News

ECJ: NO COPYRIGHT PROTECTION FOR THE TASTE OF FOOD PRODUCT

23/11/2018

On November 13, 2018, the ECJ issued its judgement in the case which involves two Dutch manufacturers of spreadable cream cheese dip stating that the copyright cannot vest in the taste of a spreadable cheese.

 

In 2007 a spreadable dip with cream cheese and fresh herbs “Heksenkaas” has been created and the intellectual property right of such product belong to the Dutch company “Levola”. Since January 2014 another Dutch company “Smilde” has been manufacturing a product called “Witte Wievenkaas”, a spreadable dip with cream cheese, for a supermarket chain in the Netherlands. Levola brought an action against Smilde where it maintained that the sale of “Witte Wievenkaas” infringed its copyright in the taste of “Heksenkaas”. It, therefore, claimed that Smilde should cease production and sale of the product, since the taste of “Henksenkaas” is a work protected before copyright and that the taste of “Witte Wievenkaas” is a reproduction of that work.

Hearing the case on the appeal, the Gerechtshof ArnhemLeeuwarden (the Dutch Regional Court of Appeal) asked the ECJ whether the taste of a food product can be protected under the Copyright Directive (Directive 2001/29/EC).

The Court firstly noted that the notion of “work” is an autonomous concept of EU law, that is to be given an autonomous and uniform interpretation throughout the EU. Then the Court clarified that, in order to be protected by copyright under the Directive, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive. Classification as a ‘work’ requires, first of all, that the subject matter concerned is an original intellectual creation. Secondly, there must be an ‘expression’ of that original intellectual creation.

In accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights, which was adopted in the framework of the World Trade Organization and to which the EU has acceded, and with the WIPO Copyright Treaty, to which the EU is a party, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such.  It, therefore, follows that for there to be a “work” as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.

In that regard, the Court found that the taste of a food product cannot be identified with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable. They depend on, amongst other things, factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed. Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.


A NEW RULING OF THE EU COURT ON COPYRIGHT INFRINGEMENT AND ONLINE FILE SHARING

31/10/2018

In its judgment of October 18, 2018 (case C-149/17), the Court of Justice of the European Union ruled that the owner of an internet connection through which a copyright infringement has been committed cannot be exempted from liability simply by indicating a family member who had the opportunity to access the internet network in question.

 

The issue underlying the ruling involves a publishing house – owner of the copyright on an audiobook – acting against a German citizen requesting compensation for the damages resulting from the infringement of its copyright. In particular, the publishing house complained against the sharing of its audiobook, on a peer-to-peer platform, through the Internet connection of which the citizen was the owner, so that the audiobook could be freely downloaded by an unlimited number of users. The citizen owner of the internet network claimed that also his relatives could access the network and that for this reason he could not be considered as responsible of the infringement. The network owner also pointed out that according to the German legislation a similar line of defense would be sufficient to exclude his liability. The Court of Munich therefore addressed the Court of Justice of European Union in order to know if the applicable German law is in compliance with EU legislation on copyright.

The EUCJ held that even if a balance were to be struck between the right to respect family life, on the one hand, and the right of intellectual property, on the other hand, the latter would be unjustifiably infringed if it were considered sufficient to exclude the liability of the internet line owner the indication that the internet line is available also to his family members, without further evidence being provided as to when the connection was used by such family member and the nature of that use. In doing so, the Court maintains, the fundamental right to an effective remedy and the fundamental right of intellectual property protected by EU law and in particular by EU Directives 2001/29 and 2004/48 would be seriously infringed.


TICKETONE (AGAIN) IN THE TARGET OF THE ANTITRUST.

02/10/2018

With a press release dated 26 September 2018, the Italian Antitrust Authority (AGCM) announced the start of an investigation against TicketOne S.p.A. and its parent company, the German company CTS Eventim AG & Co. KGaA, to ascertain the existence of an abuse of the company’s dominant position in violation of Article 102 of the TFEU.

 

TicketOne is back in the Authority’s sights: already in the spring of 2017, following the reports resulting from the rapid exhaustion of tickets in the primary market and the sale at a higher price in the secondary market, TicketOne was fined by the Authority for about 1.7 million Euros.

This time, according to the AGCM, TicketOne in a dominant position in the market for ticketing services for live music events (pop and rock concerts), has implemented an exclusive commercial strategy in order to bind to its ticketing platform the most important organizers (promoters) of live music events active in Italy. Consequently, the access to an essential input for competing ticketing platforms to compete in the market, namely tickets for concerts, has been precluded.

The Authority also points out that the prejudice suffered by competing platforms is aggravated by the fact that the exclusivity clause contained in the contracts between the promoters and TicketOne is particularly stringent on the online channel, which is now the main means of distributing tickets for this type of event. The Authority then found a further profile of illegality, descending from the commercial strategy implemented by TicketOne. Such an abusive strategy could also harm final consumers, since, by hindering the presence on the market of competing operators, TicketOne can charge higher prices for pre-sale tickets for live music events than the competitive ones and limit the choice of consumers among the different providers of ticketing services.

The investigation will be concluded by 31 December 2019, at the end of which it will be decided whether and which sanctions will be applied.


ALSO A CONTRIBUTION OF SIMONA LAVAGNINI IN THE VOLUME “DIGITAL SINGLE MARKET AND CLOUD SERVICES”, WHICH WILL BE PRESENTED AT THE CHAMBER OF DEPUTIES ON OCTOBER 17, 2018.

27/09/2018

On the subject of legislation on cloud services, the new publication by Franzosi, Pollicino and Campus is available, entitled “Digital Single Market and Cloud Services”, to which Avv. Simona Lavagnini also contributed with the paper: “Legal Profiles of Cloud Computing: protection and management of computer programs”.

 

In the context of the Digital Single Market, the initiative to adapt the European single market to the digital age, we cannot help but consider some crucial issues that deserve particular consideration. Among these is undoubtedly that of the cloud, especially with reference to the problems that a technology of this type, which allows the storage, processing and transmission of data, can create with respect to the needs of protection of intellectual property, as well as the privacy associated with the circulation of data. The volume focuses on all aspects related to Cloud Services, both from a purely technical point of view, both from an economic and, above all, regulatory point of view, with a careful evaluation of the proposals for reform of the European Commission, as well as the most relevant Italian and European jurisprudential guidelines. The focus is particularly on the so-called Big Data, also assessing the potential new forms of responsibility for cloud managers.

In particular, the paper provided by Simona Lavagnini focuses on the profiles related to industrial and intellectual property rights in cloud-based technologies, analysing the relationship between the principle of exhaustion and the acts of software distribution. Among other things, the emphasis is on the strong process of dematerialization of the company structure, which is leading to the transition to a system in which the company accesses the intangible assets necessary for its activities through “pay-per-use” contracts, in which the use of data and content occurs for limited periods of time.

The volume, which makes use of the contributions, in addition to Avv. Lavagnini, also of many other jurists and leading professionals in the sector, will be presented on October 17 in Rome at the Chamber of Deputies, in the presence of the members of the Parliament’s innovation intergroup.


GPS AND COMPANY VEHICLE TRACKING – PRIVACY GUARANTOR DECLARES THAT THE GSP MUST ALSO RESPECT THE PRIVACY OF THE USERS

18/09/2018

For the first time with the provision n. 396 of June 28, 2018, the Privacy Guarantor ordered a provider of geolocation services to ensure that the functionality of the product respects the right to privacy, implementing the principle of data minimization and privacy by design and by default. In this way, the clients will have a system adaptable to all their organizational needs and security.

 

The Guarantor expressed his opinion following a report by an employee of a company that uses the geolocation service on its corporate fleet. According to the employee the characteristics of the system did not comply with the rules on privacy.

From the verifications carried out by the Authority, together with the collaboration of the Guardia di Finanza, it emerged that the system allowed the continuous monitoring of the activity of the employees without the employees being aware of it, which is in violation of the principle of necessity and proportionality. In addition, since employees’ cars could also be used outside working hours and by their families, the geolocation system made it possible to collect information on the employee and other subjects that was not relevant to the performance of the working activities. This is also in violation of Article 8 of the Workers’ Statute as well as the rights of the third parties.

The Guarantor, therefore, intervened by forbidding the company, which had installed the system on its fleet vehicle, the processing and use of data collected. The Guarantor also required the provider of geolocation services to adapt the system to the European rules on data protection by establishing the following conditions that must be complied with for the legality of the control and, precisely:

– the standard service must be reshaped with particular regard to the time intervals for surveying the geographical position of vehicles – currently set between 30 and 120 seconds – and the times for storing data – now set at 365 days – and the storage and provision of maps of all routes taken;

– the company must also inform its customers of the possibility of adapting the characteristics of the service to the specific purposes pursued;

– the function that allows the deactivation of the GPS must be made available for all types of subscription to the service without additional and excessive costs.

In any case, employees must be informed in advance of the data collection system. The company must prepare all the measures that allow workers to access the data processed for viewing or for any change. In this way, the Guarantor, in addition to resizing and regularizing the activities of the company that uses the location service on its corporate fleet in accordance with the privacy regulations, also created a fundamental precedent for the protection of workers.