This Kat is lucky (or unlucky) to be "grounded" in his apartment in Shanghai due to the Coronavirus. But some of you may still be busy with your work. If you missed some of the amazing posts published last week in this blog, this Kat is now honoured to provide a summary.

Kan He looked into the decision of the Nanshan District Court of Guangdong Province in the Shenzhen Tencent v Yinxun case relating to an AI-generated work. The court held that the AI-generated work is protectable by copyright law since it is as a work of legal entities.

Eleonora Rosati discussed the decision of the UK Intellectual Property Enterprise Court in Response Clothing Ltd v The Edinburgh Woollen Mill Ltd case. The court, in the first UK decision to apply the CJEU Cofemel judgment, ruled that the fabric at issue is protected by copyright law. In so doing, it precluded any requirement of aesthetic appeal in assessing whether a work is to be protected under copyright law.

Chijioke Okorie discussed the South African Government's Communication to the WTO Council for TRIPS entitled: 'Intellectual Property and the Public Interest: The WTO TRIPS Agreement and the Copyright Three-Step Test'. This Communication was issued as a consultation with the WTO Member States (MS) on the flexibilities available for MS to craft copyright limitations and exceptions under the principles and objectives of the TRIPS agreement.

Riana Harvey considered the judgment of the General Court of the EU in the T-658/18 case concerning Hästens Sängar's trade mark application for its chequered figurative mark. The court agreed with he EUIPO that the mark applied for was devoid of any distinctive character for all of the goods and services applied for.

Eleonora Rosati reported on the eagerly awaited judgment of the CJEU in the Sky v Skykick case. The Court held that a trade mark cannot be declared wholly or partially invalid on the grounds of lack of clarity and precisions of its specifications.

Léon Dijkman separately shared his thoughts on this case concerning the issue of trade mark registrations suffering from a lack of clarity.

Rose Hughes summarised and reviewed the patent news, reports and commentaries on the Board of Appeal's decision in the CRISPR hearing (T-844/18).

Katfriend Gaëlle Béquet shared her thoughts on the CJEU's decision in the Generics v Competition and Markets Authority case (C-307/18), concerning the pay-for-delay agreement used in the pharmaceutical industry. Under such agreements, the patent holder pays generics to stay off the market or at least delay their entry. The Court held that such agreements are likely to violate competition law where reverse payments occur without justifiable explanation.

Tian Lu reviewed the book, 'The Future of Asian Trade Deals and IP', edited by Prof. Kung-Chung Liu and Prof. Julien Chaise. The book examines two important trade deals (CPTPP and RCEP), especially in light of their IP chapters.

Frantzeska Papadopoulou reviewed the book 'Research Handbook on Patent Law and Theory (second edition)', edited by Toshiko Takenaka, which offers a comparative approach by which salient issues of patent law are discussed from the principal vantage of three major jurisdictions: the US, Europe, and Japan.

Ieva Giedrimaite provided an overview of the guidelines of the UK Jurisdiction Taskforce on the enforceability of smart contracts.

Annsley Merelle Ward discussed the UKIPO's new guidelines, entitled "Intellectual Property and the Transition Period", concerning the application of EU IP after Brexit. In this transition period, the UK will remain part of the EU trade mark and the registered and unregistered Community design law systems.

Riana Harvey informed Kat readers in her Tuesday Thingies and Sunday Surprises of IP events and opportunities taking place around the world.

Neil Wilkof remembered his recently departed cat, Carmen, and pondered how we go about giving a name to our pets.

Never Too Late 250 [Week ending 26 Jan] Taking the measure of the prior art (T 1943/15) | New Year, New Feature! | Never Too Late: if you missed The IPKat last week | Tuesday Thingies | Book Review: Cambridge Handbook of Intellectual Property in Central and Eastern Europe | No Music Is "Free of Broadcasting Rights", French Court Rules | The right of the public to access documents v the right to confidentiality for marketing authorisation (MA) documents: Transparency wins out in yesterday's CJEU rulings | The Swedish Patent and Market Court issues its first dynamic blocking injunction | The United Kingdom will not transpose the DSM Directive | [Guest Post] IP Education Series #4 | Book review: The Innovation Society and Intellectual Property | AG Szpunar advises CJEU to rule that car leasing companies are not 'users' that provide a communication to the public

Never Too Late 249 [Week ending 19 Jan] Monday Miscellany | Do we need a referral to the Enlarged Board of Appeal on the novelty of selection inventions? | The Broad Institute's CRISPR patent hearing: Day 1, Setting the Stage | South Africa's Constitutional Court rules on whether patent validity can be used as both a sword (revocation action) and a shield (infringement action) in patent proceedings | An Infringement of IP Rights that is also a Breach of Contract is still an Infringement of IP Rights | Never Too Late: if you missed the IPKat last week | CRISPR hearing days 2-3: Board of Appeal poised to refer to the EBA? | The IPKat congratulates two new IP silks | A Creative Commons-Licensed Work Walks into a Copy Shop - Great Minds v. Office Depot | Katcall: Openings for InternKats! | Patent Injunctions Update: German Ministry of Justice publishes draft amendment to Patent Act and Hague Court of Appeal decides in further Philips FRAND cases | CRISPR hearing Day 4: Still a clear cut case of invalid priority, Broad Institute's appeal dismissed | Book Review: 3D Printing and Intellectual Property | Looking to catch up with the latest trade mark news? Here's the 2020 edition of Retromark

This Kat is happy to provide a review of Licensing and Access to Content in the European Union, Regulation between Copyright and Competition Law by Sebastian Felix Schwemer, University of Copenhagen.

Copyright is territorial – but is the internet? No, answers Sebastian Felix Schwemer who says that the delineation of national exploitation of content is at odds with the technological possibilities of the internet, and even more so, the Digital Single Market strategy of the European Union.

His book addresses two main questions: first, what is the regulatory framework for licensing of – and access to – online music and audio-visual content in cross-boarder stations? Second, how do the different regulatory frameworks interact, what inconsistencies emerge and how could these be resolved?

This investigation, based on the research of Schwemer’s PhD at the University of Copenhagen, is presented in 6 substantive chapters. The first chapter provides an introduction, identifying the focus and scope of the study, as well as highlighting the need for cross-boarder licensing and access solutions in view of the EU policy. It also brings the reader up to speed on the Digital Single Market strategy of the EU, as well as the modes of governance in the EU.
Chapter 2: Market and economics context

Chapter 2 explores the relationship between cross-boarder access and multi-territorial licensing. It then describes the evolution of territorial delineation by author CMOs and the emergence of novel music licensing arrangements. It establishes the underlying economic rationales and market context and then examines the territorial practices and licensing arrangements of audio-visual works.

It argues that fragmentation of rights, rightsholders and repertoires across countries is at the core of high transaction costs. In the online music rights landscape, exclusivity has been a concern primarily as to territorial licensing exclusivity by the respective CMOs for a given territory. In the audio-visual landscape, territorial exclusivity appears to be prevalent in the market delineation for licensees.
3: Licensing and access from a competition law perspective

Chapter 2 looks at how territorial restrictions in access or licensing arrangements are dealt with from a competition law perspective. In particular, it provides a case study of territorial restrictions of music in the licensor-licensor relationship, which has been dominated by model contracts. It also looks at the licensor-licensee relationship regarding territorial restrictions in licensing contracts for audio-visual works. In particular, it analysis model contracts for RRAs in the Barcelona, Simulcasting, Santiago v CISAC proceedings and the licensor-licensee relationship in the Premier League v Murphy case and the pay-TV sector.

It argues that the horizontal relationship among licensors has until recently received more scrutiny from the European Commission than the vertical contracting licensing relationship between rights holders and licenses. It highlights that territorial delineation is a traditional and complex tension between the fields of copyright and competition law.
5: Cross-border access from a legislative perspective

Chapter 5 turns to more recent developments in multi-territorial access, namely; geo-blocking and portability. It is noted that the EU Geo-blocking regulation 2018/302 is not aimed at audio-visual services and music services are ‘hardly covered’, leaving the issues unaddressed, as such, Schwemer argues that only a patchwork of rules remain, notwithstanding the recent developments of the Copyright in the Digital Single Market Directive.

Territorial Kat Image: koi ko

Whilst the research for this book was evidentially undertaken before the implementation of the DSM Copyright Directive, the discussion remains relevant, in particular to those who consider that some of the more controversial sections of the Directive might have been more appropriately dealt with as an issue of unfair competition.

6: The regulatory system: challenges and solutions

Chapter 6 analysis the characteristics of the licensing systems and the EU approach to private market solutions with a view to map the overlaps and inconsistencies. It examines the interactions between the legal framework and the market developments to discuss how territoriality can be reconciled with borderless access to music and audio-visual content.

Schwemer suggests, what he calls, “screws to adjust the system which are additionally dependent on an intervention limiting contractual freedom.” And concludes by noting that whilst in the analogue world the free movement of copyright-protected goods has been somewhat limited by the exhaustion principle, the digital counterpart to free movement of online content has yet to be found. However, the CRM Directive and the Premier League v Murphy case indicate that competition law is the regulators instrument of choice.

This book will appeal to anyone interested in the development of EU copyright policy, EU cross-border copyright licensing and access to copyright works, and in particular those with an interest in music and audio-visual works. Whilst this book is based on PhD research and will therefore be of interest to other researchers, academics and students, it also offers practical solutions that would also be of interest to policy makers, regulators, practitioners and copyright holders.
Publisher: Cambridge University Press
Hardback ISBN: 9781108475778 - £ 85.00
Also available as an ebook