WORLD COPYRIGHT LAW

Second edition

by J.A.L.Sterling

UPDATING SERVICE

Table of Contents

(Update entries to the following sections/paragraph numbers appear in this Issue)

Introductory

Table of Cases

Table of International Treaties and Conventions

Table of European Materials

Table of National Laws

Table of Website Addresses

CHAPTER 1 GENERAL OVERVIEW

CHAPTER 2 BASIS OF PROTECTION

CHAPTER 3 STRUCTURE OF PROTECTION

CHAPTER 4 TERMINOLOGY AND INTERPRETATION

CHAPTER 5 BENEFICIARIES OF PROTECTION

CHAPTER 6 SUBJECT MATTER OF PROTECTION

CHAPTER 7 PROTECTION CRITERIA

CHAPTER 8 MORAL RIGHTS

CHAPTER 9 ECONOMIC RIGHTS

CHAPTER 10 LIMITATIONS AND EXCEPTIONS

CHAPTER 11 TERM OF PROTECTION

CHAPTER 12 EXERCISE OF RIGHTS

CHAPTER 13 INFRINGEMENT

CHAPTER 14 REMEDIES, PENALITIES AND ENFORCEMENT

CHAPTER 17 INTERNATIONAL CONVENTIONS, TREATIES AND AGREEMENTS: SUMMARY

CHAPTER 18 BERNE CONVENTION (1886-1971)

CHAPTER 21 PHONOGRAMS CONVENTION (1971)

CHAPTER 24 WIPO PERFORMANCES AND PHONOGRAMS TREATY (1996)

CHAPTER 25 REGIONAL CONVENTIONS, TREATIES AND AGREEMENTS: SUMMARY

CHAPTER 26 EUROPEAN COMMUNITY

MEMBERSHIP AND CONTRACTING PARTIES

REFERENCE LIST OF NATIONAL LAWS

DRAFT INSTRUMENTS

BIBLIOGRAPHY

Second edition

by J.A.L.Sterling

In this Service, short notices are given concerning developments in world copyright law at the national, international and regional levels since January 1, 2003 up to August 1, 2005. Notices of developments concerning the period preceding January 1, 2003 are occasionally included. References to paragraphs are to the paragraphs of the updating service. Where the reference is to the main text, the words "main text" appear before the paragraph reference. The service does not purport to cover all developments in this field.

The next update will be in July 2006, unless otherwise notified on the site before that date. Each issue will be numbered, and will remain on the website pending notice of a new edition or of supplement to the main text. Matters of exceptional importance may be notified on the website by a special posting.

Among the items of particular note in the period to June 1, 2004 were the amendments to the laws of Germany (see paragraph 62.20), the United Kingdom (see paragraph 75.70) and other countries in the process of implementing the EC Information Society Directive. Cases of interest included the Austrian case concerning protection of website design (paragraph 6.12), the French cases on the inalienability of the moral right of integrity (paragraph 8.08) and on performer’s moral right in integrity of name (paragraph 8.20), the US cases concerning fair use (paragraph 10.28), moral rights (paragraphs 2.75, 8.11), exhaustion of rights (paragraph 9.41), issuing of subpoena to service provider (Verizon), (paragraph 13.49), and the Grokster case on peer-to-peer file sharing (paragraph 13.41), and the ECJ decision concerning interpretation of "equitable remuneration" (paragraph 26B.09); the judgement of the Supreme Court of Canada in the CCH case (paragraphs 7.17, 10.25, 13.10), the judgement of the Supreme Court of Canada in the "Tariff 22" case (paragraph 9.28), the Directive on enforcement of intellectual property rights (paragraph 26.06), and the judgement of the European Court of Justice in the IMS case (paragraph 26.20(e)). Other cases of interest included those on format protection (paragraph 6.26), liability of service providers (paragraph 13.41), whether Internet "pop-up" advertisements infringe (paragraph 13.49), protection of features of Barbie dolls (paragraphs 7.15, 10.29, 13.29), and the circumstances in which "sampling" infringes (paragraph 13.21). Amendments to the Russian 1993 Law, including extension of the general period of protection for authors' works to life plus 70 years, came into force on July 28, 2004 (71.10).

References to some 50 new cases in addition to those mentioned in Update Issue 2 are added in this Issue, including those concerning jurisdiction (2.75), applicable law (3.22, 9.44), joint authorship (5.03, 6.72), databases and compilations (6.18, 6.20, 26E.16), works derived from out-of-protection sources (6.21), moral rights (8.01-8.20), the distribution right (9.05), fair use (10.29(u)) , sampling (13.21), Internet linking (13.40), peer-to-peer file sharing (13.41), service provider liability (13.49), technological protection (13.56), and importation right (26.13) . Among the items of particular note are the US Court of Appeals 2^nd Circuit decision in Capitol Records Inc. v. Naxos of America Inc (April 5, 2005), concerning protection in New York State of sound recordings made in England before 1972 and out of copyright in the UK (2.20), protection of perfume by author’s right (6.06), the cases concerning protection in France of the "re-creation" of an 18^th century garden and in the UK of performing editions of 18^th century music (paragraph 6.21); the decision of the Paris Court of Appeal that the moral right of Victor Hugo (died 1885) continues in Les Misérables (paragraph 8.08(iv)); the German BGH decision in Felsberg Transmissions and the ECJ decision in Lagadère Active Broadcast v SPRE and GVL concerning applicable law in the case of transborder transmissions (9.44); the US Supreme Court decision (June 27, 2005) in the Grokster case concerning liability for supply of peer-to-peer file-sharing software (paragraph 13.41) and the European Court of Justice decisions (November 9, 2004) in the British Horseracing Board case and associated cases (paragraph 26E.16). There have been increases in membership of the international Conventions and Treaties (paragraph 40.02), and new national basic and amending laws have been reported in several countries, in many cases reflecting the steps taken to implement the TRIPS Agreement and the EC Information Society Directive (see the September 2005 entries in paragraphs 51.20 et seq., with new laws in Algeria (51.30), Andorra (51.40), Antigua and Barbuda (51.80), Bosnia and Herzogovina (59.90), Dominica (58.00), Lithuania (64.90), Madagascar (65.30), Mali (65.90), Namibia (67.40), Nicaragua (68.30), Palau (69.60), Seychelles (72.40) and Syria (73.80)). The European Commission has published a proposal for a Directive and for a framework decision on criminal measures in relation to enforcement of intellectual property law (paragraph 26.07), and a study on cross-border management of music licensing (paragraphs 12.24, 26.05). The provisions of the US Artists’ Rights and Theft Prevention Act 2005 and the Family Movie Act 2005 are briefly summarised (paragraph 14.01).

The author gratefully acknowledges the provision by Ute Decker, Florian Koempel, Tina Loverdou, William McGrath, Dr. Uma Suthersanen and Trevor Cook of information on a number of points reported in this Issue.

This Issue may be searched under the relevant word or paragraph number by saving the whole update text, then searching the file by the usual procedure. Thus all new entries in this Issue can be located by searching. "[September 2005]"

Information about developments will be gladly received by the author by e-mail to j.a.l.sterling@qmul.ac.uk.

J.A.L. Sterling

© and database right J.A.L. Sterling 2005

[September 2005]

Australia

Moorhouse v University of New South Wales [1976] RPC 151 [13.10]

Universal Music Australia Pty. Ltd. v. Cooper [2005] FCA 972 [13.10, 13.40 footnote 78]

C-Villas Austria, Oberster Gerichtshof, July 10, 2001, Case 4 Ob 155/01, (2003) 34 IIC 223 [6.12]

BVBA v. De Vlaamse Radio-en Televisieomroep, Brussels CA, October 15, 2002 [6.26]

"Mobile phones" Brussels, Court of First Instance, January 17, 2003; [2003] EIPR N-87 [13.49]

BMG Canada Inc. v John Doe, [2004] F.C. 488 (Fed. Ct., March 31, 2004) [13.49]

Kraft Canada Inc. and anor v. Euro Excellence Inc. Fed Ct., May 3, 2004, note in [2004] EIPR N-172 [9.06]

Law Society of Upper Canada v. CCH Canada Ltd. ("CCH case") (Supreme Court, March 4, 2004) [, 7.17, 10.25, 13.10]

Society of Composers, Authors and Music Publishers of Canada v Canadian Association of Internet Providers and others ("Tariff 22" case) (Supreme Court, June 30, 2004) [3.31, 4.07, 9.28, 9.33, 9.34]

Teosto v Taxi Driver, Supreme Court, Finland, (December 3, 2002, [2004] ECDR 3) [4.07]

Adventure Line Productions v URSSAF et al, Trib. Social Sec., July 10, 2003, (2004) 201 RIDA 321 [6.26]

Barbelivien v Agence Business, Cass. 1 civ., January 28, 2003, (2003) 196 RIDA 414; CA Paris, 4 Ch., December 15, 2004, (2005) 204 RIDA 291 [8.08]

Battistelli and Sanchez v. Cassina Spa, Cass., crim., October 19, 2004, ((2005) 204 RIDA 210) [26.13]

Enesco France v Denoyell, Cass., 1 civ., January 25, 2005, (2005) 204 RIDA 154 [7.07]

Ferrat v. Universal Music et al, Cass. Ch. Soc., July 10, 2002, (2003) 195 RIDA 338 [8.20]

Hazan v ADAGP , CA Paris, 4 Ch., January 16, 2004, (2004) 201 RIDA 288 [11.23, 26D.11(d)]

Guiness World Records Ltd, TGI Paris, February 8, 2002 Case 01/19480 [2003] ECDR 14 [3.31]

Hugo et al v Editions Plon et al, CA Paris, 4 Ch., March 31, 2004, (2004) 202 RIDA 292 [8.08]

Perquin et al v Films Alain Sarde, TGI Paris, 3 Ch., April 30, 2004, (2004) 202 RIDA 323 [10.04]

Robert v. Dictionnaires Le Robert, Cass. 1 civ., November 16, 2004, (2005) 204 RIDA 236 [5.03]

"Sisro" Cass., March 5, 2002, (2003) 34 IIC 701 [3.22]

Société Valterre v. Roubakineh and others, CA Paris, February 11, 2004, ((2004) 201 RIDA 303) [6.21]

Sorbelli v Yoshida et al, CA Paris, December 3, 2004, (2005) 204 RIDA 382 [5.03, 6.72]

SPEDIDAME and SNAM v Canal Plus et al., Cass. 1 civ., November 16, 2004, (2005) 204 RIDA 250 [24.09(1)(f), 26B.09]

Veropam v Villeroy and Boch AG et al, Cass, December 14, 2004, (2005) 204 RIDA 258 [18.03]

Wu v. Sté Geteve, CA Versailles, 1 Sec., April 4, 2002 [8.20]

"Audio recording piracy by export of CDs", BGH, March 3, 2004, (2005) 36 IIC 372 [9.05]

Coin-operated CD burner machine, CA Munich, March 20, 2003, 29 U 549/02, [13.10]

EROC III, BGH, October 10, 2002, (2003) 34 IIC 702 [12.04]

Felsberg Transmitter, BGH, November 7, 2002, (2004) 35 IIC 977 [9.44]

"Gies Eagle", BGH, July 20, 2003, [2004] 35 IIC 984, [2005] ECDR 6 (sub nom Bild Kunst v Focus) [13.22]

L'école des fans, BGH, June 26, 2003 1ZR 176/01 [6.26]

Mischtonmeister (Sound Mixing Engineer), BGH, June 13, 2002, Case 1 XR1/00, (2003) 34 IIC 839 [6.77]

Move, OLG Hamburg, May 3, 2001, (2003) 34 IIC 461 [7.09]

"Paperboy", BGH, July 18, 2003, 1ZR 259/00 [13.40]

"Provision of subscriber details" OLG Frankfurt, case 11U51/04, January 26, 2005 [13.49]

"Spielbank affair", BGH, October 2, 1997, (1999) 30 IIC 227) [3.22]

"Thumbnails", Landgericht, Hamburg, September 5, 2003, (2004) 35 IIC 478 [3.22]

Wrapped Reichstag II, (2003) 34 IIC 570, [2003] ECDR 7 [6.12]

Columbia Music Entertainment KK v YK MMO Japan, District Court Tokyo, January 29, 2003, [2003] EIPR N-90 [13.49]

JASRAC v YK MMO Japan, District Court Tokyo, January 29, 2003, [2003] EIPR N-91 [13.39]

"Karaoke Lease III", Supreme Court, March 2, 2001, (2003) 34 IIC 335 [32.03]

Netherlands

Church of Scientology v Spaink, CA Hague, September 4, 2003 [2.08]

Jelles v. Municipality of Zwolle, Supreme Court Netherlands, February 6, 2004, [2004] EIPR N-155 [8.05]

KAZAA, Supreme Court, December 19, 2003, ([2004] ECDR 16) [13.41]

Lancôme v. Kecofa et al, Den Bosch CA, June 8, 2004, (Case CO200726/MA) [2005] ECDR 5 [6.06]

Rowling v Uitgeverij Byblos BV ("Harry Potter parody"), [2003] ECDR 23 (D.C. Amsterdam); [2004] ECD 27 (Amsterdam CA) [13.22]

Wegener et al v Hunter Select BV, Groningen, Leewarden Gerechtshof (CA), November 27, 2002, [2004] 35 IIC 355 [26E.16]

Public Prosecutor v. Johansen, Borgating Appellate Court, December 22, 2003 [2004] ECDR 17 [13.56, footnote 39]

British Horseracing Board v. William Hill Organisation Ltd. [2005] EWCA Civ. 863 (CA, July 13, 2005) [26E.16]

Coffey v. Warner/Chappel Music Ltd [2005] EWHC 449 (Ch) [6.10, footnote 28]

Designers Guild v Russell Williams Textiles [2001] FSR 113 (HC) [7.13, 7.15(f)]

Football Association Premier League Ltd v Panini UK Ltd [2003] EWCA Civ. 995, [2003] ECDR 1 [10.12]

Fraser-Woodward Ltd. v. British Broadcasting Corporation [2005] EMLR 22 (Ch.D.) [10.25]

Godfrey v Demon Internet Ltd [2001] QB 201 [3.31]

Hyperion Records Ltd. v. Sawkins [2005] EWCA Civ 565 (Court of Appeal) [6.21]

Jefferys v. Boosey (1885) IV H.L.C. 815; 10 E.R. 681, HL [2.20]

Nouveau Fabrics v Voyage Decoration Ltd [2004] EWHC, April 28, 2004 (Ch.D.)[7.13, 7.15(f)]

Pamela Brighton and Dubbeljoint Theatre Co. Ltd. [2004] EIPR EWHC 1157 (Ch.D.) [5.03]

Peer International Corp. v Thermidor Music Publishers Ltd. [2002] EWHC 2675, [2003] EWCA Civ 1156 (CA) [3.23]

Pro Sieben AG v. Carlton UK Television Ltd. [1999] EMLR 109 [10.25] Shetland Times v Wills and Anor (for report references see main text Case List) [9.28, 13.49]

Sony Computer Entertaiment Inc. v Owen (for report references see main text Case List) [13.56]

1-800 Contacts Inc. v. WhamU.com 69 USPQ 2d 1337 (SD NY, December 22, 2003) [13.49]

321 Studios v Metro Goldwyn Mayer Studios Inc (ND Cal., February 19, 2004) [13.49]

Abilene Music Inc. v. Sony Music Entertainment Inc. 67 USPQ 2d 1356 (SDNY, June 16, 2003) [10.29]

Aimster Copyright Litigation 334 F.3d 643 (7^th Cir., June 30, 2003) [13.48]

Arista Records Inc. v Sakfield Holding Co 314 F. Supp. 2d 27 (D DC , 2004) [3.18]

Assessment Technologies of Wisconsin LLC v. WIREdata Inc 68 USPQ 2d 1953 (7th Cir. 2003) [6.18]

ATC Distribution Group Inc. v Whatever it Takes Transmission Parts Inc and ors (5^th Cir., March 30, 2005) [7.14, footnote 97]

Batesville Services Inc. v Funeral Depot Inc. (SD Ind. November 10, 2004, note in BNA PTCJ December 24, 2004, p.202) [13.40, footnote 83]

Boyd’s Collection Ltd. v Bearington Collection Ltd., (M.D. Pa, March, 21, 2005, note in BNA PTCJ, April 1, 2005, p.570) [6.04, footnote 13]

Bill Graham Archives LLC v Dorling Kindersley Ltd. and ors (SD NY, May 11, 2005) [10.29]

Bonneville International Corp. v. Peters 347 F. 3d 485; 68 USPQ 2d 1545 (3^rd Cir., October 17, 2003) [13.49]

Bridgeport Music Inc. v Dimension Films (6^th Cir., September 7, 2004) [13.21]

Capitol Records Inv. v Naxos of America Inc. (2^nd Cir., April 5, 2005) [2.20]

Chamberlain Group Inc. v. Skylink Technologies Inc. 68 USPQ 2d 1009, 68 USPQ 1948 (ND Ill., August 29, 2003; November 13, 2003); 381 F 3d 1178 (Fed Cir., 2004)) [13.56]

Chicago Board of Education v Substance Inc. (7th Cir., December 31, 2003) [10.29]

Cosmos Jewellery Ltd. v Po Sun Hon Co (CD Cal, April 5, 2004) [6.17]

CoStar Group Inc. v. Loopnet Inc 373 F 3d 544 (4^th Cir., 2004) [13.49]

Covington Industries Inc. v Nichols (SD NY, April 12, 2004) [7.15]

Dastar Corp. v. Twentieth Century Fox Film Corp. et al 123 S. Ct. 2041 (June 2, 2003) on re-hearing C.D. Cal. October 14, 2003, 68 USPQ 2d 1538 [8.11]

DVD Copy Control Association Inc. v. Bunner 68 USPQ 2d 1385 (Cal., SC) [2.75]

Ellison v American Online Inc (9th Cir., February 10, 2003) [13.49]

Elvis Presley Enterprises Inc. v Passport Video 349 F 3d 622 (9^th Cir., Nov.6, 2003, cert. denied 124 S.Ct. 2778) [10.29]

Galiano v Harrah’s Operating Co. (5^th Cir., July 7, 2005, note in BNA PTCJ, July 15, 2005) [6.04, footnote 13]

Gaiman v McFarlane 360 F 3d 644 (7^th Cir., 2004) [5.03]

Gilliam v. American Broadcasting Companies (for report references see main text Case List) [8.11]

Henrickson v Amazon.com Inc. 69 USPQ 2d 1471 (CD Cal, December 8, 2003) [13.44]

Hyperlaw v West Publishing are reported under Matthew Bender & Co v West Publishing Co at 158 F3d 674 and 158 F 3d 693 [2.91]

Kelly v Arriba Soft Corp. 280 F 3d. 934 (9^th Cir. 2002), 336 F.3d 811 (9^th Cir. 2003) [13.40]

Lamps Plus Inc v Seattle Lighting Fixture Co 69 USPQ 2d 1347 (9th Cir, 2003) [6.04]

Lexmark Intl. Inc. v Static Control Components Inc. 253 F. Supp 2d 943 (ED Ky 2003); 387 F 3d 522 (6^th Cir. 2004) [13.56]

Marvel Entertainment Inc. v NC Soft Corp., (action commenced CD Cal, 2005, note in BNA PTCJ February 25, 2005) [6.17]

Mattel Inc. v. Goldberger Doll MFG.Co. 70 USPQ 2d 1469 (2nd Cir., April 16, 2004) [7.15]

Mattel Inc. v. Walking Mountains Productions 69 USPQ 2d 1257 (9th Cir., December 29, 2003) [10.29, 13.29]

Metro-Goldwyn-Mayer Studios Inc. v. Grokster Ltd et al 259 F. Supp 2d 1029; 66 USPQ 2d 1579 (C.D. Cal. April 25, 2003); 380 F 3d 1154 (9^th Cir. 2004); case remanded June 27, 2005, 125 S.Ct. 2764 [13.41]

Morganactive Songs v K & M Fox Inc. (SD Ind., March 29, 2005, note in BNA PTCJ April 29, 2005, p.695) [32.03]

In re Napster Inc. Copyright Litigation, (ND Cal., May 31, 2005, notes in BNA PTCJ May 20, June 10, 2005) [9.05, 13.48]

Nautical Solutions Marketing Inc. v Boats.com 74 USPQ 2d 1434 (MD Fla., April 1, 2004) [13.49]

Newton v Diamond 349 F 3d 591 (9th Cir., 2003) [13.21]

Open Source Yoga Unity v Choudhury, ND Cal, April 1, 2005, note in BNA PTCJ April 8, 2005, p.589 [6.18]

Paramount Pictures Corp v 321 Studios (SD NY, March 3, 2004) [13.49]

Philips v. Pembroke Real Estate Inc. 288 F. Supp 2d 89 (D. Mass, Oct. 24, 2003) [8.25]

Pivot Point International Inc. v Charlene Products Inc (7^th Cir., June 25, 2004, note in BNA PTCJ July 16, 2004) [6.04]

Recording Industry Association of America Inc. v. Verizon Internet Services Inc. 351 F. 3d 1229 (C.A. D.C., December 19, 2003, cert. denied 125 S. Ct. 309, 347), see also Verizon Internet Services Inc. [13.49]

Recording Industry Association of America v Charter Communications Inc. (8^th Cir., January 4, 2005, note in BNA PTC January 7, 2005) [13.49]

Rosenberg v P K Graphics, (SD NY, May 10, 2004) [3.18]

Sahuc v. Tucker 69 USPQ 2d 1849 (DC E Louisiana, February 2, 2004) [7.14, 13.49]

San Francisco Arts & Athletics Inc. v. United States Olympic Co. 483 US 522, 536 [2.75]

Sativa v Lowry 323 F 3d 805 (9th Cir., 2003) [6.17]

Sony Music Entertainment Inc v. Does, (SD NY, July 26, 2004, note in BNA PTCJ, August 6, 2004, p.412) [13.41]

Swirsky v. Carey (9^th Cir., July 12, 2004, note in BNA PTCJ July 23, 2004) [6.10, footnote 28]

Thomas Publishing Company v. Industrial Quick Search Inc. 237 F. Supp 2d 489 (SDNY 2003) [3.31]

Ulloa v Universal Music & Video Distribution Corp. 303 F. Supp. 2d 409 (SD NY 2004) [7.14]

UMG Recordings Inc. v. Norwalk Distributors Inc. 68 USPQ 2d 1635 (C.D. Cal, March 13, 2003) [9.41]

US v Thompson 949 F. Supp 907 (D.D.C. 1996) [7.15]

Verizon Internet Services Inc. 240 F. Supp. 2d, 24 (Verizon I) and 257 F Supp. 2d 244 (Verizon II) (D DC 2003); 351 F. 3d 1229 (CA DC, 2003); cert. denied 125 S.Ct. 309, 347 [13.49]

Yahoo v LICRA 379 F 3d 1120 (9^th Cir. 2004) [2.75, 3.31]

British Horseracing Board v William Hill Organisation Ltd. (Case C-203/02) [2005] ECDR 1 and the associated cases Fixtures Marketing Ltd v. Oy Veikkaus Ab (Case C-406/02) [2005] ECDR 21, Fixtures Marketing Ltd. v. AB Svenska Spel (Case C-338-02) [2005] ECRD 32 and Fixtures Marketing Ltd. v. Organismos Prognostikon Agonon Podosfairu EC (Case C-46/02) [2005] ECDR 43 [26E.16]

IMS Health GmbH & Co DHG v NDC Health GmbH & Co Case C-418/01, Judgement of April 29, 2004 [26.20]

Lagadère Active Broadcast v SPRE and GVL, Case C-192/04, (July 14, 2005) [9.44, 26B.09(b)(iv), 26C.04]

Microsoft Corp. v. Commission, Case T-201/04R, (CFI, December 22, 2004) [2005] ECDR 19 [26.21(xii)]

Stichting ter Expoitatie van Naburige Rechten (SENA) v Nederlandse Omroep Stichtung (NOS), Case C-245/00, Judgement of February 6, 2003 [26B.09]

Commission Decision 2002/165/EC of August 13, 2003, 2003/741/EC, OJ L 268/69, October 18, 2003 [26.20]

[July 2004]

Berne Convention (1971)

Art.2(7) [18.03]

Art. 5(4)(c) [18.03]

2003 United States of America-Singapore Free Trade Agreement May 6 [25.09]

2003 United States of America-Chile Free Trade Agreement June 6 [25.09]

2004 United States of America-Australia Free Trade Agreement May 18, 2004 [25.10]

2004 Costa Rica, Guatemala, Honduras, Nicaragua and the United States Free Trade Agreement, May 25, 2004 [25.09]

(For new memberships, see paragraph 40.02).

(New instrument only)

A. European Union

2003 Council Regulation of July 22 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (1383/2003) O.J. L 192 02/08/03 P.007-0014 [26.06]

[January 2004]

Directive 2004/48/EC of the European Parliament and Council on the enforcement of intellectual property rights was adopted on April 29, 2004 [26.07]

(New laws and amendments to existing laws: selected references only)

2003 Urheberrechtsgesetz-Novelle [52.60]

2002 Act S.C. 2002, ch. 26 [9.28]

2002 Act No 1051 of December 17 [57.80]

1992 Code on Intellectual Property, 92-597 of July 1, 1992

art.L.214-1 [26B.09]

1965 Author’s Right and Related Protection Rights Law (articles included among those amended or inserted by amending laws 2002, 2003)

art. 5(1) [13.22]

art. 15(2)(2) [9.39]

art. 15(3) [9.39]

art. 17 [9.05]

art. 19a [9.39]

art. 22 [9.39]

art. 24(1) [13.22]

art. 31(4) [12.04]

art. 44a [10.23]

art. 46 [10.23]

art. 48 [10.23]

art. 50 [10.23]

art. 52 [10.23]

art. 52a [10.23]

art. 53 [10.23]

art. 56 [10.23]

art. 58 [10.23]

art. 60 [10.23]

art. 69a [13.54]

arts 73-83 [5.10]

art. 75 [3.50, 8.20]

art. 75(4) [12.04]

art. 77 [26.10]

art. 78(1) [9.39]

art. 79(2) [12.04]

art. 83 [6.38 footnote 39]

art. 85 [5.11, 11.14, 21.02 footnote 6]

art. 85(1) [9.39]

art. 85(2) [12.04]

art. 86 [5.11]

art. 87(2) [12.04]

art. 92 [12.05 footnote 13]

art. 93 [8.09(v), 8.24]

art. 94 [2.49(4)(a), 5.12, 6.40, 9.57]

art. 94(1) [8.24, 9.39]

art. 94(2) [8.24, 12.04]

art. 95(a)(b) [13.54]

art. 95(c) [13.61]

art. 95(d) [13.54, 13.61]

2002 Law of March 22 [12.04]

2003 Law of September 10 [60.20]

2002 Law 3057/2002 (Official Gazette A' 239/October 10, 2002) [60.50]

2003 Decree of April 9, no. 69 [62.90]

Mexico

2003 Decree of Amendments to Author's Right Law 1996 [66.50]

2002 Copyright Act, August [67.60]

1912 Author’s Right Law

art.25(1) [8.05]

1988 Copyright, Designs and Patents Act (sections included among those amended or inserted by SI 2003/2898)

s. 6 [9.09]

s. 6(1A) [9.28]

s. 7 [9.09]

s. 9 [13.34]

s.13A [11.14]

s. 16(1)(d) [4.07, 9.09, 9.40]

s. 20 [9.40, 13.49(a)]

s. 28A [10.24]

s. 29 [10.09, 10.25]

ss 29-72 [10.24]

s. 29(1) [10.09]

s. 29(1B) [10.09]

s. 29(1C) [10.09]

s. 30 [10.24, 10.25]

s. 30(1A) [10.25]

s. 30(3) [10.25]

ss 32-36A [10.26]

ss 37-44 [10.26]

ss 45-50 [10.26]

ss 50A-50C [10.26]

ss 57-72 [10.26]

s. 70 [10.05]

s. 97A [13.34]

s. 296 [13.52, 13.56]

ss 296A-296E [13.52]

ss 296ZA-296ZF [13.56]

s. 296ZG [13.61]

Sched. 2 [10.26]

Sched. 5A [13.52]

2003 Copyright and Related Rights Regulations 2003 (SI 2003/2498) [75.60]

1976 Copyright Act

s.106 [13.49]

s.106(3) [9.05]

s.107 [32.03]

s.114(b) [13.21]

2005 Family Entertainment and Copyright Act 2005 [14.01]

2005 Artists’ Rights and Theft Prevention Act ("ART Act") [9.05, 14.01]

2005 Family Movie Act [14.01]

On February 10th 2004, UNESCO announced the launch of their online Collection of National Copyright Laws, available at www.unesco.org/culture/copyrightlaws

The address of the Queen Mary Intellectual Property Research Institute research site is

http://www.qmipri.org/icps.html.

[January 2004]

1.08 For a study of the approaches to basic issues, and registration, in the British Act of 1710 and Prussian Law of 1837, and later legislation, see F. Kawohl, M. Kretschmer, "Abstraction and registration: conceptual innovations and supply effects in Prussian and British copyright (1820-1850)" [2003] IPQ 211.

[January 2004]

2.08 footnote 11 See also Church of Scientology v Spaink, CA Hague, September 4, 2003 (quotations from allegedly confidential material allowable under quotation exemption (documents concerned having been previously circulated to extensive number of Church members); as regards ECHR Article 10, general public interest outweighed that of plaintiff).

[July 2004]

2.20 In Capitol Records Inv. v Naxos of America Inc. (2^nd Cir., April 5, 2005) the question was whether copying and sale of sound recordings made and marketed in the United Kingdom and out of copyright in that country, were still protected under the law of New York State against unauthorised copying and sale. The recordings in issue were made in the 1930’s in England by an English company, and under UK copyright law the copyright in the recordings had expired. The recordings were not protected under the US Copyright Act because they had been made before 1972. In the US, pre-1972 recordings may enjoy copyright under State law, so the question arose whether these recordings were protected under the common law of the State of New York. The Second Circuit held that they were so protected (at least until federal pre-exemption in 2067) there being under common law no fixed term of protection of unpublished works, and that "in the absence of federal statutory protection, the public sale of a sound recording otherwise unprotected by statutory copyright does not constitute a publication sufficient to divest the owner of the common law copyright protection". Consequently, the defendant was not entitled to defeat the plaintiff’s claim for infringement of copyright in the recordings. In Jefferys v. Boosey (1885) IV H.L.C. 815; 10 E.R. 681, (HL) Lord St. Leonards said (at 979) "The common law cannot extend to a foreigner resident abroad, and owing no allegiance to this country". The opinions on this point expressed in the other opinions in the case were divided (see discussion in Sterling and Carpenter Copyright Law in the United Kingdom, Legal Books 1986, paragraphs. 2A13, 2A15); the report of Capitol v. Naxos does not indicate that the Court considered the above-quoted view of Lord St. Leonards.

[September 2005]

Article 94 of the German Law has been amended by the Law of September 10, 2003 (see paragraph 60.20) to embrace the "public making available" right for film producers (cf main text paragraph 9.39).

[January 2004]

2.59(1)(b) Several attempts have been made in the United States to obtain the passage of Bills giving protection against misappropriation of contents of databases, so far without success. The Bills concerning database content protection currently before Congress are HR 3261 and HR 3872: see BNA PTCJ, April 9, 2004, p.552.

[July 2004]

For summary of protection available for databases under US law, and history of Bills introduced into but not passed by Congress, see Blochlinger, K.B., "Database protection" (BNA PTCJ, March 4, 2005, p.452).

[September 2005]

2.75 (c) Yahoo v LICRA: the Court of Appeals of the 9^th Circuit reversed the decision of the District Court, holding by majority that the District Court had no personal jurisdiction over the French parties (379 F 3d 1120). Briefly summarised, Yahoo was plaintiff in the California action, seeking to prevent the French parties from being able to enforce in California the judgement they had obtained in France against Yahoo. The French parties were thus the defendants in the California proceedings, and the District Court held it had personal jurisdiction over them, going on to hold that enforcement of the French judgement would be contrary to the First Amendment. However, the Appeals Court held that the District Court did not have personal jurisdiction over the French parties. Quaere, the precedential value of the District Court’s findings on the First Amendment point when it has been held that the Court did not have the necessary personal jurisdiction.

[September 2005]

2.75 (e) For commentary on the Elcom case, see Ginsburg, J.C., "Developments in US Copyright since the Digital Millennium Copyright Act" (2003) 196 RIDA 127, (2003) 197 RIDA 77.

[January 2004]

footnote 33 In DVD Copy Control Association Inc. v. Bunner (68 USPQ 2d 1385), the California Supreme Court reversed and remanded the Court of Appeal’s decision, and held (1) that the preliminary injunction did not violate the free speech clause of the United States and California Constitutions, assuming the trial court properly issued the injunction under California’s trade secret law, and (2) that on remand the Court of Appeal should determine the validity of this assumption. Supreme Court Justice Brown said that the trial court issued the injunction to protect the plaintiff’s statutorily created property interest in information, and not to suppress the content of Bunner’s communications. The governmental purpose behind protecting trade secrets like the CSS technology through injunctive relief is wholly unrelated to their content. The preliminary injunction necessarily served the broader governmental purposes behind the law, and because the injunction did not purport to restrict the plaintiff’s trade secrets based on their expressive content, the injunction’s restrictions on Bunner’s speech properly are characterised as incidental to the primary purpose of California’s trade secret law - which is to promote and regard innovation and technological development and maintain commercial ethics (San Francisco Arts & Athletics Inc. v. United States Olympic Co. 483 US 522, 536). The First Amendment does not prohibit courts from incidentally enjoining speech in order to protect a legitimate property right. The preliminary injunction burdens no more speech than necessary to serve the government’s interest in encouraging innovation and development (68 USPQ at 1391-1393).

[January 2004]

On remand, the California Court of Appeal, charged by the California Supreme Court to determine whether the evidence in the record supported the factual findings necessary to establish that the preliminary injunction was warranted under California's Uniform Trade Secrets Act, decided that such evidence did not support such findings (February 27, 2004; 69 USPQ 2d 1907). The plaintiff had not presented the required evidence, and thus had not shown a likelihood of success on the merits etc. The preliminary injunction was therefore an unlawful prior restraint on the Bunner's right to free speech and should not have been issued. However, this was not a final adjudication on the merits; the ultimate determination of trade secret status and misappropriation would be subject to proof to be presented at the trial.

[July 2004]

2.91 The decisions in the appeal in Hyperlaw v West Publishing are reported under Matthew Bender & Co v West Publishing Co at 158 F3d 674 and 158 F 3d 693, the first decision concerning the editorial enhancements issues, and the second with "star pagination": see main text paragraphs 6.18, 6.21, 7.15, 7.17.

[September 2005]

3.15 An extensive analysis and survey of private international law issues in the context of the Internet was presented at the ALAI Study Days, Neuchâtel 2002. Among the papers presented were those on applicable law (Professor André Lucas), draft Principles on Jurisdiction and Recognition of Judgements (texts with commentary) (Professor Rochelle C. Dreyfuss and Professor Jane C. Ginsburg), and draft International Copyright Protection Agreement and associated Protocols on Interpretation of the WIPO Treaties 1996, Extraterritorial Use of Protected Material and Limitation of Liability of Service Providers (Professor J.A.L. Sterling). See ALAI Study Day Documents, Neuchâtel 2002, Copyright-Internet World (Groupe Suisse de l’ALAI, Berne 2003, ISBN 3-905 106-0305).

3.15, footnote 23 For a detailed study in which the particular problems of conflicts rules are considered, see M. van Eechoud Choice of law in copyright and related rights: alternatives to lex protectionis, Kluwer Information Law series 12, 2003, in particular, Chapters 4 and 6.

[January 2004]

3.18, footnote 27 Complex questions continue to arise in the United States as to the definition of "doing business" in a State in order to establish personal jurisdiction in that State: see eg Rosenberg v P K Graphics, (SD NY, May 10, 2004) (no personal jurisdiction where site only "somewhat interactive" and did not allow visitors to make purchases online). However in Arista Records Inc. v Sakfield Holding Co (D DC, February 22, 2004), the Court found general and specific jurisdiction (on basis of sufficient contacts) over a site owner based in Spain where District of Columbia residents in fact accessed the defendant's website and downloaded music files from it.

[July 2004]

3.22 Among cases concerning the application of the law of the country where the alleged infringement took place are the French case "Sisro", Cass., March 5, 2002, (2003) 34 IIC 701 (in determining non-contractual liability, law of country where infringement took place applies) and the German case "Spielbank affair", BGH, October 2, 1997, [1999] 30 IIC 227) (claim in Germany for alleged infringement in Luxembourg) may be mentioned. However, the complex questions which may arise in the various issues await further analysis. Examples include the law to apply (where the case is brought in Country A and the alleged infringement takes place in Country B, and Country A has jurisdiction) to determine (1) ascription of authorship (X is an author (e.g. cameraman) according to law of Country B but not according to law of Country A); (2) validity of assignments or purported assignments; (3) liability for an act (eg unauthorised display of an artistic work) which is an infringement in Country B but not in Country A. It is hoped to include references to new research on these questions in future updates.

[July 2004]

For a German case concerning the application of the Internet "making available" right in the country of access, and the application of German law (as the law of the country where protection is invoked) where the copy is modified and uploaded abroad and accessed in Germany, see "Thumbnails" Landgericht, Hamburg, September 5, 2003, note in (2004) 35 IIC 478. See also paragraph 13.40 footnote 83.

[September 2005]

For current text of proposed "Rome II" Regulation concerning the law applicable to non-contractual obligations, under discussion in the European Parliament and Council, see http://europa.eu.int/

[September 2005]

3.23 footnote 35 Another question concerns the validity of transfers or assignments taking place in a foreign country, where, for instance, the requirement (e.g. writing) of the local law is not met, or where the foreign transfer or assignment is invalid under the foreign law. For the position in the UK, see Peer International Corp. v Thermidor Music Publishers Ltd. [2002] EWHC 2675 (Ch.), [2003] EWCA Civ 1156 (CA).

[January 2004]

3.31 Canada

(a) For the Canadian Supreme Court judgement of June 30, 2004, in the "Tariff 22" case appeal, see paragraph 9.28.

[July 2004]

France

(b) Vasarhelyi v Guiness World Records Ltd, TGI Paris, February 8, 2002 (Case 01/19480) [2003] ECDR 14. The Court held that it had jurisdiction to hear an action in which the plaintiff claimed (as held, unsuccessfully) infringement of author’s right where a book was directed for sale through Internet websites which were accessible in France.

[January 2004]

(b) Godfrey v Demon Internet Ltd [2001] QB 201. Defamatory material was posted on a newsgroup website in the USA, and was accessible from a UK website controlled by the defendant service provider, to whom notice of the defamatory nature of the material had been given, but who did not take down the material. Held, transmission of the material from the defendant’s website and access of it by a subscriber constituted publication of the material by the defendant. Cf. main text, paragraph 3.31, Australia (a).

(i) Thomas Publishing Company v. Industrial Quick Search Inc. 237 F. Supp 2d 489 (SDNY 2003). Out-of-State defendant used plaintiff’s material on its interactive website and solicited business etc. in New York via this facility. Held, the court had personal jurisdiction over the defendant, on the basis of a tortious act outside New York causing injury in that State, and on the "long arm" basis of transacting business in the State (the website being accessible in the State).

[January 2004]

(g) Yahoo v LICRA: On the finding on appeal that the District Court did not have personal jurisdiction over the defendant, thus reversing the District Court’s decision, see paragraph 2.75(c).

[September 2005]

3.50 (ii) Germany

With reference to the performer’s right to protection against distortion of the performance, see now article 75, as formulated by the Law of September 10, 2003 (see paragraph 60.20), replacing the former article 83, and paragraph 8.20.

Consequential amendments have been made to articles 125 to 127 of the 1965 Law, by the Law of September 10, 2003 (see paragraph 26.20), to reflect the reformulation of the provisions on performers’ rights (see paragraph 5.20).

[January 2004]

4.07 Amendments to the UK Act effected by Statutory Instrument 2003/2498 came into force on October 31, 2003 (see paragraph 75.70), and, inter alia, make "to communicate the work to the public" an act restricted by copyright, replacing in section 16(1)(d) the former restricted act "to broadcast the work or include it in a cable programme service" (reg.6(2)). See paragraphs 9.09, 9.40 below.

[January 2004]

The view expressed in the main text that communication consists of transmission and reception is supported by the statement of the Supreme Court of Canada in the "Tariff 22" case that an Internet communication occurs at a minimum "in the country of transmission and the country of reception": see paragraph 9.28 and main text paragraphs 9.28, 9.33.

[July 2004]

Performance of music by playing music by radio and recordings to customers in taxi, held, in public: Teosto v Taxi Driver, Supreme Court, Finland, December 3, 2002, [2004] ECDR 3

[September 2005]

4.10 For analysis of the arguments for and against the submission that under German law Internet dissemination constitutes publication, see C. Sussenberger, C. Czychowski, "The "publication" of works via the Internet …. Arguments for and against" (2004) 35 IIC 46.
[July 2004]

For the special situation under US copyright law in respect of publication of sound recordings, see paragraph 2.20 (Capitol v Naxos (2^nd Cir., 2005)).

[September 2005]

4.12 See paragraph 9.09 as regards the meaning of "broadcast" following the amendments to the UK Act which came into force on October 31, 2003.

[January 2004]

5.03 For a case concerning a claim of joint authorship of a play, in respect of a draft script provided by the director of the play to the author, see the UK case Pamela Brighton and Dubbeljoint Theatre Co. Ltd. [2004] EIPR EWHC 1157 (Ch.D.), and comment by Christy, L., in [2004] EIPR 472 (analysing issues and distinguishing UK and US tests for joint authoship).

[September 2005]

For case where the French dictionary Petit Robert was held to be a collective work, see Robert v. Dictionnaires Le Robert , Cass. 1 civ., November 16, 2004 (2005) 204 RIDA 236, note by Kéréver at 166.

[September 2005]

Where one person described, named and wrote the dialogue for each character and another person drew the characters, held, joint ownership of copyright: Gaiman v McFarlane 360 F 3d 644 (7^th Cir., 2004).

[September 2004]

For case concerning scene director’s and photographer’s joint authorship of photograph, see the French case Sorbelli v Yoshida, paragraph 6.72 France

[September 2005]

5.06 footnote 32 For the decision of the US Supreme Court in the Dastar case, denying relief under the Lanham Act in respect of omission of author’s name on work out of copyright, see paragraph 8.11.

[January 2004]

5.10 German Law

Articles 73 to 83 have, in implementation of the EC Information Society Directive, been amended by the Law of September 10, 2003 (see paragraph 60.20). Article 73 now defines a performing artist, in the meaning of the Law, as one who performs, sings, plays or in some other way presents (darbietet) a work or an expression of folklore or who collaborates artistically in such a presentation.

Article 74(1) grants the performer the right to be acknowledged in relation to his performance, and to determine the name by which he is to be known in this connection; article 75 grants the performer the right to prohibit a distortion (Entstellung), or other deformation (Beeinträchtigung) of his performance which may prejudice his image (Ansehen) or reputation as a performer (cf. WIPO Performances and Phonograms Treaty, Article 5). Article 76 deals with the duration of the rights granted by articles 74, 75 (basically, the rights expire on the death of the performer, but 50 years after the performance, if the performer dies before the expiration of these 50 years, and not before the end of the period of protection of the exploitation rights (cf. article 82, see below)). Article 77(1) grants the performer the exclusive right to record his performance on image or sound carriers. Article 77(2) grants the performer the exclusive right to reproduce and distribute image and sound recordings of his performance. Article 78(1) grants the performer the rights, as regards his performance (1) to make the performance publicly available (cf. article 19a, see paragraph 9.39 below), (2) to transmit the performance (with exception concerning lawful performances, in which case a remuneration right applies (see below)), (3) to make the performance perceptible outside the room in which it is given, by means of screen, loudspeaker etc. Article 78(2)(3) grants a remuneration right to the performer in respect of transmissions or public performance of recordings. Article 79 deals with licensing of rights, article 80 with performances by several performers, article 81 with the protection of event organisers, article 82 with duration of rights (basically 50 years following the publication of the recording, or if first public communication took place earlier than such publication, then 50 years following such communication; but 50 years following the performance if neither such publication or communication takes place) (there are also special rules based on 25 years protection period for the organiser’s right under article 81). Article 83 deals with exceptions to performers’ rights (the previous article 84, now repealed).

[January 2004]

5.11 German Law

Articles 85, 86 of the German Law have, in implementation of the EC Information Society Directive, been amended by the Law of September 10, 2003 to embrace the "public making available" right (cf. paragraphs 9.39, 60.20).

[January 2004]

5.12 For extensive analysis of the issues involved in national law provisions on protection of cinematographic works and recordings, see P. Kamina, Film copyright in the European Union (Cambridge 2002) and G. Poll, "The harmonisation of film copyright in Europe" (2003) 50 Jour. Copr. Soc’y 519.

Article 94 of the German Law has been amended by the Law of September 10, 2003 (see paragraph 60.20) to embrace the "public making available" right for film producers (cf paragraph 9.39).

[January 2004]

United States

6.04, footnote 13 With reference to Mazer v Stein, compare Lamps Plus Inc. v Seattle Lighting Fixture Co 68 USPQ 2d 1347 (9th Cir. 2003) (mechanical combination of four pre-existing ceiling-lamp elements with a pre-existing table-lamp base did not result in the expression of an original work of authorship: the design features could not be identified separately from and were not capable of existing independently of the utilitarian aspects of the lamp's component parts (Copyright Act, s.101); consequently there was no copyright in the combination as claimed).

[July 2004]

In the US case Pivot Point International Inc. v Charlene Products Inc (7^th Cir., June 25, 2004, note in BNA PTCJ July 16, 2004), the Court held that a beauty school mannequin head had separable sculptural and utilitarian features, it being the product of its designer’s artistic judgement, unconstrained by considerations of precise and anatomical dimensions. One of the difficulties faced by US courts is the adoption of a satisfactory test for determining whether the artistic aspects of a useful article can be identified separately from and exist independently of the article’s utilitarian function, as stated in Galiano v Harrah’s Operating Co. (5^th Cir., July 7, 2005, note in BNA PTCJ, July 15, 2005). In that case, the court referred to a test whether designs for garments are marketable independently from their utilitarian function, and to the distinction made in Nimmer on Copyright between fabric designs (generally protectable) and dress designs (not protectable where no artistic elements which can be separate from the garment’s utilitarian use).

[September 2005]

Clothing for toy teddy bears, where giving a different "look and feel" to the appearance, were not excluded from copyright protection on the basis that such clothing constitutes a "useful article": Boyd’s Collection Ltd. v Bearington Collection Ltd., (M.D. Pa, March, 21, 2005, note in BNA PTCJ, April 1, 2005, p.570).

[September 2005]

6.06 In Lancôme v. Kecofa et al the Den Bosch Court of Appeal, Netherlands, decided on June 8, 2004 (Case CO200726/MA), [2005] ECDR 5 that the composition of the components of the claimant’s perfume showed the required originality and bore the personal stamp of the maker to a sufficient degree to justify protection by author’s right under the Dutch Authors Law (Auteurswet) 1912. Furthermore the Court found infringement by the defendant’s unlawful reproduction of the claimant’s perfume. Among the points of particular interest in the case is the Court’s finding that the analysis concerning subsistence and infringement should be related to the components of the perfume, not its scent.

[September 2005]

6.10 footnote 28 A number of cases demonstrate the difficulties in assessing what constitutes a musical work, and tests for similarity in connection with infringement of copyright as regards music. Thus in the UK case Coffey v. Warner/Chappel Music Ltd [2005] EWHC 449 (Ch), a claim that copyright subsisted in a continuation of voice expression (timbre), pitch contour and syncopation failed. In the US case Swirsky v. Carey (9^th Cir., July 12, 2004, note in BNA PTCJ July 23, 2004), it was held that, in testing for similarity, pitch, sequence and rhythm could not be divorced from harmonic chord progression, tempo and key in order to support (even where these elements were unprotected) a conclusion that compositions being compared are dissimilar.

[September 2005]

6.12 (i) In C-Villas Austria, Oberster Gerichtshof, July 10, 2001, Case 4 Ob 155/01, (2003) 34 IIC 223, the plaintiff designed a website for the purpose of advertising villas which were available for renting in the Caribbean Islands. The website consisted of a map of the islands, available villas, airport etc., various photographs and links to pages illustrating and giving details of available villas. The defendant copied the website, substituting details of the villas which he managed for those shown on the plaintiff’s website. The Austrian Supreme Court held that the protection available to a web page under author’s right law can apply to the underlying file, which may be protected as a computer program, and to the user interface (the visible layout of the web page), which may be protected as a database work, or a database, or a work of literature, an illustration, a work analogous to cinematography or as a work of fine art. The plaintiff claimed protection for the entire website (i.e. the home page and the web pages connected to it by links) as a database work. The Court held that if a number of web pages are connected by links, forming a systematically arranged site, there may be a database work if the individual pages are independent of each other (cf. EC Database Directive, Article 3(1)); this was the case here, and the Court found there was the necessary personal intellectual creation in the arrangement. The plaintiff was the author of the database work and of the photographs, and was entitled to an injunction. Appeal on law upheld.

(ii) For an extensive analysis of the issues concerning protection of websites, see M. Leistner, "Creating cyberspace – intellectual property law and competition law protection of the website designer" (2003) 34 IIC 132.

footnote 38 Wrapped Reichstag II is also reported in (2003) 34 IIC 570 (with photographs).

[January 2004]

6.17

United States

(d) Cosmos Jewellery Ltd. v Po Sun Hon Co (CD Cal, April 5, 2004): plaintiff designed jewellery to resemble blossoms of plumeria tree, and alleged that defendant had copied the designs. Defendant relied on Sativa v Lowry 323 F 3d 805 (9th Cir., 2003) concerning jellyfish in glass sculpture, but Court held that depictions of live animals may be protected where expression of attitude, gesture etc. of the animal was original, and here the plaintiff married the pose, texture etc. of the blossoms in an original way.

[July 2004]

Interesting questions are arising in relation to claims that the creation of characters (by "character creation engines" operated by players) in video games may infringe the copyright in existing characters: see note on action commenced in Marvel Entertainment Inc. v NC Soft Corp., (CD Cal., 2005) note in BNA PTCJ February 25, 2005.

[September 2005]

6.18

United States

(f) Assessment Technologies of Wisconsin LLC v. WIREdata Inc 68 USPQ 2d 1953 (7th Cir. 2003): copyright protection for structure of real estate assessment programme in which data is collected in specific fields and categories, but no protection against extraction of data inserted in the programme structure where the structure was not copied, since data items were not themselves protected. (The case demonstrates the lack of a specific right protecting items of data; cf the EC sui generis right (main text paragraph 26E.06(b), and paragraph 2.59.))

[July 2004]

(g) Open Source Yoga Unity v Choudhury, ND Cal, April 1, 2005, note in BNA PTCJ April 8, 2005, p.589 concerned a claim for copyright in compilation of yoga exercises. It was held that sequences of yoga exercises (here, 26 positions and two breathing exercises) may be the subject of copyright protection as a compilation, if the poses are arranged in a sufficiently creative manner. While copyright law does not protect factual or functional information, a compilation of that material may qualify for protection if the compiler can demonstrate a level of creativity in the selection and arrangement of the elements in the compilation (cf. Feist case, main text paragraph 7.10). Games and sports activities in general cannot be the subject of copyright because these activities are unscripted and do not involve a fixed routine or motions. Here the yoga sequence was a predetermined sequence of exercises performed in the same way many times without a competitive element. If copyright were found on trial, the plaintiff could prevent exact or near-exact duplications of his yoga sequence.

[September 2005]

6.20 Under US copyright law, laboriously compiled lists of facts are not entitled to copyright unless they result from the investment of a "modicum of creativity" (see Feist case, main text paragraph 7.14). Previous attempts to obtain legislation protecting "sweat of the brow" compilations were not successful. A new proposal for protection of databases being collections of factual information is contained in a bill (HR 3261) introduced to Congress by Rep. Howard Coble on October 8, 2003. The bill, with some amendments, continues to be considered by Congress: see BNA PTCJ, October 24, 2003, 687.

[January 2004]

For summary of protection available for databases under US law, and history of Bills introduced into but not passed by Congress, see Blochlinger, K.B., "Database protection" (BNA PTCJ, March 4, 2005, p.452).

[September