IP stories for the week ending 16 February 2014

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CUSTOMS AND FAKES

The ECJ has ruled that customs officials can seize and destroy goods which have been purchased within the EU from an online website based outside of the EU (the Blomqvist case concerned a fake Rolex bought in Denmark from a Chinese website), even where the website was not directed at consumers within the EU.

LINKING AND COPYRIGHT

The CJEU has ruled that sending hyperlinks to articles hosted on another website does not amount to a communication to the public, and therefore does not amount to a copyright infringement, because the communication was not to a “new public”.  

The Court said that the act of making the hyperlinks to the articles available on another website did amount to a communication to the public by the manager of that website. However, the fact that the articles had been made available on a website to the public at large meant that it was inevitable that the users of the defendant’s website who accessed the hyperlinks fell within the same group (namely the public at large) as the public who could have accessed the articles direct from the original websites.

It was therefore not surprising that the Court went on to find that it would have been a copyright infringement to provide the hyperlinks in such a way that it avoided restrictions on the original website (for example, if a subscription was required to access the articles on the original website which was avoided by clicking on the hyperlink) since that would then have been communicating the works to a new public.

Finally, the Court ruled that it was not permissible for Member States to lay down rules providing for a wider range of activities to amount to a communication to the public because that would undermine the objective of the InfoSoc Directive of avoiding legal uncertainty across the EU.

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