IP CHALLENGES IN CYBERSPACE

JEANINE RIZZOCOMNET 7th March, 2013

The IP RightsEU & Malta

• COPYRIGHT• TRADE MARKS• PATENTS• DESIGN RIGHTS

• Geographical Indications of Origin

COPYRIGHT• Gives the creator of a work exclusive rights over that work. • Lasts for life of author + 70 yrs post mortis autoris • Copyright exists for the following types of works:(a) artistic works(b) audiovisual works;(c) databases;(d) literary works;(e) musical works.

COPY – defined

Maltese Copyright Act:a reproduction in written or graphic form including digital reproduction, in the form of a recording or audiovisual work, or in any other material form

>>Of whole or a substantial part of the work.

Restricted Acts• Reproduction

– direct or indirect, temporary or permanent, by any means and in any form, in whole or in part;

• Distribution– issues of exhaustion

• Translation and Adaptation– even into other computer languages

• Communication to the public • Making Available

– (introduced for the Internet age)– At a time and place chosen by the user

Limitations = exceptions

(a) ….. …… …… ….. …… …… (w)• Guidance by EU in its Directives

• Transient and incidental copies are allowed. Transient = occur as part of transmission but have no significance from a Copyright perspectiveIncidental = occur only for technical reasons, for example rooter copies. They occur whether or not you want them to.

Copyright – Google Books

• Class action brought by the Author’s Guild against Google for infringement of copyright– Google had scanned, copied and produced digital versions

of books (public domain, orphan works, and copyrighted)• The claim was for Google to pay $125m• In 2008 a settlement was reached, but other Court

cases followed, and the settlement was reviewed. • Google conceded to copying 12m books, and had

identified 174 similar books to digitise.

COPYING in the digital era

Napster

Grokster

Peer 2 Peer• Making available to

others

• Making of a reproduction on your computer

• File sharing = transmission & reproduction

• Legality of source copy

BitTorrent

Pirate Bay- 85th most popular site in World

- Provided links to Torrents- Admins guilty of assisting C infringement- Fine of 46mSEK and prison term

Liberty Land- In operation since 2009, 800,000

members- Was one of France’s top 200 sites- Site made revenue from banner

advertising- Admins arrested, face $700,000 in fines

Trade Marks• any sign capable of being represented graphically which is

capable of distinguishing goods or services of one undertaking from those of other undertakings.

• Exclusive rights last for 10 years, and can be renewed ad infinitum.

• Stops others from using:– Identical sign on identical goods– Similar sign on identical goods, or identical sign on similar goods – if

there is likelihood of confusion.

• Online cases: CYBERSQUATTING

Trade MarksGoogle AdWords Case:

Google Adwords Case

• The case was heard by the Court of Justice of the European Union.

• Cases filed in France by Louis Vuitton, Viaticum and Luteciel – especially in the case of LV, Google sold keywords to advertisers of imitations of LV products.

• Court of Justice turned out a peculiar judgment:

Court’s Decision

The Court’s decision outlined two points:1. Use by an advertiser of a keyword identical

to a third party’s trade mark constitutes a key prerequisite to finding TM infringement;

2. With regard to Google, the Court of Justice held that it did not infringe EU TM law since it was carrying out a commercial activity, selling advertising space.

Where to?

THANK YOU FOR YOUR ATTENTION

Jeanine Rizzowww.fenechlaw.com