29 May 2011


Image: Bloke Having A Fag Outside A Sex Shop by Mike Serigrapher on Flickr


“Are porn films copyrightable and hence covered by copyright protection?” a friend asked me yesterday. His concern was that “immoral” films often face statutory limitations with respect to their distribution.

“That is a very good question”, I thought and gave him a short answer.

Basically, my answer relied on that pornographic films are works in the first place, more precisely – cinematographic works and that as such they will very likely qualify for copyright protection. I further opined that any limitations to their distribution should not prejudice their character as works of copyright and hence their protection under copyright law.

In this blog post I will give a more profound answer thereby covering the Berne Convention as well as the national laws of three countries. I chose those countries because they not only have a long-established and prominent copyright protection, but they have also a well-developed entertainment industry and, as a part thereof, production and consumption of pornographic films.

Good, let me will start with the

Berne Convention

Article 2 of this treaty, also referred to as the mother of copyright, reads as follows

(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

Convention’s Article 2 bis leaves it to the members states to decide whether certain categories of works are to be protected, but limits the categories only to (i) speeches, (ii) lectures and addresses and (iii) collections of (i) and (ii).
Anyway, the convention remains silent on the question whether moral deliberations should prevent a work from copyright protection.

United Kingdom

The United Kingdom (UK) ratified the Berne Convention with effect from 5 December 1887. Even though films have since then represented a single branch of copyright works, courts on the British Islands may nevertheless refuse to recognise copyright protection for policy reason such as immorality.
In a somewhat older case from 1916 Younger J ruled that there was no copyright in a film because it constituted a “sensual adulterous intrigue”. The House of Lords has cited this ruling with approval as far back as 1990, though not necessarily in conjunction with pornography.
In the very recent case of Media C.A.T. that involving the copyright infringement in pornographic films, however, Birss QC did not question the copyright character of the pornographic works in suit.

What remains to say is that there is still some doubt as to the exact effect of immorality under UK law. It is unclear whether immoral works lack copyright at all, or that equity will not enforce the copyright.


Although the United States acceded to the Berne Convention as late as 1989, their federal copyright law has always protected motion pictures and other audiovisual works. However, the same has not always been true with respect to pornographic works.
According to the PrawfsBlawg, “obscene” (=hardcore) pornography could not qualify for copyright protection until 1979. It was the Court of Appeals for the 5th Circuit which declared obscene films protected by copyright law. This ruling led to the FBI copyright warnings now found at the start of videotapes or other media carrying a film.


With respect to the copyrightability of films, the German Copyright Act more or less repeats Article 2 of the Berne Convention. The Copyright Act likewise remains silent on (im)morality driven exclusions of copyright.
However, Article 184 of the German Penal Code reads as follows:

1) Whosoever with regard to pornographic written materials (section 11 (3))

  1. offers, gives or makes them accessible to a person under eighteen years of age;
  2. displays, presents or otherwise makes them accessible at a place accessible to persons under eighteen years of age, or which can be viewed by them;
  3. offers or gives them to another in retail trade outside the business premises, in kiosks or other sales areas which the customer usually does not enter, through a mail-order business or in commercial lending libraries or reading circles;
    3a. offers or gives them to another by means of commercial rental or comparable commercial supply for use, except for shops which are not accessible to persons under eighteen years of age and which cannot be viewed by them;
  4. undertakes to import them by means of a mail-order business;
  5. publicly offers, announces, or commends them at a place accessible to persons under eighteen years of age or which can be viewed by them, or through dissemination of written materials outside business transactions through the usual trade outlets;
  6. allows another to obtain them without having been requested to do so;
  7. shows them at a public film showing for an entry fee intended entirely or predominantly for this showing;
  8. produces, obtains, supplies, stocks, or undertakes to import them in order to use them or copies made from them within the meaning of Nos 1 to 7 above or to facilitate such use by another; or
  9. undertakes to export them in order to disseminate them or copies made from them abroad in violation of foreign penal provisions or to make them publicly accessible or to facilitate such use,

shall be liable to imprisonment of not more than one year or a fine.

What does it mean? It means that porn films are copyrightable under German law, but their distribution, basically to persons under 18, is criminalised.


It appears that pornographic films are capable of attracting copyright protection under the relevant jurisdictions of the United Kingdom, the United States and Germany.
While the UK and the US have interlinked copyrightability with public morality and their courts have certain powers to determine whether copyright should subsist in obscene films, Germany follows a clear-cut approach stating that even pornographic films are copyrightable, albeit their distribution might be subject to morality or other public policy driven limitations.

Want  to tell how your jurisdiction deals with the copyrightability and/or distribution of pornographic works?
Simply use the comment section below.

26 May 2011

One Breach To Compromise Them All

Image: Demon Dog by Samuel Cockman on Flickr


This is a watchdog. A very cute one.
Its job is, nevertheless, to bark to alert its owner of an intruder’s presence and scare away the intruder.

France, the country which advertised the three strikes rule on a large scale and did eventually adopt it, has also a watchdog.
A dog to watch for file-sharing and online piracy of any kind.
Not a very cute one.

In fact, the French government represented by HADOPI, the executive agency established to enforce the three strikes rule, has commissioned the private company Trident Media Guard (TMG) to scan file-sharing networks and gather the IP addresses of alleged copyright infringers.

However, this watchdog was hacked and suffered a massive

Data Breach

some ten days ago.

I found the information about the breach on Ars Technica which have been continuously covering (click and click) the issue.
It appears that not only the unguarded servers were TMG’s Achilles’ heel. Their anti-piracy software was full of faults as well.

What a negligence, huh?

But that would not be all!

Imagine that this poorly managed company, empowered by the order of a special government agency and, employing a software that would very likely fail during a diligently conducted acceptance test, has the means to count your three strikes and

Send You Off

the digital playground?

The good news is that HADOPI must have considered this state of affairs unacceptable and has thus (temporarily) suspended TMG’s authorisation to collect the IP addresses of French Internet subscribers.

If the Court of the European Union follows Advocate General’s opinion in Scarlet vs SABAM, it could rule such Internet scanning outdated.

Either way, TMG’s data breach did its deed – it managed to harm the three strikes policy’s image and to (hopefully) ultimately and entirely compromise it.

24 May 2011

Of Superinjunctions, Free Speech And Privacy Protection

Image by Sara Simmons on Flickr
5746811723_c6ee3aa242_oYou will most probably recognise his face if you are a football fan.
This guy must have had a harsh time during the last couple of weeks.
Actually, he must have gone through hell.
What he has reportedly done may be controversial and stay at odds with morality, but this is not the subject of the article you are reading.
It is about his right to private life.

My point is that since the man on the image has not committed any wrong, no public interest should qualify to deprive him of a right provided for by Article 8 of the European Convention on Human Rights.
The forgoing is not to be understood as the advocacy towards a single individual. It is the advocacy towards the right of private life par excellence.

Want to read more? Good,

Let’s Kick It!

Allegedly, the man on the image has had an affair with a model and ex BigBrother contestant. However, after the model had contemplated to disclose their relationship, he managed to obtain a


(aka gagging order) to prevent potentially embarrassing details about his private life being published.
What you have to know about superinjunctions is that they prevent anyone from publishing information which is said to be confidential or private about the applicant. That not enough, superinjunctions prevent anyone from reporting that they even exist.

The English High Court granted the order.

Nevertheless, the Scottish Sunday Herald

Dared To Publish

footballer’s image claiming that it has no obligations under an English injunction and if anyone wants to prevent the whole of the British media from reporting on a story, then they will need to get separate injunctions in all jurisdictions.

The interesting thing preceding the publication in Scotland is that, as soon as Twitter users had started to tattle about the alleged affair of the footballer, he managed to obtain a gagging order also against Twitter.
Despite any deliberations as to whether Twitter is subject to the jurisdiction of English courts, the superinjunction flopped in meeting its purpose. It not only failed in preventing the spread of information on the microblogging platform, it bestowed Twitter an unprecedented increase in traffic instead. Every user interested in the matter was tweeting said footballer’s name.


Undoubtedly, this teaches us that

Superinjunctions Have Only Limited Effect

when it comes to Web 2.0 and social media.

The reactions could not come quickly enough.
Lord Chief Justice Judge lamented that “modern technology is totally out of control”. David Cameron added “It’s not fair on the newspapers if all the social media can report this and the newspapers can’t” and announced that “the government considers to legislate on privacy issues in order to catch up with the advent of social media”.

Would you support such legislation efforts?
I would.
I could accept minor limitations and would easily survive the lack of knowledge about whom a celebrity allegedly slept with. Because I know that such a minor concession of the society as a whole, would end up saving said celebrity’s private life.

Filtering Twitter?

I spent a couple of hours on Twitter this Sunday and read as many messages marked with a #Superinjunction hashtag as possible.
My impression was not that the users celebrated the victory of free speechover gagging and censorship. No, their overall message to the footballer sort of read “You think you can hide behind a superinjunction? You cannot, it simply does not work on Twitter”. They seemed happy to have tracked him down. That had nothing to do with free speech, that was hate speech.

Besides, it was in a clear breach with the superinjunction, of which everybody on Twitter already knew.

I delayed the publication of this article, because today I had a little chat with Jane Lambert on Twitter. There she expressed her concern as to whether a foreign social network should be allowed to operate in the jurisdiction of England and Wales if it is in breach of a fundamental right granted by the European Convention On Human Rights and cannot prevent flouting of an English court order.

She opined that networks should develop filtering technologies, but should deploy them only sparingly in democratic societies.

What do you think?

21 May 2011

Tattooing Copyright

Image by shelbysdrummond on Flickr


I guess that it is needless to introduce the character on the image above. He has the image of a scandalous guy and he was featured in more or less such light in the film The Hangover. Did you watch it? I did and found it entertaining.

By the way, do you belong to those eagerly expecting The Hangover Part II? Well, do not be impatient if this blockbuster takes somewhat longer to come in a theater near you.

You will not believe it, if I tell you why this is likely to happen!
Ok, here I go.  The thing is that Mr S. Victor Whitmill, a tattoo artist, claims that Warner Bros

Have Infringed His Copyright In A Tattoo

Yes, you are reading this correct! Well, it is not just some tattoo – it is the tattoo Mike Tyson is wearing on his face and the same arguably worn by an actor in The Hangover Part II. While Mr Whitmill gave its permission to Mr Tyson to lawfully wear the tattoo, this has not been the case with Warner Bros.
The New York Times has brought this amusing story and it truly deserves a read.

Ok, let me address the main question here: can copyright subsist in a tattoo?

Section 102 (a) of the US Copyright Act 1976 states that

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

I would say that once Mr Whitmill establishes that his tattoo meets these criteria it will be protected under US copyright law.
What do you think, is this completely impossible? Let us have a closer look at it!


First of all Mr Whitmill will have to prove that his tattoo is a work. I believe this will cause no problems – a tattoo is not different from a painting, which is definitely a (pictorial or graphic) work.


Fixation is an essential criterion for protection under US copyright law. Section 101 of the US Copyright Act gives us the definition of what fixation is:

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

Having read the definition, would you express any doubts as to whether Mr Whitmill’s tattoo is sufficiently fixed in Mike Tyson’s face? In my view, one could hardly speak of a tangible medium that is more stable than that gentleman’s visage.


Originality is the third main criterion for the copyrightability of a work. It is not defined in the Copyright Act, but can be derived from the plenty of judicial authority.
If the tattoo is a Maori-inspired design, as the NYT newspaper article tells us, can Mr Whitmill have authored it then? Following the leading case of Feist v Rural, Mr Whitmill’s tattoo shall be considered original once he establishes that

the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity

Hmm, could Mr Whitmill succeed on this point? In my view originality will be the very issue, provided, however, that the matter will be eventually fought before a Court of competent jurisdiction.

Final Thoughts

Despite my legal interest in the copyrightability of a tattoo, I would ask the same question as did the Harvard Info Law Blog:

Would this be a lawsuit, let alone a front-page NYT article, if the accused infringer wasn’t a big movie studio with a tentpole summer movie on the brink of release?

What do you think?

Apple’s Appstore Or Tradmarking Descriptiveness

Image by Rudi Riet on Flickr


Let me ask you a funny question: should a keeper of a greengrocer’s shop be granted the trade mark “greengrocery” for, say, class 31?

I can almost hear you shouting “No, for God’s sake, he should not!”

Well, I was joking, but why actually not? Is it because if the good greengrocer monopolised an everyday’s term for his trading purposes no other greengrocer would be able to run its shop?

Let me address this question in the story and consecutive analysis I am going to present below.

Believe it or not, but Apple managed to register the word marks

Appstore And App Store

with the Office For The Harmonization In The Internal Market (OHIM), which has authority to grant Community Trade Marks (CTM). Appstore bears the number 005554779 and is registered for classes 35 and 42. App Store bears the number 007078314 and is registered for classes 35, 37, 38 and 42.
If you like, you can conduct your own search using OHIM’s search application.

What both marks have in common is the fact that their registrations are pending cancellation.

Funnily, a broad front consisting of large technology companies such as Microsoft, HTC, Nokia and Sony Ericsson each filed formal applications for declaration of


of Apple’s two trade marks with OHIM.
The Intellectual Property Watch has the story and I strongly recommend you to read it.

Anyway, what could have been the reasoning of the tech companies, what could they have claimed? That is easy – what did we talk about at the beginning of this article, huh?
Yes, we talked about the monopolising of an everyday’s term. Everyday’s terms are generally considered descriptive for the purposes of trade mark law.
The CTM Regulation (207/2009) provides in its Article 7 (1) (c) that no registration shall be granted to

trade marks which consist exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the service, or other characteristics of the goods or service;

In other words, the tech giants have very likely claimed that the Apple’s trade marks are descriptive and therefore should have never been granted. Since OHIM granted them once to Apple, they should now be invalidated.

But wait a minute, what about


and what if Apple relied on it as authority?

Indeed, Baby-Dry was the high point of the European Court’s liberal attitude to registrability of descriptive marks. However, if I was to advise Apple in this instant case, I would not recommend them to rely on Baby-Dry.
Because in its later


judgment the Court realised that matters had gone too far in Baby-Dry and needed to be reined in.
In Doublemint the Court referred to the so called principle of availability, which says that there is a public interest that descriptive terms may be freely used by all traders.

Let me wrap it up: Appstore and App Store are (very likely) descriptive and OHIM might rule that they should be free for all.
By the way, have you read about Nokia’s plan to launch a co-branded App Store?

My Conclusion

We must not forget that trade marks provide their proprietor with a limited monopoly over the use of a sign in connection with the marketing of goods and/or services.
However and since Baby-Dry is no longer reliable authority, Apple’s adversaries have a strong case and good arguments to invalidate Apple’s registered trade marks.

Finally, you do not want Apple to trademark the descriptiveness, do you?

18 May 2011

Who Wants To Dam Online Streaming?

Image: Brownlee Dam by WaterArchives.org on Flickr


Do you stream content from the Internet?
Could it be that you fall under the category of users involved in an illegal streaming? Well, if you do and are also identifiable as an US resident, this blog article may contain some bad news for you.
Because Victoria Espinel, Obama administration’s IP Enforcement Coordinator, has recently published a white paper on legislative recommendations that asks lawmakers to declare streaming a

Copyright Infringement

and hence a felony.
Not exactly the sort of good news blogs usually provide, huh?

When I first saw the story at Ars Technica, my first reaction was to ask

Who Needs A Change In Legislation?

Then I read the white paper and found that Ms Espinel’s recommendations very clear:

It is imperative that our laws account for changes in technology used by infringers. One recent technological change is the illegal streaming of content. Existing law provides felony penalties for willful copyright infringement, but felony penalties are predicated on the defendant either illegally reproducing or distributing the copyrighted work. Questions have arisen about whether streaming constitutes the distribution of copyrighted works (and thereby is a felony) and/or performance of those works (and thereby is a not a felony). These questions have impaired the criminal enforcement of copyright laws. To ensure that Federal copyright law keeps pace with infringers, and to ensure that DOJ and U.S. law enforcement agencies are able to effectively combat infringement involving new technology, the Administration recommends that Congress clarify that infringement by streaming, or by means of other similar new technology, is a felony in appropriate circumstances.

It turns out that the current US copyright framework is to some extent ambiguous as to whether streaming should be considered a distribution or performance of a work. This ambiguity results in a loophole which Ms Espinel is now proposing to fill.

This is strange, because the US have ratified the

WIPO Copyright Treaty

(WCT) and implemented it by the Digital Millenium Copyright Act (DMCA). The US nevertheless omitted to introduce the so called “right of communication to the public” or also known as the “making available right” in their legislation. Ms Espinel would not have the problem now, had the Clinton administration taken care back in 1998.

Having said that, one might ask how the legislation of the

European Union

does classify streaming?

Well, the EU has also implemented the WCT and introduced the “making available right” in its Info Society Directive (2001/29/EC).
This means that the legislations of the single member states define streaming as either a broadcast (in the case of point to multipoint) or a communication to the public (in the case of point to point or the on demand use).

Either way and even though it is so popular among Internet users, (illegal) streaming falls foul of the law on copyright.

However, what is

Illegal Streaming

anyway supposed to mean?

Right holders speak of illegal streaming each time when their content is distributed, performed, broadcast or made available on the Internet without said right holders’ permission.

It seems, however, that streaming has become an important part of our online consumer behaviour. We consume content every day and the rise of new technologies has made this type of consumption quite convenient. The reason why some users are lured into illegal offerings basically lies in that they are not offered legally sound ones.

In that respect, right holders should reconsider their business models and keep pace with their “potential” customers and not attempt to dam the streaming instead.

What is your opinion on Ms Escivel’s recommendation? How is streaming regulated in your jurisdiction and what impact does this regulation have on illegal or lawful offerings?

17 May 2011

Click And Gone: 3 Tips How Not To Get Wrapped By An Agreement

Because of the advent of the Internet, many suppliers will more and more often omit to serve their customers with paper based contracts.

In fact, do you ever remember to have signed a real contract with, say, Facebook or Twitter? Good, those may not be the best examples as they (still) provide their service for free. But, what if you were to enter into a consideration based contract and you were not provided an old-fashioned paper copy, but asked to click through a web form instead?

This is the question I would like to address in this blog article. Particularly, I shall show you how to read, understand and deal with such agreements.

Having got started, let me first explain what a

Click-Wrapped Agreement

is supposed to mean.

Terms such as click-wrap and browse-wrap are being more and more used to describe agreements where customers indicate their acceptance to an agreement as well as their readiness to “execute” said agreement by pressing a button on a website.

Recently I had to examine a click-wrapped non-disclosure agreement (NDA) provided by a technology giant known for its preference for web hosted documents.
I was asked a simple question: “Can I sign it (or have it signed)”?

Though I am technology-focused, I had some initial doubts. Sure, I was familiar with click-wrap licenses appearing on your monitor prior to either the download or the installation of a software as well as what courts had ruled on them. But an NDA? It felt somehow strange.

So, tip #1 – read the terms of the agreement.
Check whether it provides for the

Creation Of A Binding Contract

between two (or more) parties.

Basically, you need an offer, which is accepted with the intention to be legally bound. Should this work by clicking an HTML button?
Hmm, why not?
The act of clicking would be the expression of an unconditional acceptance to the terms of the agreement and hence fully sufficient.

Now that we have proved the valid formation of the contract, we should consider our next point:

Who May Press

the button?

Are you a party to the agreement, you can make the click. But what, if someone else should press it?

Time for tip #2 – check whether the person supposed to press the button is also authorised to do so. This is important because the lack of authorisation is likely to challenge the validity of the contract.

Once having identified the proper “signatory” you need to secure your


At this stage, you should distinguish between two things: (1) you need an evidence that a contract has come into existence and (2) you must ensure that the content of the contract shall not subsequently be modified or manipulated.

Hence my tip #3 – make sure you are sent an email copy of the contract you have executed by clicking. The copy should bear the execution’s date and all relevant details such as name, address, signatory name etc.
Print out the copy, sign it personally (or have it personally signed by the signatory) and thereafter file it with your lawyer or, depending on your jurisdiction, with a notary public. This is how you can secure at least a prima facie evidence with respect to (1) and (2) above.

Concluding Thoughts

Click-wrapped or browse-wrapped agreements are driven by the online technologies and are ostensibly easy to handle. You have to know that courts have held them to be enforceable, though merely in single instances. Once you have executed such a click-wrap agreement, you should endeavour to better your stand applying an adequate contract management.

Why? In order not to be gone right after your click!

13 May 2011

Why You Cannot Trademark Free Speech

Image by opensource.com on FLickr


In the free speech context, the function of trade marks can be quite complicated. In recent time, trade marks have become a general purpose device for private parties to use when they want to suppress speech they do not like. And they are trying to suppress the speech of others not merely to protect their legitimate economic interests but because of aesthetic and political disagreements.

Anyway, to understand how intertwined trade marks and free speech are, you need first to

Understand Trade Marks

in general.

You should think of consumer protection in order to best understand trade mark law: trade marks are instruments that help consumers orient in an ocean of goods and services and, help them make respective choices. Therefore, trademarks are protectible; albeit to the extent they represent the quality or reputation associated with a product or service. The proprietorship over a trade mark allows trade mark owners to claim damages, when their trade marks are infringed.

But what is a

Trade Mark Infringement

in the first place?

Usually, this is one trader’s act of unauthorised use of a sign that is similar or identical to another trader’s trade mark. First trader’s  unauthorised use must be with respect to products or services identical or similar to those of the second trader, it must further occur in the course of commerce and be likely to create confusion among the consumers as to the origin of first trader’s goods. Why will the consumers be confused? Because they will think the first trader is the source of the products or services and not the second one.

Indeed, this is all legitimate in a commercial context, but should it apply to

Non-Commercial Expressions

of political views?

This question has already been the subject of judicial review, for instance, in Lucasfilm Ltd. v. High Frontier, 622 F. Supp. 933, 934 (D.D.C. 1985) and MasterCard International, Inc. v. Nader 2000 Primary Committee, Inc. 70 U.S.P.Q.2d (BNA) 1046 (S.D.N.Y. 2004).
The judicature’s answer has steadily been a clear “no”.

Likewise, the US District Court for the District of Utah has recently delivered a ruling dismissing the claims of Koch Industries, a billion dollar company, against Youth For Climate Truth, a group concerned about climate change.
In particular, the honourable Justice Dale A. Kimball held

“On its Lanham Act claims, Koch lacks any evidence or plausible theory as to how Defendants could have profited commercially from an anonymous spoof website that sold no products and solicited no donations, that was disclosed only to reporters, and that was only online for a matter of hours. Defendants’ speech proposed no commercial transaction. Instead, it sought to draw public attention to Koch’s controversial stance on a political issue. Koch’s trademark and unfair-competition claims, therefore, fall outside the scope of the Lanham Act and are foreclosed by the act’s commercial-use requirement.”

You can check EFF’s website for further details on the case or read Eileen Rumfelt’s brilliant analysis on trade marks and the First Amendment for further deliberations.

In this respect it appears also worth referring to some French and hence

European Jurisprudence

on political/social uses of a trade mark.
In Greenpeace v. Esso the Paris Tribunal de Grande Instance held that

“the constitutional principle of the freedom of expression implies that the Greenpeace Association…can, in its writings or on its internet site, denounce, in whatever form it feels appropriate to the objective pursued, the environmental damage and the risks caused to human health by certain industrial activities. Although this freedom is not absolute, it can nevertheless only be subjected to the restrictions necessary for the protection of the rights of others …the Greenpeace Association through the modifications… clearly shows its intention…without misleading the public as to the identity of the author of communication…the E$$O symbol… even if it refers to the trademarks held by the respondent company, it is clearly not intended to promote the marketing of products or services…it is of a polemical character that is alien to business life.”

In Greenpeace v. AREVA the same court followed the Esso principles.

What are then the


of this all?

It seems that both, legislature and judicature in western-type democracies have provided for the specific purpose of trade marks law: to be a shield against infringement in a commercial context. By the same token, legislature and judicature have well restrained trade mark owners from using the rights conferred by trade marks law as sharp-edged weaponry to pierce the right to political and hence non-commercial speech.

Still asking why no one can trademark free speech? It is simple: trade marks and free speech are fundamentally at odds.


9 May 2011

Long Arm Jurisdiction: Long Enough To Cross The Atlantic?

Image by Jim Linood on Flickr


Imagine you live in the United States and write a blog, compose articles for Wikipedia and contribute for the forum of an online newspaper. You are a really engaged author, but some of your materials happen to defame an individual who lives in the United Kingdom. He is upset and threatens you with a lawsuit, unless you cease writing about him.

Will you comply or will you feel safe being fenced by approximately 9 000 kilometers and at least one different jurisdiction?

Well, if you say that you will rather feel safe, then you should definitely

Read This Post To The End

Why? Because the English High Court held that Mr Louis Bacon was entitled to serve Automatic (the company that runs WordPress), the Wikimedia Foundation (needless to introduce them) and a newspaper based in Denver with so-called Norwich Pharmacal orders (NPO).

The online platforms made available by above entities had been used by the defendants in suit who had published statements, which in the judgment of Mr Justice Tugendhat “passed the threshold of being a good arguable case in defamation”.
The identity of the defendants could yet not be determined.
Now Automatic, the Wikimedia Foundation and the Denver Post will be served with NPO and will have to disclose log details and IP address information and thus support claimant to identify the defendants.

Do you still feel safe?

In fact, Mr Justice Tugendhat has acknowledged the difficulty of the question that had been referred to him.
Nevertheless, he has made great efforts to cite all the authority that supports his holding.

Hence, what is the message to writers of publicly accessible statements that are likely to be considered defamatory?

First, make your research. No matter how harmful your writings are, you cannot be pursued for defamation once you can prove that your contentions are true.
Second, learn about defamation or ask for professional advice in order to determine the border line between being critical or defamatory, and
Third, be careful in choosing the subject of your criticism, because it turns out that English (or other countries’) courts may rely upon a

Long Arm Jurisdiction

reaching across the Atlantic or maybe even farther.

How do you feel about your safety now?

Copyright Notice: What Is Next To The C In A Circle?

Have you ever visited Quora? It is a questions and answers site with some social network characteristics. I visit it twice to thrice a week, mostly on weekends.
When I am there, I look for questions concerning subject matters I believe to be competent in and write corresponding answers.
Why am I saying this all?
Well, because during my visit today, I encountered a question regarding the institute of the copyright notice, particularly what the years’ entries following the © stand for.

I agree, this is something that not many are aware of, but do not worry – I did write this blog post to provide you with the answer!

Let me start spending some words on copyright notices in general.

The copyright notice is a formality developed under US copyright law. It is placed on copies of a work of copyright and basically serves to claim the copyright in such work. Copyright owners were obliged to apply copyright notices on their works in order to attract copyright protection, but since 1 March 1989 this mandatory regime has turned into a voluntary one.
By contrast, the vast majority of authors’ rights countries never relied upon copyright notices.
Hence, all you need to know about them is that they are no mandatory


to attract copyright in a work.

Despite, there is a practical effect one should not underestimate: the defence of innocent infringement shall not succeed if the defendant had access to copies bearing a copyright notice.
Thus owing to the emerging globalisation and knowing that the US represent the largest market for works of the mind, even non-US copyright owners apply a copyright notice to their works. What is nowadays’ copyright notices’ primary field of application? I would say it comprises of websites and computer software.

Good, but what does the year following the copyright symbol (that would be the year 2007 in the sketch above) stand for?

This is the

Date Of First Publication

of the work.

Why is this date important? Because under the Berne Convention this is the date that activates a work’s copyright protection. Since copyright is subject to a certain duration, the counter for that work’s protection starts ticking on the date of its first publication.

But sometimes there is another date applied to the copyright notice and it follows the date of first publication, somewhat like the year 2011 in the burlesque sketch above – what is it?

Well, now you are about to enter an area that is reserved only for specialists.

The second date is the date on which the author or copyright owner (or someone authorised by the author/copyright owner) has completed a

Derivative Work

out of the original work.
Derivative work? What is this?

17 US Code, Section 101 defines the derivative work as a work based upon one or more preexisting works. In the realm of a website, for instance, this may be a major update incl. new pictures added, design changes and so on.

Why is the date of completion important? Because derivative works also qualify for copyright protection. Applying the date of their completion equals the signal gun announcing their duration’s countdown.

That would be my answer.
I have not missed something, have I?