A Kat’s 2019 Copyright Awards

The end of 2019 is upon us – a new year (and decade) of IP developments is fast approaching. 

Although the IPKat Team is getting some deserved rest these days (it is well-known that Kats spend most of their time asleep), it is again the time of The IPKat’s Copyright Awards!

As it has become tradition, a few (honorary = no cash) prizes are awarded each and every year in a number of categories. For previous editions, see here, here, here, here, here, and here.

So, here we go!

Cofemel: not just a judgment about jeans and T-shirts

As it has become the norm in the field of copyright, not only have courts become pivotal in defining the scope of protection but, in certain topical instances,  they have also contributed to shaping materially the very foundations of protection. 

In the case of the EU, the latter has been surely the case of the Court of Justice of the European Union (CJEU). Besides being my personal favourite court (and that is no secret), over the past few years the CJEU has become a cornerstone of EU copyright harmonization, and has defined such things as the scope of economic rights, exceptions and limitations, the residual freedom of Member States in areas harmonized at the EU level [see here for an article written a few years ago regarding Member States’ own freedom in the field of copyright]. 

Recently, the CJEU has been asked by a few national courts questions that are even more basic and – because of this – probably more crucial than the above. They can be summed up as follows: what is needed for copyright protection to arise in the first place?

Whilst a question like this is one that is posed in the first class of any copyright course, answering it has not proved straightforward at all (take note, students!).

Ten years ago, the CJEU issued its seminal decision in Infopaq [Kat-anniversary post here], in which it de fact harmonized the standard of originality beyond what EU legislature had done in relation to software, databases and photographs. 

Since then, the Court has further refined the concept of originality and provided hints that, indeed, the implications of this string of cases would go beyond the key concept of what is ‘original’ [see here for an article that I wrote a few years ago regarding the implications of CJEU case law for subject matter harmonization]. Recently, that this was indeed the case became apparent in Levola Hengelo [Katposts here], in which the CJEU defined the concept of ‘work’. 

This year, the overall process which began with Infopaq has culminated in the judgment in Cofemel [Katpost here]. The CJEU clarified that, indeed, for copyright protection to arise what is only required is (1) a work which (2) is sufficiently original. The judgment, which is not surprising, has immediate implications for copyright protection of designs, but goes well beyond that. 

It is the IPKat copyright decision of the year because, indeed, it makes it apparent once and – hopefully – for all how profound the harmonization carried by the CJEU has been.

There is no doubt here: it is the Directive 2017/790 on copyright in the Digital Single Market (DSM Directive) [Katposts here], which became law in mid-2019. Now, EU Member States have time until June 2021 to transpose it into their own legal systems. 

As far as the UK is concerned, the big question mark is not whether this soon to be former EU Member State will have to transpose it (under the current Brexit timeframe, it appears that such obligation will not exist), but whether it would wish to do so or, in any case, adopt domestic legislation that mirrors the content of the EU directive.

The Directive is important in that it shows: first, how controversial copyright policy- and law-making can be; second, how difficult it is to reconcile conflicting interests (including, of course business interests); and, finally, how copyright legislation can have an impact on very different fields and sectors.

The text of the directive is not always crystal-clear and this means that the story around it is far from over. It seems unavoidable that uncertainties will arise, in the first place, at the national transposition level (some EU Member States have already begun this process) and then at the application phase. Courts, including the CJEU, will likely be busy for years to come. 

Lord Justice Arnold

This year’s copyright person is someone who: (1) has been pivotal to shaping – inter alia – domestic copyright law; (2) has had a profound and fruitful dialogue with the CJEU on a range of different IP issues over the years; and (3) has influenced other countries’ courts and approaches, particularly with regard to online enforcement.

It is Sir Richard Arnold, who – this year – has been elevated from the High Court to the Court of Appeal of England and Wales, thus becoming Lord Justice Arnold [Katpost here].

Since Newzbin 2 [the first copyright blocking injunction in the UK: Katpost here] in 2011, Lord Justice Arnold has shaped the UK IP enforcement landscape. He probably holds the personal record as the individual judge who has referred the highest number of cases to the CJEU (not just in the field of copyright), and his decisions have been studied and have had a profound impact in other jurisdictions, both EU and non-EU ones.

The IPKat wishes to celebrate his much-deserved elevation and looks forward to reading and commenting on future judgments. 

The B-word is of course something that will continue shaping the IP debate in 2020. Whilst copyright is likely to be less affected – at least immediately – than registered rights, the departure of the UK from the EU and the future relationship between them will have fundamental implications also for this IP right.

Seen from an EU IP perspective, one of the biggest and yet least discussed issues will be the fact that UK courts will likely lose their power to refer cases to the CJEU (see currently s6 of the Withdrawal Act 2018). This will be a loss for all of the EU IP community, considering how attentive, active and engaged the courts of this country have been. 

At the EU level, it seems a fact that a discussion of intermediaries’ safe harbours is coming in 2020, under the umbrella of the Digital Services Act.

Although Article 17 of the DSM Directive already clarifies that online content sharing service providers that communicate to the public are ineligible for the hosting safe harbour in Article 14 of the E-commerce Directive in relation to copyright content, a broader discussion about safe harbours is now part of the conversation, at both the policy and judicial levels [in trade mark law, see the recent and very interesting Opinion of Advocate General Campos in Coty]. 

Something, ie safe harbours for online intermediaries, that appeared like an untouchable cornerstone of internet law is now increasingly being questioned and, clearly, the outcome of the debate will have profound implications also for copyright.

Like last year, also this year we choose something in the artistic field: it is Maurizio Cattelan’s Comedian. A banana duct-taped to a wall, it was on sale in Miami for $120,000.

A ‘Hungry Artist’ even ate the original banana, but Cattelan’s representatives at the Galerie Perrotin explained that the artwork had not been destroyed since owners are actually allowed to replace the original banana. 

This put an end to discussions that some copyright lawyers had already started regarding potential violation of Cattelan’s VARA rights, Italian moral rights, etc, but did not conclude those concerning whether his Comedian is expressive enough to be a protectable work (is it just a great idea or is it an actual work?) ….

Cattelan is a volcanic artist, and his latest creation reminds us once and for all why we love copyright: brilliant material to work with, endless discussions, provocative stunts, and … lots of fun.

Happy 2020 and, now, to the next decade of all-things-copyright!