual regulation (particularly in civil law systems), has frequently protected authors from decisions of transferees of copyright not to exploit works. Latterly, however, the idea that a rightholder must ‘use it or lose it’, has underpinned rules relating to term extension for sound recordings and, more generally, orphan works."

Reserving your place is just a click away.

OSA and Article 102 TFEU: a way of attacking excessive collecting society fees?

Fellow 1709er Eleonora is far too modest to mention it, but she has just had a Current Intelligence note published online in the Oxford University Press publication, Journal of European Competition Law & Practice (JECLAP).  It's "OSA (the Czech Spa case): Article 102 TFEU as a Means to Attack Excessive Copyright Fees of Collecting Societies?" and it will appear in the print version of JECLAP at (2015) 6 (2): 96-97.

The case in question is Case C-351/12 OSA – Ochranný svaz autorský pro práva k dílům hudebním o.s. v Léčebné lázně Mariánské Lázně a.s., 27 February 2014 and Eleonora's abstract reads as follows:

Even where national law reserves collective management of rights to a certain collecting society, this does not exclude application of competition law rules, notably Article 102 of the Treaty on the Functioning of the European Union (TFEU): a collecting society may be found to abuse its dominant position if in a particular Member State it imposes fees that are appreciably higher than those charged in other Member States, or imposes a price that is excessive in relation to the economic value of the service provided.

Adventures in Personal Copying (Part 1)

Yin Harn Lee

Did you think that adoption by the UK of an exception for private copying personal copies for private use [here] was the end of the story, so that everybody could finally live happily ever after?

Apparently this is not what happened. 

1709 Blog friend Yin Harn Lee (University of Sheffield) reports on her recent (mis-)adventures.

Here's what Yin Harn writes:

"Recently, I bought a DVD of the first season of the Sleepy Hollow TV series, which had been recommended to me for its diverse cast, its implausible yet convincingly executed premise, and the soulful eyes of its male lead Tom Mison. 

As I have a TV capable of reading USB memory devices, but no DVD player, it was my intention to rip the episodes onto a USB device so that I could view them comfortably on my TV. This was on the basis of the newly-enacted section 28B of the Copyright, Designs and Patents Act 1988 (‘CDPA’) which, since 1 October 2014, permits individuals to make personal copies of works (other than computer programs) that they have acquired lawfully and on a permanent basis for their own private use (see previous post here).

My intentions of enjoying Tom Mison’s face this exciting and fast-paced TV show in full 32-inch-screen glory were, however, stymied by what appeared to be a technological protection measure (‘TPM’) applied to the DVD, which prevented me from copying the episodes. 

Recalling that the newly-enacted personal copying exception in the CDPA also introduced several provisions permitting individuals to issue notices of complaint to the Secretary of State where they are prevented from making personal copies by restrictive measures applied by or on behalf of the copyright owner (see section 296ZEA of the CDPA), I took to the Internet to discover how such a complaint might be made. 

Typical eagerness to learn about
the intricacies of copyright law

This led to a discovery of a form on the IPO website, which requires complainants to provide, inter alia, details about themselves, the work concerned, and the copyright exception(s) which they are seeking to benefit from.

The section of the form that caught my eye first of all was Section 7, which states:

          “Details of your discussion with the rightholder(s)

“It is important that you have tried to reach a solution with the rightsholder(s). Please set out the steps you have taken to try to agree a solution with the rightholder(s).

“Include here any suggestions made by the rightsholder(s) and any reasons why the solution is not acceptable to you.

“Please enclose copies of relevant correspondence.”

I found this curious, as the relevant provision in the CDPA does not appear to impose on the individual seeking to benefit from the personal copying exception any obligation to reach a solution with the rightholder in relation to the TPMs that prevent that person from doing so. In fact, section 296ZEA(3) of the CDPA states that:

“Following receipt of a notice of complaint, the Secretary of State may give to the owner of that copyright work or an exclusive licensee such directions as appear to the Secretary of State to be requisite or expedient for the purpose of –

“(a) establishing whether any voluntary measure or agreement relevant to the copyright work subsists, or

“(b) (where it is established there is no subsisting voluntary measure or agreement) ensuring that the owner or exclusive licensee of that copyright work makes available to the complainant or the class of individuals represented by the complainant the means of benefiting from section 28B to the extent necessary to benefit from that section.”

Unwanted consequence
of trying to understand
UK private copying exception?

This seems to place the onus on the rightholder to establish whether such voluntary solutions do exist, and if not, to take steps necessary for ensuring that the complainant is able to benefit from the personal copying exception.

In fairness, it should be noted that section 296ZEA(5) of the CDPA does state:

“The Secretary of State may also give directions –

“(a) as to the form and manner in which a notice of complaint in subsection (2) may be delivered,

“(b) as to the form and manner in which evidence of any voluntary measure or agreement may be delivered, and

“(c) generally as to the procedure to be followed in relation to a complaint made under this section,

“and shall publish directions given under this subsection in such manner as the Secretary of State thinks will secure adequate publicity for them.”

However, while this gives the Secretary of State some discretion for determining the procedure for issuing a notice of complaint, it would seem not to go so far as to allow the onus of establishing the existence of voluntary solutions to be shifted to the individual, rather than the rightholder. There are also practical implications: individual users are unlikely to be in a position to negotiate effectively with rightholders, and may even have difficulty identifying the correct rightholder in the first place.

In my case, aware that Sleepy Hollow is produced by Twentieth Century Fox in the US, I have decided to get in touch with them via the contact form here to see if they are prepared to offer any solutions to my TPM woes. Suggestions as to the wording I should use would be very welcome."

1709 Blog readers: any suggestions that could lead to Adventures in Personal Copying (Part 2)?

The Spanish hunt for websites providing hyperlinks

From our friend and Entresijos y Tesituras blogger Irene Palomino (@IriniPalomino) comes the following guest post on the current situation in Spain regarding internet-facilitated copyright infringement and linking sites:

The New Year brought the new Spanish IP regulation into force.

A significant and novel feature of the New Spanish legislation is its explicitly increased focus on copyright infringers in the online environment. The main target of the new legislation is the inclusion of websites that provide classified and ordered hyperlinks which give access to protected materials. This approach is entirely at odds with current Spanish jurisprudence – in particular the decision in Audiencia Nacional of Quedelibros v SGAE (decision here; discussed here, both in Spanish) which stated that it is against the law to treat these intermediaries as autonomous infringers without taking into account the status of the owner of the website who hosts the material.

Nevertheless, this new law suggests another version of things, regarding the operators of these websites as independent infringers. The legislature, far from restraining itself, considers not only websites hosting classified links to be infringers but also those which allow linking publications on their website. This means that all website owners must be extremely careful about what is going on in their forums and comments spots.

In order to enforce these new rules, the procedure for fining those potential infringers has been revised through a special governmental institution called La Comisión de la Propiedad Intelectual Sección Segunda (‘the Commission’, explained in Spanish here).

Reassuringly, in order to define what is considered an infringer, account is taken of the Spanish audience making use of those websites that provide suspicious hyperlinks and quantities of unauthorised protected work available via hyperlinks from those websites.

There is always a dark side and, in this case it deals with how the new procedure works.

In order to report an infraction, copyright holders must address a notification in the form of an email to the website in question, alleging a violation of his/her rights. Since an answer is not required in order to initiate proceeding, after three days we are entitled to begin the process. If an email address is not provided on the website, a simple petition addressed to the Commission will suffice and it will be announced in the Official State Gazette (Boletín Oficial del Estado).

As a first step, the Commission will notify the website about the alleged infraction. Within the timeframe of a maximum of 48 hours, two options arise: on is to delete allegedly infringing materials and the other is to prove one’s innocence.

Paradoxically, if materials are deleted, websites might be subject to a civil action, given that this response can be equated with an implicit acceptance that one has infringed copyright.

Where website owners do not delete hyperlinks, the Commission can make use of heavier weapons: after obtaining a judicial authorization, the Commission holds two options. The first is to ask the electronic payment services and advertisement services to cease any relationship with the websites, which results in economic pressure. The second is to ask the ISPs to trace users as well as website owners in order to bring blocking injunctions against them. It is imperative that these petitions be justified by an effectiveness report, balancing the proportionality of the measures inquired. This reasoning is in line with UPC Telekabel jurisprudence. Nevertheless, it is still unclear how users of this procedure can assert their rights and how the courts can control these injunctions, since the prior judicial authorisation required is exclusively for formal purposes. Finally, fines range from €150,001 to €600,000 and, where the domain is not from the EU, access to it from within Spain may be blocked for a maximum of one year.

As if this was not enough, the infringer may be subject to further civil, administrative and penal action.

Curiously, it is the first time in the EU that we encounter this sort of specification concerning hyperlinks where the prosecution of this questionable practice is established by a special authority. This is a good moment to look back to the Svensson and BestWater CJEU decisions and observe how the Spanish have done their homework in order to clarify unknown factors arising from these EU decisions.

Finally, the new ruling also introduces a new Article into the Civil Procedure Code where, in preliminary trial research, a private party may require the ISPs to provide users’ identification in order to bring an action to protect intellectual property rights. This is a bit scary if one considers that this possibility leaves the window open to jeopardize users’ right to privacy. As we can well remember in the recent decision of the CJEU in Digital Rights Ireland, the Court ruled that rights of users must not be violated unless there existed a major reason to do so, such as a serious crime. One might say that this new civil procedure amendment could be used as a subterfuge to avoid the criminal procedure’s more rigorous conditions.

We will soon see how those websites behave and if they are efficiently blocked. I am eager to see the influence of this new law in other regulations.

Further reading:
El Pais, "Spain’s new intellectual property legislation: the key points", here

The CopyKat - please take notice!

Torrentfreak has released details from a report from the Motion Picture Association Of America which says that the US movie industry is unconvinced by the USA's graduated response programme for combating online piracy saying that it is having limited results, though the MPAA continues to endorse the so called Copyright Alert System and feel it is yet to reach an appropriate scale. The system sees ISPs send warning letters to suspected file-sharers identified by content ownesr. The programme launched in early 2013 - with increasing sanctions if users fail to comply in a 'six strikes' programme. Despite the lack of impact overall, the report says that there is evidence a substantial number of  file-sharers sent warning letters do  appear to stop using monitored file-sharing networks, though it is not sure if that's because those users are opting for licensing content services instead, or if they then switch to file-sharing platforms that are more difficult to monitor.

Rightscorp are back in the news -  but this time its not from one of their own press releases - its a lot of angry Canadians who don't like the fact that with Canada's 'Notice and Notice' system just two weeks old, the  U.S.-based anti-piracy firm "has been using the system to send notifications to subscribers that misstate Canadian law, citing inapplicable U.S. damage awards and the possibility of Internet termination to sow fear among Canadians so that they might pay a settlement fee." Torrentfreak reports that the letter to Canadians asks for a $20 settlement with the threat of a U.S. style $150,000 damages liability for each infringement. But the Canadian 'notice' approach does not feature any legal penalties for end users - no fines or damages, no internet slow down or suspension. Rather the notices are designed as educational tools to raise awareness of infringement allegations. what's more, when an ISP sends a notice, the personal information of subscribers is not disclosed to any third party. Of course if a copyright owner wants to proceed with further legal action they have the option of going to court to obtain an order requiring the Internet provider to reveal the identity of the subscriber but Canadian law now also limits potential liability for Internet users for non-commercial infringement, capping damages at C$5,000 for all infringements - although in an article in Billboard Michael Geist points to a loophole in the law that Rightscorp may be using - the 'notice and notice' scheme was launched in a bit of a rush - without accompanying (detailed) regulations. The Canadian Government seems less than impressed with Rightscorp and spokesman for Industry Minister James Moore said "These notices are misleading and companies cannot use them to demand money from Canadians”. That said, as CMU Daily opines "Rights owners might argue that it’s more than likely that recipients of these forms have indeed infringed, that a $20 fine is a fair deal, and that rights owners should be allowed to at least recoup the costs of running an anti-piracy programme" but adds "Though they still ought not bully that money out of alleged infringers by citing the wrong country’s law".

The International Federation of the Phonographic Industry (IFPI) says it is preparing to have several "infringing sites" blocked at the ISP level in Singapore. The move, which will target The Pirate Bay should it come back online, follows new legislation introduced last year aimed at smoothing the way for High Court injunctions.

The U.S. Supreme Court has asked the Obama administration to comment in on the huge copyright battle between Google and Oracle, which could develop into a major exploration of the legal boundaries of software protection. In an order the court asked the U.S. Solicitor General to submit a brief in the case, a common practice when the justices seek the federal government’s legal views in cases with national implications. Oracle has claimed Google’s Android operating system violated copyright protections by improperly incorporating parts of its Java technology. A federal judge initially found after a trial that the Java components in dispute (the so called APIs) could not be covered by copyright law, but the U.S. Federal Circuit Court of Appeals last year concluded that the technology could be protected.

The operators of Glasgow's now closed Avalon Bar in Glasgow have been ordered by the Court of Session to pay Sky more than £73,000 for unlawfully showing football matches. This copyright infringement award was described by Sky's lawyers as the largest award ever made against a pub landlord in actions of this kind. The Court of Session ruled in February 2014 that the pub owner was in breach of Sky’s copyright by showing a Celtic v Ross County game without a commercial agreement. The pub then flouted an injunction preventing them showing Sky Sports by playing the Scotland versus Belgium match in September 2013.
Sky Business deputy managing director Alison Dolan said: "Copyright infringement creates an uneven playing field for thousands of hardworking licensees who legitimately invest in Sky Sports, which is why we are committed to visiting thousands of pubs, as well as investigating suppliers, to protect our customers and ensure they are not left short-changed by illegal activity. The court awarded £10,000 damages and combined court fines of £7,000 in respect of the charge of contempt of court. The remaining £56,328.32 was awarded as costs. 

The Copyright Clearance Center has announced its findings from Open Access roundtable discussions with UK Institutions and Publishers - perhaps unsurprisingly the independent report finds a shared desire to simplify and standardise payment and tracking of article processing charges. The meeting was held at University College in London, and attendees examined a number of issues related to fragmentation, approach and processes, including ways vendors can play an expanded role in addressing the challenges. CCC published the group’s findings in a report written by Rob Johnson, Founder and Director of Research Consulting. More here.

A New York federal judge has largely rejected Sirius XM Holdings Inc’s request to reconsider her Nov. 14 decision in favour of members of the 1960s band The Turtles over the payment of royalties for songs made before 1972. U.S. District Judge Colleen McMahon rejected Sirius’ arguments that Flo & Eddie Inc, controlled by founding band members Howard Kaylan and Mark Volman, did not own copyrights in The Turtles’ recordings such as “Happy Together,” or gave it an “implied” license to play Turtles songs. Judge McMahon did, however, agree with the New York-based satellite radio company that Flo & Eddie could recover damages for copyright infringement only for the three years before it sued on Aug. 16, 2013, not six years as she had previously suggested. More here.

And finally, actor-director Steven Soderbergh has been getting a great deal of attention recently for posting his newly-edited versions of three classic films:  Psycho, Raiders of the Lost Ark, and, most recently, 2001: A Space Odyssey.  "Interesting and creative stuff, indeed".  But as a number of commentators have pointed out, Soderbergh has been a prominent supporter of copyright in the past, testifying before Congress on behalf of the Director’s Guild of America in favour of the “three strikes and you’re out” policy for online copyright infringers and litigating against an unauthorised alterations and edits to his own work in  Soderbergh et al v. Clean Flicks of Colorado et al. David Post has an interesting take here as does Mike Masnick on Techdirt here.

Ryanair scrapes home in database dust-up

Case C‑30/14, Ryanair Ltd v PR Aviation BV is a real quickie.  The request for a preliminary ruling from the Court of Justice of the European Union (CJEU) was only made a year ago, on 17 January 2014, -- and, spared the excitement of Advocate General Bot's Opinion, we already have the CJEU's response.

The facts are straightforward. PR ran a website on which consumers could search through the flight data of low-cost air companies, compare prices and, on payment of commission, book a flight.  It took the data it needed, in order to satisfy consumers' requests, from a dataset linked to the Ryanair website which was also accessible to consumers. So far as Ryanair was concerned, anyone accessing its own website had to accept its general terms and conditions by ticking a box to that effect. These contained the following clauses:

‘2. Exclusive distribution. This website and the Ryanair call centre are the exclusive distributors of Ryanair services. Ryanair.com is the only website authorised to sell Ryanair flights. Ryanair does not authorise other websites to sell its flights, whether on their own or as part of a package. …

3. Permitted use. You are not permitted to use this website other than for the following, private, non-commercial purposes: (i) viewing this website; (ii) making bookings; (iii) reviewing/changing bookings; (iv) checking arrival/departure information; (v) performing online check-in; (vi) transferring to other websites through links provided on this website; and (vii) making use of other facilities that may be provided on the website. 

The use of automated systems or software to extract data from this website or www.bookryanair.com for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison.’

Relying on Directive 96/9 (the Database Directive) and the local Dutch database and copyright statutes, Ryanair claimed that PR had infringed its rights relating to its data set and that it had acted contrary to the terms and condition of use of its website which the latter had accepted; Ryanair asked for an injunction and damages.

The Rechtbank Utrecht dismissed Ryanair’s claim in so far as it was based on an infringement of Directive 96/9 and the local Database Law, but allowed it under the copyright law. PR appealed and Ryanair cross-appealed to the Gerechtshof te Amsterdam, which both set aside the judgment of the Rechtbank Utrecht and dismissed Ryanair’s cross appeal.  Ryanair then appealed to the Hoge Raad, which decided to stay the proceedings and to refer the following question to the CJEU for a preliminary ruling:

‘Does the operation of [Directive 96/9] also extend to online databases which are not protected by copyright on the basis of Chapter II of [that directive], and also not by a sui generis right on the basis of Chapter III, in the sense that the freedom to use such databases through the (whether or not analogous) application of Article[s] 6(1) and 8 in conjunction with Article 15 [of Directive 96/9], may not be limited contractually?’

This morning the CJEU ruled as follows:

Directive 96/9 ... must be interpreted as meaning that it is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.

Does this ruling make sense? It does seem strange that the owner of a non-original database which has no copyright protection has a greater degree of contractual freedom than the owner of a database that enjoys protection under the Directive. However, one might say that the limitations on the rights of the owner of a protected database are a quid pro quo for its being protected in the first place -- not that this would be a logical justification for the outcome.

There's a thoughtful note by fellow blogger Eleonora on the IPKat weblog here, which has already attracted some comments.