The Netherlands: main supplier to the CJEU from ISP’s to blond starlets and more

The Dutch are known for…

… but did you know we also ask a lot of questions? 40 preliminary questions in 2016. Including questions about very important topics, such as: Hyperlinking Streaming infringing content through a mediaplayer E-lending Blocking the Pirate Bay Creamcheese

Sanoma/ GS Media: hyperlinking

Is hyperlinking to illegal content in a cyberlocker copyright infringment? Yes! Amsterdam court: intervention + new public = infringment No! Court of appeals: no intervention; photos were already online  no infringment (but unlawful act) Supreme Court (post Svensson): there is an intervention, but is there a new public? Let’s ask the ECJ AG Wathelet: no indispensable intervention, no communication to the public

Is hyperlinking to illegal content copyright infringment? ECJ: communication to the public: if there is reasonable knowledge that the content was posted on the source website without consent; person who posts links for profit can be expected to check the nature of the content and is therefore presumed to have knowledge of the illegal nature. Questions/criticism - Is this the end of Google/the internet?! Does this also apply to illegal content that is posted with consent elsewhere on the internet? (see par. 52) Communication to the public more and more dependent on the circumstances of the case (knowledge, profit making intent).

Filmspeler: pre-installed hyperlinks in a media player Media player that lets users play content from the internet on their (television) screen, has pre-installed add-ons containing hyperlinks to websites with infringing content. Communication to the public? CJEU: yes. intervention with full knowledge of the consequences (different from the mere provision of physical facilities); knowledge and profit-making.

VOB/Leenrecht: e-lending/first sale Question 1: Does the lending out of e-books by libraries fall under the lending right exception? CJEU: Yes. Question 2: can downloading an e-book constitute “a first sale or other transfer of ownership”? CJEU: We do not have to answer this question.

Upcoming cases: Brein/Ziggo Does the Pirate Bay communicate works to the public? (AG Szpunar: yes. Joint liablity with the users of the network if they are aware of illegality and do not take action.) 2) If there is no communication to the public, is it still possible to obtain an injuction against an ISP to block the Pirate Bay? (AG Szpunar: yes. Proportionate to the significance and seriousness of the copyright infringements committed on that site.)

Upcoming cases: creamcheese Court of Appeals Arnhem-Leeuwarden: Can the taste of food be protected by copyright? On smell (perfume): Dutch Supreme Court in 2006 (Lancôme/Kecofa): yes, smell is copyright-protectable. French Cour de Cassation in 2013: no, c’est impossible.

Thank you! Marijn Kingma Höcker Advocaten - Amsterdam Tel. +31-20 577 77 26 Email kingma@hocker.nl Site www.hocker.nl