"For the loser now/Will be later to win"

Scholars and cognoscenti of twentieth century culture will instantly identify the source of the title of this post: Bob Dylan's "The Times They Are A‑Changin'", in which copyright in the classic Dylan recording is now, it seems, safely in Sony's hands following the ruling of the Court of Justice of the European Communities this morning in Case C-240/07, Sony Music Entertainment (Germany) GmbH v Falcon Neue Medien Vertrieb GmbH. The Advocate General's Opinion in this reference remains frustratingly beyond the linguistic grasp of this blogger, but today's ruling has been lovingly translated into his mother tongue from the original German (though Birgit, the most recent recruit to the IPKat team, would have been perfectly equipped to deal with it).

So what is this ruling, on a request for a preliminary ruling from the Bundesgerichtshof, all about? Falcon distributed two CDs containing recordings of performances by the artist Bob Dylan: "Bob Dylan – Blowin in the Wind" and "Bob Dylan – Gates of Eden". These CDs featured tracks that were originally featured in the long-playing vinyl albums "Bob Dylan – Bringing It All Back Home", "The Times They Are A‑Changin'" and "Highway 61 Revisited", all three of thse albums having been released in the USA before 1 January 1966.

Sony, the German subsidiary of the Japanese multi‑national of the same name, sought an injunction to stop Falcon copying and distributing its CDs, or from having others copy and distribute them on its behalf. Sony also sought orders of discovery against Falcon and to determine Falcon’s liability for damages. Falcon responded that no phonogram producer had any rights in Germany to any Bob Dylan albums recorded beore 1 January 1966.

The Landgericht dismissed Sony’s application. When Sony appealed, the appellate court said there was no doubt that the rights in the disputed tracks had been effectively transferred to Sony but still dismissed Sony’s appeal. This was because, under the 1971 Geneva Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms, in force both in Germany and the United States, phonogram producers were entitled to copyright protection only in relation to activities that took place after 1 January 1966. If music recordings produced before that date were not entitled to copyright protection in Germany, the transitional provisions of German law that were intended to bring national law in line with Directive 93/98 (harmonising copyright term) did not apply to works that had never even been protected in Germany. Sony then sought revision of this ruling by the Bundesgerichtshof which, noting that the tracks in question were protected in another EU member state (the United Kingdom) even though they were not protected in Germany, decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

"(1) Does the term of protection granted by Directive 2006/116 [the codified tidying-up of Directive 93/98 on copyright term] … under the conditions set out in Article 10(2) thereof apply also in the case of subject-matter that has not at any time been protected in the Member State in which protection is sought?

(2) If Question 1 is to be answered in the affirmative:

(a) Do national provisions governing the protection of rightholders who are not Community nationals constitute national provisions within the meaning of Article 10(2) of Directive 2006/116?

(b) Does the term of protection granted pursuant to Article 10(2) of Directive 2006/116 also apply to subject-matter that, on 1 July 1995, fulfilled the criteria set out in Council Directive 92/100 [on rental and lending rights etc] …, but whose rightholder is not a Community national?"

This morning the ECJ ruled as follows:

"The term of protection provided for by Directive 2006/116 ... is also applicable, pursuant to Article 10(2) thereof, where the subject‑matter at issue has not at any time been protected in the Member State in which the protection is sought.

Article 10(2) of Directive 2006/116 is to be interpreted as meaning that the terms of protection provided for by that directive apply in a situation where the work or subject‑matter at issue was, on 1 July 1995, protected as such in at least one Member State under that Member State’s national legislation on copyright and related rights and where the holder of such rights in respect of that work or subject‑matter, who is a national of a non‑Member State, benefited, at that date, from the protection provided for by those national provisions".

The IPKatbets that Sony feels pretty pleased with this ruling, which will now give it the means to ruffle Falcon's feathers. Merpel notes that this is a fairly short ruling, of just 39 paragraphs inclusive of recitations of the relevant law, facts, analysis and ruling. a relative novelty in IP cases these days is that the Court cites no case law in reaching its decision.

IPKat comment on the Advocate General's Opinion here
Report here from Bloomberg
How to train a Falcon here