Copyright infringement and enfrocement

Question 1

Protection subject matter: is a subject of dispute eligible for copyright protection?

Answer 1

idea / expression dichotomy
fixation
originality principle

Question 2

Exclusive rights: is the behaviour in question covered by exclusive rights?

Answer 2

positive right and negative right

infringement cases: economic rights and moral rights

Question 3

Majority of copyrights are

Answer 3

negative rights since the purpose of copyright law is to exclude others

Question 4

Two forms of infringement

Answer 4

direct infringement - primary liability

indirect infringement - secondary liability

Question 5

Limitations/exceptions: is there any limitation/exception that justifies the infringement?

Answer 5

limitations list in the EU law versus fair use clause in the US (fair dealing in the UK)

Question 6

Technological Protection Measures (TPM)

Answer 6

Introduced in Art 11 WCT with function to prevent.

Covers also acts not authorised by rightholder

Question 7

TRIPS Agreement on enforcement measures

Answer 7

1. civil/administrative procedures and remedies
2. provisional measures
3. border measures
4. criminal procedures

Question 8

civil/administrative procedures and remedies

Answer 8

injunctions, damages,

function: to compensate

TRIPS provides a flexible approach.

Question 9

provisional measures

Answer 9

can be ordered to prevent an infringement of an intellectual property right from occurring, or
to preserve relevant evidence with regard to the alleged infringement.

Question 10

border measures (counterfeit or pirated goods)

Answer 10

applicant has to provide adequate evidence that there would be a prima facie infringement under the laws of the importing country, as well as a sufficiently detailed description of the goods to make them readily recognisable.

Question 11

criminal procedures

Answer 11

art. 61 TRIPS Agreement: criminal penalties and procedures to be available for all “commercial scale” copyright piracy and trademark counterfeiting.

Question 12

EU Law - the Enforcement Directive

Answer 12

all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement;

Question 13

Not only the Enforcement Dir. is applicable in cases of IP enforcement

Answer 13

also e-commerce directive (2004)

and the Digital Single Market Directive (790/19)

Question 14

Ecce homo

Answer 14

the destruction of cultural heritage is priceless; nevertheless the question arise in regard of subsistence of copyright.

Question 15

Erased de Kooning

Answer 15

an act of erase as a performance alone would not qualify as a copyright’s subject matter since there is no fixation,

an act of destruction on an object would not be considered as an infringement, since it is a destruction of carrier, not the work alone,

Question 16

Deckmyn case

Answer 16

a broad interpretation of limitations by the CJEU - covers also personal interest of rights