Blowing the whistle on copyright in public sculptures

Authors: Earl Gray and Raymond Scott (Partner, Simpson Grierson, New Zealand; Associate, Simpson Grierson, New Zealand)

Journal of Intellectual Property Law & Practice (2014) doi: 10.1093/jiplp/jpu194, first published online: October 14, 2014

Controversy surrounding two recent Fédération Internationale de Football Association (FIFA) Football World Cup-related advertisements featuring images of a statue of Christ the Redeemer serve as a reminder that sculptures in public places can be protected by copyright.

Legal context

Advertisers are known for using iconic monuments in advertisements to refer to major sporting events. Commercial exploitation of monuments may become more popular in light of the international movement for greater protection of major events against ambush marketing. By using monuments as geographic or social reference points, advertisers may attempt to skirt around ambush marketing laws. Monuments situated in public spaces could also be seen as easy targets for commercial exploitation, because their placement can be interpreted as suggesting (sometimes incorrectly) that copyright in the works is in the public domain.

Copyright laws generally provide some protection for monuments that are situated in public spaces. However, the level of protection varies across territories. In particular, some territories have specific exceptions to infringement of copyright in works of architecture and other artistic works that are permanently placed in public spaces. These exceptions are sometimes referred to as protecting the ‘freedom of panorama’. The concept of freedom of panorama relates to the ability of people to make certain reproductions of works that are permanently displayed in public.

Differences in the level of copyright protection between jurisdictions can result in uncertainty for businesses wishing to exploit monuments commercially, and can make monuments more vulnerable to commercial exploitation in some territories than others.

Facts

The statue of Christ the Redeemer is a famous feature of Rio de Janeiro. Leading up to the 2014 Fédération Internationale de Football Association (FIFA) Football World Cup, Italy's state broadcaster, Rai, aired a television advertisement featuring a statue of Christ the Redeemer wearing a blue Italian football shirt. The Archdiocese of Rio was reportedly deeply offended by the advertisement, which was aired in Italy, and alleged that Rai infringed copyright in the statue. Ownership and subsistence of copyright in the statue has been the matter of contention before, including in relation to its reproduction in the movie 2012.

Australian bookmaker Sportsbet was also criticized by some for an advertising stunt featuring the same statue. Days before the 2014 FIFA Football World Cup, Sportsbet flew a hot air balloon in the shape of that statue across Melbourne. The hot air balloon, 46 metres in height, was taller than the statue itself, which is 38 metres in height including its pedestal. The hot air balloon figure wore a gold and green shirt, and bore Sportsbet's branding and the hashtag #KEEPTHEFAITH.

These uses of the Christ the Redeemer statue raise the issue of what degree of copyright protection there is for sculptures situated in public spaces.

Analysis

As artistic works, works of architecture and sculptures can be protected by copyright in New Zealand. New Zealand's Copyright Act 1994 does not include a general fair use exception to copyright infringement, but instead provides various specific exceptions to infringement.

The Copyright Act's equivalent of a ‘freedom of panorama’ provision is s 73. This provides that copyright in buildings and in works (such as sculptures, models for buildings or works of artistic craftsmanship) permanently situated in public places or on premises open to the public is not infringed by copying the works by making graphic representations, photographs or films of the works, or by communicating visual images of the works to the public.

The purpose of s 73 appears to be to allow particular reproductions of works that are commonly situated in public spaces and where it might be difficult to control copying. It would seem impractical, for example, to require a filmmaker to obtain a copyright licence for each building and monument protected by copyright that is featured in a film. Traditionally, this exception was also designed to protect those who wished to sketch or photograph a sculpture or public building.

Section 73 could apply, for example, where a television advertisement featuring a sculpture permanently situated in a public place is communicated to the public. Section 73 is unlikely to apply where a three-dimensional replica is made of a sculpture.

The interpretation of s 73 has been a matter of some debate. It has been held that s 73 affords protection against indirect copying of underlying works, such as models and drawings of sculptures (Radford v Hallenstein Bros Ltd, Auckland High Court, CIV-2006-404-4881, 22 February 2007). However, s 73 cannot be relied on as a defence to a claim of infringement of an author's moral rights (Radford v Hallensteins Bros Ltd [2009] DCR 907). This means that, for example, s 73 is unlikely to provide a defence to the derogatory treatment of a sculpture under the Copyright Act.

Potential ambiguities in s 73 include the issues of what constitutes ‘permanent’ placement of a work, and what constitutes a ‘public space’ or ‘premises open to the public’. This seems clearly directed at works such as the statue of Christ the Redeemer, which has been situated on Corcovado Mountain since its completion in 1931. The section is unlikely to apply to sculptures that are in transit or on short-term display for a defined period. However, it is unclear whether s 73 might apply to sculptures on long-term display for a defined period (eg 20 years), or sculptures that are repeatedly displayed in different public spaces. For example, Florentijn Hofman's Rubber Duck sculptures have been displayed since 2007 in cities around the world for short periods of time at each location.

A further issue is the exclusion of other artworks permanently situated in public spaces, such as murals and mosaics, unless they are considered ‘works of artistic craftsmanship’. It is unclear why some artistic works that are permanently situated in public spaces might be excluded from s 73.

Commentators have also anguished over the interpretation of equivalent freedom of panorama exceptions in Australia and the United Kingdom. Sections 65 and 66 of Australia's Copyright Act 1968 and s 62 of the United Kingdom's Copyright, Designs and Patents Act 1988 share similar wording to s 73 of New Zealand's Copyright Act. Each of these provisions originates from s 2(1)(iii) of the British Copyright Act 1911.

By comparison, the United States does not have a specific exception for artistic works permanently placed in public spaces. The United States' 17 USC s 120(a) provides an exception for certain reproductions of architectural works that would otherwise infringe copyright. However, unauthorized copying of sculptures would instead have to fit within the United States' fair use exception in 17 USC s 107. A recent case held that postage stamps bearing a photograph of Frank Gaylord's The Column, a Korean War memorial sculpture situated in Washington, DC, did not constitute fair use of the sculpture (Gaylord v United States, 595 F 3d 1364 (Fed Cir 2010)).

Practical significance

New Zealand's Copyright Act provides some comfort to businesses that use photographs or videos of monuments permanently situated in public spaces. However, challenges are presented by the uncertainties in the interpretation of s 73, and the differences in laws of other territories, particularly where businesses wish to disseminate the same material across multiple countries. Businesses should also be mindful of artists' moral rights.

Businesses may also need to consider issues other than copyright, such as whether copying a sculpture risks passing off or misleading or deceiving consumers, and whether there is a risk of adverse publicity if a sculpture is portrayed in an offensive way. It may be appropriate in some cases to consider seeking licences or waivers from the rights holders of sculptures and the artists.

For artists and copyright owners, the freedom-of-panorama exceptions mean a potential loss of control over copyright. This will be important to understand where sculptures are commissioned for the purpose of being displayed in public places. Some artists and copyright owners ask why, as seems to be law in New Zealand since Radford v Hallenstein Bros Ltd, business are permitted in New Zealand to exploit their works commercially by selling two-dimensional copies such as post cards and t-shirts, when other works are not subject to this form of free exploitation. They ask: ‘Even if I cannot stop this, should I not at least benefit from a royalty from those who seek to profit from my work?’

This loss of control may be unexpected where sculptures are put on permanent public display without artists' consent. In such cases, artists may still be able to take action if their moral rights are infringed.

Artists could require purchasers to agree not to display the sculptures in public spaces, although this may be ineffective if works are on sale. Copyright owners could also consider registering trade marks comprising three-dimensional representations of the sculptures, although any additional protection would have to be balanced against the potentially significant cost of registering and maintaining trade marks for a range of merchandise.

Establishments such as public art galleries should also be aware of the potential implications of permanently displaying sculptures. To maintain a degree of control over the reproduction of works, taking photographs and videos could be restricted as a condition of entry.

Ultimately, the degree of protection provided by copyright in sculptures situated in public spaces will vary depending on the circumstances. Businesses, artists and copyright owners should take into account all the relevant legal and commercial factors to avoid a potential own goal.

Federal Circuit rules that cloned animals are not patentable

Author: Eddy D. Ventose (School for Graduate Studies and Research, University of West Indies)

In Re Roslin Institute (Edinburgh) Fed Cir 2014, 8 May 2014

Journal of Intellectual Property Law & Practice (2014) doi: 10.1093/jiplp/jpu151, first published online: September 30, 2014

The Federal Circuit has held that a cloned animal, namely Dolly the Sheep, is not patent-eligible under s 101 of the US Patents Act.

Legal context

The claims at issue related to the '233 patent application, entitled ‘Quiescent Cell Populations for Nuclear Transfer’. The '233 patent application claimed the products of a particular cloning method for cattle, sheep, pigs and goats. Claims 155 and 164 were representative of the claims found in the '233 application. Claim 155 claimed a live-born clone of a pre-existing, non-embryonic, donor mammal, wherein the mammal is selected from cattle, sheep, pigs and goats. Claim 164 claimed the clone of any of claims 155–159, wherein the donor mammal is non-foetal.

On 10 November 2008, the examiner issued a non-final rejection of the '233 application holding that they were directed to non-statutory subject matter under s 101 of the US Patents Act as well as anticipated and obvious under ss 102 and 103. The Patent Trial and Appeal Board (Board) affirmed this decision on 7 February 2013. Although noting that the claimed clones ‘may be called a composition of matter or a manufacture’ as required by s 101, the Board concluded that the claimed subject matter was ineligible for patent protection under s 101 because it constituted a natural phenomenon that did not possess ‘markedly different characteristics than any found in nature.’ The applicant, Roslin Institute, appealed to the United States Court of Appeals for the Federal Circuit.

The opinion of the Federal Circuit

The technology

The Federal Circuit noted that Keith Henry Stockman Campbell and Ian Wilmut successfully produced the first mammal ever cloned from an adult somatic cell: Dolly the Sheep. It explained the technology used to create Dolly the Sheep as follows: a clone is an identical genetic copy of a cell, cell part or organism. The cloning method Campbell and Wilmut used to create Dolly constituted a breakthrough in scientific discovery. Known as somatic cell nuclear transfer, this process involves removing the nucleus of a somatic cell and implanting that nucleus into an enucleated (ie without a nucleus) oocyte. A somatic cell is any body cell other than gametes (egg or sperm). An oocyte is a female gametocyte (an egg cell prior to maturation), and a nucleus is the organelle that holds a cell's genetic material (its DNA). Often referred to as ‘adult’ cells, somatic cells are differentiated, ie, they are specialized to perform specific functions. For example, liver, heart and muscle cells are all differentiated, somatic cells. To create Dolly, Campbell and Wilmut fused the nucleus of an adult, somatic mammary cell with an enucleated oocyte. Specifically, Campbell and Wilmut found that if the donor, somatic cell is arrested in the stage of the cell cycle where it is dormant and non-replicating (the quiescent phase) prior to nuclear transfer, the resulting fused cell will develop into a reconstituted embryo. Once the nucleus of a somatic, donor cell is removed, that nucleus is fused with an oocyte, which develops into an embryo. The embryo can then be implanted into a surrogate mammal, where it develops into a baby animal. The resulting cloned animal is an exact genetic replica of the adult mammal from which the somatic cell nucleus was taken.

Patentability: first principles

The Federal Circuit observed, citing Mayo Collaborative Servs v Prometheus Labs, Inc, 132 S Ct 1289 (2012), that an invention that fell within one of the categories of patentable subject matter enumerated in s 101 of the Patents Act might still be ineligible for patent protection if it met one of three exceptions. Laws of nature, natural phenomena and abstract ideas, in its view, were not eligible for patent protection. It noted that, as recently as 2013, the Supreme Court in Association for Molecular Pathology v Myriad Genetics, Inc, 133 S Ct 2107 (2013) made clear that naturally occurring organisms were not patentable. And, as early as 1948, in Funk Bros Seed Co v Kalo Inoculant Co, 333 US 127 (1948), the Supreme Court held that a patent that claimed a mixture of naturally occurring strains of bacteria that helped leguminous plants extract nitrogen from the air and fix it in soil was not patent-eligible because the patentee did not alter the bacteria in any way. In other words, while the method of selecting the strains of bacteria might have been patent-eligible, the natural organism itself—the mixture of bacteria—was unpatentable because its ‘qualities are the work of nature’ unaltered by the hand of man.

In Diamond v Chakrabarty, 447 US 303, 309 (1980), the Supreme Court held that a claim to a genetically engineered bacterium (that was capable of breaking down various components of crude oil), which was created by adding four plasmids to a specific strain of bacteria, was patentable because it was ‘new’ with ‘markedly different characteristics from any found in nature and one having the potential for significant utility.’ In other words, the patentee's ‘discovery [was] not nature's handiwork, but his own.’

After reviewing Mayo, Funk and Chakrabarty, the Federal Circuit observed that discoveries that possess ‘markedly different characteristics from any found in nature’ were eligible for patent protection, adding that, in contrast, any existing organism or newly discovered plant found in the wild was not patentable. It also noted that, in Myriad, the Supreme Court held that claims for two naturally occurring, isolated genes (BRCA1 and BRCA2), which could be examined to determine whether a person might develop breast cancer, were invalid under s 101. In the Supreme Court's view, the BRCA genes themselves were unpatentable products of nature.

Application of first principles

The applicant, while not disputing that the donor sheep whose genetic material was used to create Dolly could not be patented, argued that the copies (clones) were eligible for protection because they were ‘the product of human ingenuity’ and ‘not nature's handiwork, but [their] own’. In addition, it argued that such copies were either compositions of matter or manufactures within the scope of s 101. However, the Federal Circuit countered that Dolly herself was an exact genetic replica of another sheep and did not possess ‘markedly different characteristics from any [farm animals] found in nature.’ It held that Dolly's genetic identity to her donor parent rendered her unpatentable. The Federal Circuit referred to the decision of the Supreme Court in Myriad that concluded that ‘isolated’, naturally occurring DNA strands were ineligible for patent protection. It explained that this case, as in Myriad, Roslin ‘did not create or alter any of the genetic information’ of its claimed clones, ‘[n]or did [Roslin] create or alter the genetic structure of [the] DNA’ used to make its clones. Instead, Roslin's chief innovation was the preservation of the donor DNA in such a way that the clone was an exact copy of the mammal from which the somatic cell was taken. Consequently, such a copy was not eligible for patent protection.

The applicant stated that, for three reasons, the clones were patent-eligible because they were distinguishable from the donor mammals used to create them. The first was that ‘environmental factors’ lead to phenotypic differences that distinguished its clones from their donor mammals. In the Federal Circuit's opinion, these phenotypic differences (which were the result of environmental factors uninfluenced by Roslin's efforts) did not confer eligibility on their claimed subject matter. The second reason was that there existed differences in mitochondrial DNA, which originated from the donor oocyte rather than the donor nucleus. The Federal Circuit replied that (a) there was nothing in the claims, or even in the specification, that suggested that the clones were distinct in any relevant way from the donor animals of which they were copies and (b) the clones were defined in terms of the identity of their nuclear DNA to that of the donor mammals. It continued by emphasizing that having the same nuclear DNA as the donor mammal might not necessarily result in patent ineligibility in every case. However, in this case, the claims did not describe clones that had markedly different characteristics from the donor animals of which they were copies. The third was that the clones were time-delayed versions of their donor mammals, and therefore different from their original mammals. The Federal Circuit, applying the reasoning of the Board that the time-delayed characteristic simply meant that the clone was a true of any copy of an original, held that this distinction alone did not confer patentability.

Practical significance

The decision of the Federal Circuit reaffirms salient principles of patent eligibility emerging from the recent jurisprudence of the Supreme Court, namely (a) laws of nature, natural phenomena and abstract ideas are not eligible for patent protection; (b) naturally occurring organisms/products of nature are not patentable and (c) to be patentable, the claimed naturally occurring organism/product of nature must have ‘markedly different characteristics’ from any found in nature and must have the potential for significant utility. In the instant case, Dolly the Sheep was an exact replica of another sheep and it did not have any ‘markedly different characteristics’ from any of the farm animals found in nature. In other words, there was no new or changed genetic structure of the DNA used to make the clones—the claimed method was simply a process to preserve the donor DNA so that the clone was an exact copy of the mammal from which the DNA was derived.

The important point about this decision is that products of nature/naturally occurring organisms are not patentable per se but, to be patentable, the claimed invention must contain ‘markedly different characteristics’ from that found in nature and have potential for significant utility. The critical question, then, is: what are the criteria for determining when a clone would have those ‘markedly different characteristics’? Patentees should recite what those differences are in the patent specification, and even minor differences should be noted, even though they might prove insignificant if they are only meaningless limitations. Future Federal Circuit decisions might provide the necessary guidance on the criterion relating to ‘markedly different characteristics’. If the reasoning of the Federal Circuit is applied fully, there might arguably be no patent protection for stem cells grown in a laboratory (that replicate human stem cells) or even human organs also grown in a laboratory (if it were possible).

The Federal Circuit did however leave open the possibility that, notwithstanding this decision, patent protection might be available for clones when it remarked that ‘having the same nuclear DNA as the donor mammal may not necessarily result in patent ineligibility in every case’.

Another batch of books to review

As mentioned on Friday, JIPLP has a vigorous and proactive policy regarding book reviews, inviting suitable prospective reviewers to step forward and offer to review books within their field of expertise and asking them to return them if, within a fairly short time, they have not committed themselves to delivering a reasoned and publishable review.

Here's a further batch of books in search of a reviewer. If you think you are suitably qualified by experience or interest to write a review on one of the following, please email Sarah Harris at sarah.harris@oup.com and let her know, by not later than Friday 10 October. If you are not already known to us, do please let us have sight of a short CV.

Books currently available for review are as follows:

Title: Patent Trolls: Predatory Litigation and the Smothering of Innovation
Author: William J Watkins Jr
Publisher: The Independent Institute

Patent trolls are stifling innovation. Using overbroad patents based on dated technology, trolls threaten litigation and bring infringement suits against inventors. Trolls, also known as Non-Practicing Entities (“NPEs”), typically do not produce products or services, but are in the business of litigation. They lie in wait for someone to create a process or product that has some relationship to the patent held by the troll, and then they pounce with threats and lawsuits. The cost to the economy is staggering.

Watkins calls attention to this problem and the challenges it poses to maintaining a robust rate of technologically progress. He also examines a more fundamental problem: an outmoded patent system that is fundamentally ill suited for the modern economy. Finally, he examines proposals for reforming the patent system.

Further information concerning this title can be obtained from the book's web page here

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The Ownership Problems of Overlaps in European Intellectual Property
Author: Nuno de Araújo Sousa e Silva
Publisher: Nomos

Intellectual Property rights are expanding and, thus, overlapping more than ever before. This poses challenges to a system devised as comprising a set of isolated compartments, each with its defined purpose. The diverging rules concerning ownership and entitlement can lead to different rights on the same object being owned by different persons. What happens then?

This question is addressed under European law, focusing on the existing corpus of EU primary and secondary legislation and jurisprudence and the national laws of France, Germany and the UK.

Five specific cases are considered: trade marks and designs, trade marks and copyright, designs and copyright, data-base sui generis right and copyright and copyright and patents in the field of computer programs. Some solutions to the problem, namely convergence of ownership rules, avoidance of overlaps, prevalence of the closest regime, abuse of rights, implied licences, and expanding copyright solutions by analogy, are analysed.

Further information concerning this title can be obtained from the book's web page here

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Title: Intellectual Property and Business: The Power of Intangible Assets
Authors: Rodney D Ryder and Ashwin Madhavan
Publisher: Sage

Intellectual Property (IP) is one of the most vital assets for any business organization. It is a domain not restricted to lawyers alone; it is a crucial area of concern for business organizations, managers, and corporate leaders. Intellectual Property and Business demonstrates how companies can deploy their IP not just as legal instruments but also as dominant and powerful financial assets, and as useful arsenal that can boost their business.

The book aims to provide a basic understanding of various forms of IP that business organizations need to protect, and to analyze and understand IP management and strategy through case studies. It highlights these aspects of IP management through the lens of both a lawyer and a business manager

Further information concerning this title can be obtained from the book's web page here

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Title: Open Source Software and Intellectual Property Rights Author: Vikrant Narayan Vasudeva Publisher: Wolters Kluwer

Debate is raging as regards intellectual property and software. Neither copyright law nor patent law seem to satisfy the requirements of software protection. This legal uncertainty has led to the laws becoming subject to exploitation by corporate and other entities for vested agendas. The resentment towards the inadequacies of laws and practices and their subsequent exploitation is highlighted by the emergence of alternative development models, most notably by the open source software model. This book proposes a sui generis model for software, following the pattern of recently developed technological distinctions in such fields as database protection, integrated computer circuits, plant breeders’ rights, and the recognition given to collective rights like collective trademark, geographical indication, and traditional knowledge.

Further information concerning this title can be obtained from the book's web page here 

More books for review

JIPLP has a vigorous and proactive policy regarding book reviews, inviting suitable prospective reviewers to step forward and offer to review books within their field of expertise and asking them to return them if, within a fairly short time, they have not committed themselves to delivering a reasoned and publishable review.

If you think you are suitably qualified by experience or interest to write a review on one of the following, please email Sarah Harris at sarah.harris@oup.com and let her know, by not later than Wednesday 8 October. If you are not already known to us, do please let us have sight of a short CV.

Books currently available for review are as follows:

Title: The Protection of Geographical Indications: Law and Practice 
Author: Michael Blakeney
Publisher: Edward Elgar

The Protection Of Geographical Indications examines from a practitioner's perspective the European laws concerning the protection of geographical indications and geographical trade marks. The book expertly annotates the 2012 European regulation on quality schemes for agricultural products and foodstuffs, the proposed amendments to the Community Trade Marks Regulation on certification marks and the new Customs Regulation which deals with the counterfeiting of geographical indications.

Further information is available from the book's web page here

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Title: Intellectual Property, Unfair Competition and Publicity: Convergences and Development
Editors: Nari Lee and others
Publisher: Edward Elgar

Dealing with rights and developments at the margin of classic intellectual property, this fascinating book explores emerging types of regulations and how existing IP regimes inform and influence the judicial and legislative creation of “substitute” IP rights.   

The editors have carefully structured the book to ensure that there is a thorough analysis of how commercial values arising at the margins of classic IP rights are regulated. As new regimes of regulations emerge, the question of how existing IP regimes inform and influence the judicial and legislative creation of “substitute” intellectual property rights is explored. By doing this, the contributors interrogate the very boundaries that constitute what IP rights traditionally protect and cover. Should all investments in anything intangible and “intellectual” – such as product shapes, personality, data and organization of an event - be protected as property? Should there be qualitative differences among the types of investments and achievements? These are just some of the interesting questions addressed in this important new book.

Further information is available from the book's web page here

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Title: Comic Art, Creativity and the Law
Author: Marc H Greenberg
Publisher: Edward Elgar

The characters and stories found in comic art play a dominant role in contemporary popular culture throughout the world. In this first-of-its-kind work, Comic Art, Creativity and the Law examines how law and legal doctrine shapes the creative process as applied to comic art.

The book examines the impact of contract law, copyright law (including termination rights, parody and ownership of characters), tax law and obscenity law has on the creative process. It considers how these laws enhance and constrain the process of creating comic art by examining the effect their often inconsistent and incoherent application has had on the lives of creators, retailers and readers of comic art. It uniquely explains the disparate results in two key comic book parody cases, the Winter Brothers case and the Air Pirates case, offering an explanation for the seemingly inconsistent results in those cases. Finally, it offers a detailed discussion and analysis of the history and operation of the ‘work for hire’ doctrine in copyright law and its effect on comic art creators.

Further information is available from the book's web page here

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Title: Intellectual Property for Economic Development
Editors: Sanghoon Ahn and others
Publisher: Edward Elgar

Protection of intellectual property rights (IPRs) serves a dual role in economic development. While it promotes innovation by providing legal protection of inventions, it may retard catch-up and learning by restricting the diffusion of innovations. Does stronger IPR protection in a developing country encourage technology development in or technology transfer to that country? This book aims to address the issue, covering diverse forms of IPRs, varied actors in innovation, and multiple case studies from Asia and Latin America. IPRs and their interaction with other factors such as such as the quality of knowledge institutions (e.g. academia, public research institutes or industrial research centres such as science parks), availability of trained human capital, and networks for research collaboration or interaction (e.g. university-industry research collaboration or international collaboration) in a development context, is the subject of this book. )

Further information is available from the book's web page here

Do ask, do tell, do nothing: the EU Commission and all those copyright consultations

"Do ask, do tell, do nothing: the EU Commission and all those copyright consultations" is Deputy Editor Eleonora Rosati's editorial for the October 2014 issue of JIPLP, which we are delighted to reproduce below in full:

Following the big wave of 1990s-early 2000s EU copyright reforms (Directive 2001/29/EC—the so called InfoSoc Directive—was adopted in 2001), over the past few years the main feature of EU Commission's copyright policy has probably been consulting with interested stakeholders about the need for further updates or major reforms of the acquis.

It is however difficult to think of consultations that have translated to actual reform proposals.

Comments received with thanks
-- but what happens next ...?

The 2008 Green Paper on Copyright in the Knowledge Economy included a call for comments (there were about 350 in the end) on issues pertaining to exceptions and limitations in Article 5 of the InfoSoc Directive. Nothing changed as a result of this stakeholder exercise, unless you consider the creation of the Content Online Platform, ie a “stakeholders’ discussion and cooperation platform”, an actual step forward for EU copyright reform debate. The outcome of the 2009 Consultation on Creative Content Online was not more encouraging. Despite being aimed at discussing the challenges facing digitization of content and distribution channels, it attracted around 200 responses (which is over 40% less than its 2008 predecessor), and passed unnoticed outside niche—possibly too niche—circles.

Switching for a moment away from public consultations, in its 2011 blueprint ambitiously titled A Single Market for Intellectual Property Rights boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe, the Commission anticipated a number of (minor, I think) legislative initiatives (on orphan works and collective rights management) and—again—a new round of consultations on two topical copyright issues, ie further harmonization of copyright laws of Member States, and re-opening the InfoSoc Directive. While the EU has adopted specific directives on orphan works (Directive 2012/28/EU) and collective rights management (Directive 2014/26/EU), no progress has been made on the front of the two really big policy issues identified in the blueprint.

Proof of the above is the most recent Public Consultation on the Review of EU Copyright Rules that ran between December 2013 and March 2014. Again, the Commission asked about deepening the harmonization of the copyright laws of EU Member States and the need for changing/clarifying/updating key provisions of the InfoSoc Directive with regard to both exclusive rights and related exceptions and limitations. Following the conclusion of this last consultation, there should be (or rather: should have been, considering that current Commission's term of office will end in October this year?) a White Paper aimed at identifying potential areas for legislative intervention, and an Impact Assessment. Draft versions of both documents have been already leaked, and do not look particularly ambitious. All this creates the impression that—also this time—no real copyright reform will occur.

This may not be the worst case scenario though.

What is most worrisome is in fact the high—and at times fairly intolerable—degree of partisanship of those involved in the copyright debate and the instrumental use that the Commission itself has made of the instrumental data thus collected.

In a recent briefing prepared for the European Parliament and entitled Adapting the EU Copyright Rules to the Digital Transformation, Stéphane Reynolds reviewed the implementation, application and effectiveness of EU copyright policy over the past few years. He observed that public consultations have featured prominently and have essentially served to gather and confirm qualitative—rather than quantitative—data. In other words, you were not mistaken in thinking that all those stakeholder exercises looked like sort of a déjà-vu: they were.

To this add the sudden rise in the numbers of participation: the 2013–14 Public Consultation received 9,500 responses. This was not because Europe has been recently invaded by armies of copyright enthusiasts, but rather because popular stakeholder-driven initiatives such as Fix Copyright!, Creators for Europe and Copywrongs.eu really boosted participation by providing pre-filled response forms. While this is good for creating a copyright culture also among non-specialists, it also strengthens the impression that consultations are bound to become even more repositories of sclerotized data that can hardly be considered economic evidence (apparently the only real, acceptable type of evidence), if evidence at all.

Besides well-known refrains on competitiveness and effectiveness of the EU single market, it is still unclear where EU copyright policy is heading. Moreover, it seems that asking repeatedly the same people might not help see the way. The next Commission will hopefully appreciate the actual legacy—if any—of these years spent consulting, as well as the quality of the data used to carry out the most recent (minor) reform agenda. But will it?

October issue available online

The October 2014 issue of the Journal of Intellectual Property Law & Practice is now available in full online.  A list of the contents of this issue features below.  As usual, you don't have to be a subscriber in order to enjoy its articles and current intelligence notes -- you can access them on a payment-for-limited-time access basis via the JIPLP website here.  The print version will reach subscribers in the near future.

Eleonora Rosati's editorial will be published in full on this weblog later today.

Editorial

• Select this article
  • Eleonora Rosati

  Do ask, do tell, do nothing: the EU Commission and all those copyright consultations

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 785 doi:10.1093/jiplp/jpu181

Current Intelligence

• Select this article
  • Someshwar Banerjee

  Patents: Keeping it simple!!! Supreme Court of India streamlines patent revocation procedures

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 786-787 doi:10.1093/jiplp/jpu140
• Select this article
  • Charles R. Macedo and
  • Reena Jain

  Patents: US Supreme Court relaxes standards for awarding attorney fees under 35 USC 285 in patent suits

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 787-788 doi:10.1093/jiplp/jpu129
• Select this article
  • Michele Giannino

  Trade marks: Kornspitz: only the views of end users are relevant to establish if a trade mark has lost its distinctive character

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 788-790 doi:10.1093/jiplp/jpu138
• Select this article
  • Stefano Barazza

  Trade marks: Interpretation and application of national law in Community trade mark invalidity proceedings

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 790-793 doi:10.1093/jiplp/jpu137
• Select this article
  • Désirée Fields

  Trade marks: Interpreting concept of ‘bad faith’

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 793-794 doi:10.1093/jiplp/jpu141
• Select this article
  • Birgit Clark

  Trade marks: Gold bear wars reloaded

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 795-796 doi:10.1093/jiplp/jpu128
• Select this article
  • Nikos Prentoulis

  Trade marks: Balancing tool or escape clause? Proportionality in temporary relief proceedings before the Greek courts

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 796-797 doi:10.1093/jiplp/jpu135
• Select this article
  • Marie-Andrée Weiss

  Copyright and publicity rights: First Amendment trumps couple's right of publicity; copyright claim to proceed

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 797-798 doi:10.1093/jiplp/jpu127
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  • Peter Ellis and
  • Giles Parsons

  Passing off: A ‘blink blink eye rub’ does not amount to passing off

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 799-800 doi:10.1093/jiplp/jpu142
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  • Laura Whiting

  SPCs: Safe and sound: CJEU confirms a safener can be an active ingredient too

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 800-801 doi:10.1093/jiplp/jpu139

Articles

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  • Sophie Lawrance

  The competition law treatment of no-challenge clauses in licence agreements: an unfortunate revolution?

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 802-811 doi:10.1093/jiplp/jpu133
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  • Christina Angelopoulos

  Are blocking injunctions against ISPs allowed in Europe? Copyright enforcement in the post-Telekabel EU legal landscape

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 812-821 doi:10.1093/jiplp/jpu136
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  • Caroline B. Ncube

  The draft national Intellectual Property Policy proposals for improving South Africa's patent registration system: a review

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 822-829 doi:10.1093/jiplp/jpu158
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  • Binka Kirova

  Trade marks as a reflection

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 830-834 doi:10.1093/jiplp/jpu156
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  • Corinna Coors

  Celebrity image rights versus public interest: striking the right balance under German law

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 835-840 doi:10.1093/jiplp/jpu164
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  • Tan Tee Jim

  Staying well away from initial interest confusion

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 841-847 doi:10.1093/jiplp/jpu165

From GRUR Int.

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  • Tilman Müller-Stoy and
  • Florian Paschold

  European patent with unitary effect as a property right¹

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 848-860 doi:10.1093/jiplp/jpu166
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  • Florian Lichtnecker

  Specific types of internet advertising and recent German case law

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 861-866 doi:10.1093/jiplp/jpu160

IP in Review

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  • Nuno Sousa e Silva

  Trade marks for the lay person and a good brush-up for the practitioner

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 867 doi:10.1093/jiplp/jpu123
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  • Richard Milchior

  TRIPS : will you learn everything you need to know with that book?

  Journal of Intellectual Property Law & Practice (2014) 9 (10): 868-869 doi:10.1093/jiplp/jpu11