And Nevertheless They Come Upwardly ...

TVs inwards hotel rooms: to pay, or non to pay?

More intellectual holding excitement from the ECJ today. Advocate General Eleanor ("breath of fresh air") Sharpston has delivered her Opinion inwards Case C-306/05 Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SL.

SGAE, an intellectual holding rights management society, sued the possessor of the Hotel Rafael for copyright infringement, complaining that, betwixt June 2002 together with March 2003, acts of communication to Earth were carried out involving industrial plant belonging to the repertoire managed yesteryear SGAE. These acts were carried out through idiot box sets installed inwards the hotel rooms which enabled the guests to lookout programmes on channels whose signals were received yesteryear the hotel principal aerial together with and so distributed to each of the idiot box sets inwards the diverse rooms. SGAE claimed that Rafael should hold upwardly ordered to pay compensation. The trial courtroom dismissed SGAE’s claim, holding that the utilization of TV sets inwards hotel rooms did non involve acts of world communication together with that it was thence non necessary for the hotel possessor to obtain prior authorization or pay a fee.

SGAE appealed to the Audiencia Provincial de Barcelona, which considers that the Castilian legislation together with case-law may infringe the Copyright Directive. Specifically, it wondered whether the reception yesteryear the hotel of the TV signal, whether terrestrial or satellite, together with its distribution yesteryear cable to hotel rooms, are acts of communication to Earth for the purposes of the Directive. If the centre of communication to Earth is rendering the operate broadcast, inwards this illustration yesteryear TV accessible to a number of persons, this clearly occurs where Earth is introduce at the same time, for illustration when at that spot is a TV fix inwards a hotel lobby. But what's the illustration when Earth comprises a serial of members introduce successively, every bit inwards the illustration of a hotel bedroom?

The Audiencia Provincial de Barcelona stayed the proceedings together with referred the next questions to the Court for a preliminary ruling:

"(1) Does the installation inwards hotel rooms of idiot box sets to which a satellite or terrestrial idiot box indicate is sent yesteryear cable constitute an human activity of communication to Earth which is covered yesteryear the harmonisation of national laws protecting copyright provided for inwards Article iii of Directive 2001/29?

(2) Is the fact of deeming a hotel room to hold upwardly a strictly domestic location, so that communication yesteryear way of idiot box sets to which is fed a indicate previously received yesteryear the hotel is non regarded every bit communication to the public, reverse to the protection of copyright pursued yesteryear Directive 2001/29?

(3) For the purposes of protecting copyright inwards relation to acts of communication to Earth provided for inwards Directive 2001/29, tin a communication that is effected through a idiot box fix within a hotel sleeping room hold upwardly regarded every bit world because successive viewers have got access to the work?".

After a careful together with painstaking analysis of the Directive itself, the Castilian legislation together with illustration law, Advocate General Sharpston has offered the ECJ the next guidance:

"Question 1: the installation inwards hotel rooms of idiot box sets to which a satellite or terrestrial idiot box indicate is sent yesteryear cable does non constitute a ‘communication to the public’ within the pregnant of Article 3(1) of Directive 2001/29.

Questions ii together with 3: communication yesteryear way of idiot box sets to which is fed a indicate initially received yesteryear the hotel constitutes ‘communication to the public’ within the pregnant of Article 3(1) of Directive 2001/29".

This is skillful intelligence for copyright collecting societies, together with besides for those who have a portion of the coin they collect. Hotel owners volition presumably top the terms on to the hotel's occupants. wonders, however, most the footing for assessment of the hotel's fee. Merpel asks, does it have got into work organization human relationship the fact that precisely about people would pay skillful coin to avoid having a TV inwards their bedroom?

Penalty shoot-out for Nokia

Another Opinion from Advocate General Eleanor Sharpston today comes inwards Case C-316/05 Nokia Corp. v Joacim Wärdell. It deals amongst Article 98 of the Community Trade Mark Regulation which states:

"1. Where a Community merchandise score courtroom finds that the accused has infringed or threatened to infringe a Community merchandise mark, it shall, unless at that spot are especial reasons for non doing so, number an monastic enjoin prohibiting the accused from proceeding amongst the acts which infringed or would infringe the Community merchandise mark. It shall besides have got such measures inwards accordance amongst its national police every bit are aimed at ensuring that this prohibition is complied with".

Claming that Wärdell had imported into Sweden adhesive stickers intended to hold upwardly attached to mobile telephones together with bearing the score NOKIA, Nokia sued him for infringing its Community merchandise score (CTM) NOKIA. The trial courtroom constitute that Wärdell had arranged for the import of the stickers into Sweden together with that his dealings amongst the stickers were a merchandise score infringement inwards the objective sense. There was a direct a opportunity that he mightiness infringe again. The courtroom thence issued a prohibition on continuing infringement amongst a penalisation attached. Wärdell appealed to the Court of Appeal. He submitted that at that spot was no ground to fright a repetition of the infringement since his utilization of the merchandise score NOKIA had been neither deliberate nor negligent. According to that court, spell Wärdell had infringed the merchandise score together with that at that spot was precisely about direct a opportunity that he mightiness create so again, since he had non previously committed a merchandise score infringement together with could non hold upwardly accused of anything to a greater extent than than carelessness, at that spot was no ground to regard the import of the stickers every bit role of a continuing merchandise score infringement. The fact that it could non hold upwardly wholly excluded that he mightiness commit a fresh infringement of Nokia’s merchandise score rights could non of itself justify a prohibition amongst a penalisation attached. The appeal courtroom thence varied the trial court's ruling together with dismissed Nokia's application.

Nokia appealed to the Supreme Court. It argued that the mere fact that Mr Wärdell objectively infringed the merchandise score was sufficient to justify the prohibition sought, claiming that at that spot was inwards whatever trial a direct a opportunity that Wärdell would commit a farther infringement. That court, considering that this dispute turns on whether Article 98 of the CTM Regulation contains an obligation to number a prohibition together with attach a penalisation to it which goes beyond Section 37a of the Swedish Law on merchandise marks, referred the next questions for a preliminary ruling:

"(1) Is the status relating to especial reasons inwards the kickoff judgement of Article 98(1) of Council Regulation 40/94 to hold upwardly interpreted every bit pregnant that a courtroom which finds that the accused has infringed a Community merchandise score may, irrespective of the other circumstances, refrain from issuing a specific prohibition of farther infringement if the courtroom considers that the direct a opportunity of farther infringement is non obvious or is otherwise only limited?

(2) Is the status relating to especial reasons inwards the kickoff judgement of Article 98(1) of the Regulation on the Community merchandise score to hold upwardly interpreted every bit pregnant that a courtroom which finds that the accused has infringed a Community merchandise score may, fifty-fifty if at that spot is no such solid soil for refraining from issuing a prohibition of farther infringement every bit contemplated inwards Question 1, refrain from issuing such a prohibition on the grounds that it is clear that a farther infringement is covered yesteryear a statutory full general prohibition of infringement nether national police together with that a penalisation may hold upwardly imposed on the accused if he commits a farther infringement intentionally or amongst gross negligence?

(3) If the respond to Question ii is no, must specific measures, yesteryear which a prohibition is for illustration coupled amongst a penalty, hold upwardly taken inwards such a illustration to ensure that the prohibition is complied with, fifty-fifty where it is clear that a farther infringement is covered yesteryear a statutory full general prohibition of infringement nether national police together with that a penalisation may hold upwardly imposed on the accused if he commits a farther infringement intentionally or amongst gross negligence?

(4) If the respond to Question iii is yes, does this apply fifty-fifty where the weather for adopting such a specific stair out inwards the illustration of a corresponding infringement of a national merchandise score would non hold upwardly regarded every bit fulfilled?".

In reply to these questions, AG Sharpston advises the ECJ to dominion every bit follows:

"Questions 1 together with 2: The status relating to especial reasons inwards Article 98(1) of Council Regulation 40/94 is non satisfied if a courtroom which finds that the accused has infringed a Community merchandise score refrains from issuing a specific prohibition of farther infringement (1) exclusively on the solid soil that it considers that the direct a opportunity of farther infringement is non obvious or is otherwise only express or (2) exclusively on the grounds that a farther infringement is covered yesteryear a statutory full general prohibition of infringement nether national police together with that a penalisation may hold upwardly imposed on the accused if he commits a farther infringement intentionally or amongst gross negligence.

Questions iii together with 4: It is for national police to decide the details of the specific measures which Article 98(1) of Regulation 40/94 requires a courtroom which prohibits a accused from continuing to infringe a Community merchandise score to have got to ensure that that prohibition is complied with. Such measures must hold upwardly effective. The requirement inwards Article 98(1) is non satisfied on the sole grounds that (i) farther infringement is covered yesteryear a statutory full general prohibition of infringement nether national police together with (ii) a penalisation may hold upwardly imposed on the accused if he commits a farther infringement intentionally or amongst gross negligence. Specific measures must hold upwardly taken to ensure that the prohibition is complied amongst fifty-fifty where the weather for adopting such measures would non hold upwardly regarded every bit fulfilled inwards the illustration of a corresponding infringement of a national merchandise mark".

, somewhat groggy from all his ECJ reading today, is pleased that the AG has noted the content of IP Enforcement Directive 2004/48. He can't remember of many skillful reasons, curt of the infringer's decease or dismemberment, for non ordering prohibition.