The Future Implications of the Usedsoft Decision

Those were the days! Up to a decade ago exhaustion in copyright was strictly limited to the distribution of (multiple) hard copies of copyright works. Anything else was considered to be outside the exhaustion rules. E.g. multiple showings of a movie in movie theatres was seen as the essence of movie copyright and exhaustion had therefore no role to play in that area according to the Coditeldecision. [1] How wrong were we though when we assumed that the digital revolution that turned so many things upside down in copyright would have no impact in this area. Admittedly, the decoder cases [2] were potentially only about hard copies. Hard copies in the sense of cards for decoders for satellite broadcasts of football matches could easily be subjected to the exhaustion rules that enforce the free movement of goods provisions of the EU Treaty. But if the decoder cards that had been obtained in Greece could be used in the UK, such use gave access to the broadcasts. The real impetus to accept this and to breach the uncontested logic of the Coditel approach may have been in competition law in the decoder cases, but they show clearly that the logic of copyright is not the dominant factor in the digital era. [3] That dominance is on the basis of the EU Treaty given to the rules on free movement and on competition law. Usedsoft [4] clearly fits in with that evolution. The Usedsoft v Oracle case [5] was all about computer software wich Oracle develops and markets. Oracle is the proprietor of the exclusive user rights under copyright law in those programs. It distributes the software at issue in 85% of cases by downloading from the internet. The customer downloads a copy of the software directly to his computer from Oracle’s website. The user right for such a program, which is granted by a licence agreement, includes the right to store a copy of the program permanently on a server and to allow a certain number of users to access it by downloading it to the main memory of their work-station computers. UsedSoft markets used software licences, including user licences for Oracle computer programs. For that purpose UsedSoft acquires from customers of Oracle such user licences, or parts of them, where the original licences relate to a greater number of users than required by the first acquirer. Usedsoft’s practices involve the making of a copy of the computer program, which raises the question of the infringement of the right of reproduction. A further question that arises is whether the right to distribute a copy of the computer program is exhausted. A positive answer to the question may help to justify Usedsoft’s business model. And effectively, in the CJEU’s judgment one see the application of exhaustion rules, despite the absence of a sale of hard copies. But the special rules that are contained in the software Directive are, for fairly obvious reasons, rather omnipresent in the decision. Could it therefore be that Usedsoft is entirely software specific [6] and that even in that context a small change to existing business practices can overcome the impact of the decision? Or is this only a first example of the exhaustion logic to come and will the Court of Justice of the European Union apply the same logic to other copyright works? On-line distribution of music and licences granting access to on-line databases are then obvious candidates that attract attention. In essence I am asked whether I have a crystal ball and whether I can gaze in it. The straightforward answer is that I do not have a crystal ball. But let me nevertheless try to identify some guiding principles. [1] Case 62/79 Coditel SA v Ciné Vog Films SA [1980] ECR 881. [2] Case C-403/08 Football Association Premier League Ltd v QC Leisure and Case C-429/08 Murphy v Media Protection Services Ltd [2012] FSR 1, [2012] 1 CMLR 29. [3] For a fuller analysis, see P. Torremans, Holyoak and Torremans Intellectual Property Law, OUP (7th ed, 2013), pp. 344-349. [4] Case C-128/11 Usedsoft GmbH v Oracle International Corp., [2012] 3 CMLR 44, [2012] ECDR 19 and [2013] RPC 6. [5] Ibid. [6] In the first two cases that followed the CJEU’s decision the German Courts seem to give an affirmative answer to this question. The OLG Frankfurt confined the decision to cases based on the Software Directive (which was treated as lex specialis in relation to the Information Society Directive), see OLG Frankfurt, 18th December 2012 -11 U 68/11, [2013] GRUR 279-285. And the LG Bielefeld explicitly refused to apply the Usedsoftapproach to the on-line distribution of e-books, as the Software Directive did not apply to that case, see LG Bielefeld, 5th March 2013, [2013] GRUR Prax 207 (summary)

ORGANIZATIONAL STRUCTURE IN PROCESS-BASED ORGANIZATIONS

This paper investigates the role of the organization structure in process-based organizations. We argue that companies cannot be designed upon organizational processes only or that process management can be simply imposed as an additional structural dimension on top of the existing functional or product dimension. It is more promising to consider process-based companies as organizations with a multidimensional structure with process ownership as a dominant dimension. The paper focuses on a number of consequences of the implementation of process-based organization structures. First, the complementary role of different types of processes is clarified. Second, we focus on the question how processes can be translated into the design of organizational units. Two key ideas underpin a process-based organizational structure. First, organizational units are organized around core processes. Second, other processes are added to these units minimizing the necessity of cross-unit coordination. This has several implications for planning and control activities and the way how process-based business units fit together to create a performing corporation. The latter can no longer be conceived within the traditional strategy- structure paradigm because of the fundamentally different role of middle and top managers.management and organization theory ;

De context van de zaak Hejduk

L’arrêt Hejduk prouve une nouvelle fois que l’interaction entre le droit de la propriété intellectuelle et le droit international privé ne se passe pas toujours de façon efficace et qu’elle devient tout à fait intéressante quand le principe de territorialité des droit intellectuels est confronté au caractère global de l’Internet. Dans cette affaire la Cour de Justice a décidé d’appliquer son interprétation traditionnelle de l’article 7(2) du Règlement Bruxelles I, comme elle découle des arrêts Melzer et Pinckney, malgré le fait que l’Internet change quand même pas mal de chose. Cette note montre que ceci donne lieu à certain problèmes et tente d’offrir des solutions. Het arrest Hejduk bewijst nogmaals dat de interactie tussen het intellectuele eigendomsrecht en het internationaal privaatrecht niet altijd vlot verloopt en helemaal interessant wordt wanneer het territorialiteitsprincipe van de intellectuele rechten geconfronteerd wordt met het globale karakter van het internet. Het Hof van Justitie besloot in deze zaak haar traditionele interpretatie van artikel 7(2) Brussel I Verordening toe te passen zoals die voortvloeit uit de arresten Melzer en Pinckney, ondanks het feit dat het Internet de zaken toch wel verandert. De noot toont aan dat dit tot problemen leidt en tracht oplossingen aan te reiken

Jurisdiction for cross-border intellectual property infringement cases in Europe

Cross-border infringement of intellectual property rights raises a number of issues. The Internet means that such cases arise ever more frequently. It is against this backdrop that this contribution looks at how the territorial international intellectual property system copes, and how EU rules on private international law can assist in resolving these issues. The contribution looks merely at jurisdiction issues, but includes suggestions to improve the private international law rules in this area

The law applicable to copyright infringement on the Internet

This article looks at the law applicable to copyright infringement on the Internet. In order to do so we need to look first of all at the rules concerning the applicable law for copyright infringement in general. Here the starting point is the Berne Convention. Its provisions give an indication of the direction in which this debate is going, but we will see that they merely provide starting points. We then move on to the approach in Europe under the Rome II Regulation and here more details become clear. Essentially, the existing rule boils down to a lex loci protectionis approach, which is in conformity with the starting point that is found in the Berne Convention. It is however doubtful whether such a country by country approach can work well in an Internet context and suggestions are made to improve the legal framework by adding a rule for ubiquitous infringement and a de minimis rule. Finally, we also briefly look at the issues surrounding the cross-border portability of online content services and the impact that the current focus on these may have in terms of the choice of law

The law applicable to copyright infringement on the Internet

This article looks at the law applicable to copyright infringement on the Internet. In order to do so we need to look first of all at the rules concerning the applicable law for copyright infringement in general. Here the starting point is the Berne Convention. Its provisions give an indication of the direction in which this debate is going, but we will see that they merely provide starting points. We then move on to the approach in Europe under the Rome II Regulation and here more details become clear. Essentially, the existing rule boils down to a lex loci protectionis approach, which is in conformity with the starting point that is found in the Berne Convention. It is however doubtful whether such a country by country approach can work well in an Internet context and suggestions are made to improve the legal framework by adding a rule for ubiquitous infringement and a de minimis rule. Finally, we also briefly look at the issues surrounding the cross-border portability of online content services and the impact that the current focus on these may have in terms of the choice of law

The law applicable to copyright infringement on the Internet

This article looks at the law applicable to copyright infringement on the Internet. In order to do so we need to look first of all at the rules concerning the applicable law for copyright infringement in general. Here the starting point is the Berne Convention. Its provisions give an indication of the direction in which this debate is going, but we will see that they merely provide starting points. We then move on to the approach in Europe under the Rome II Regulation and here more details become clear. Essentially, the existing rule boils down to a lex loci protectionis approach, which is in conformity with the starting point that is found in the Berne Convention. It is however doubtful whether such a country by country approach can work well in an Internet context and suggestions are made to improve the legal framework by adding a rule for ubiquitous infringement and a de minimis rule. Finally, we also briefly look at the issues surrounding the cross-border portability of online content services and the impact that the current focus on these may have in terms of the choice of law