Junghi Woo is an IPilogue Writer and a 3L JD Candidate at Osgoode Hall Law School.

On July 2, 2021, Russian President Vladimir Putin signed that redefined the world’s infamous bubbly drink. According to this change, only Russian-made Shampanskoye can use the prestigious “champagne” label in Russia. Non-Russian producers must now label their competing products as “sparkling wine” in Russia.��

This legislation contrasts (EU) to enforce geographical indication protection for wines and spirits. The term “champagne” was originally reserved for sparkling wine produced in the Champagne wine region of France. . Incidentally, they import cultural and economic value to such labels due to the quality or reputation attached to the geographical origin. For France, champagne is one of the most prestigious and expensive spirits in the market. Its objections were unsurprising, to say the least.

Despite its threats to suspend exports to Russia upon hearing of the news, Moët Hennessy, the world-famous champagne producer responsible for Veuve Clicquot, Ruinart, Mercier, Krug, and Dom Pérignon, retracted and announced that “

(WTO) that gives them a monopoly over the use of their brands. Franck Riester, France’s foreign trade minister, discussed the possibility of defending the interests of French champagne producers through legal action. European Commission spokeswoman Miriam Garcia Ferrer emphasized that the EU would support France in this endeavor to protect its rights.

, entitled “Geographical Indications”, and , which prohibits states from introducing special requirements that would “unjustifiably encumber” the use of affected trademarks, both may apply in this scenario. While trademark law protecting geographical indications is fairly straightforward, Article 20 caused a fair amount of political debate this past decade.

For example, in 2020, , prohibiting brand logos, designs, emblems, and slogans. This decision was upheld due to health concerns over the use of bright, flashy packaging to undermine health warnings and promote smoking. The WTO justified this decision as discouraging the consumption of a harmful and deadly product.

However, there appears to be no policy considerations for this legislative change as President Putin previously made similar decisions for Russia. For example, in 2014, to promote local products. In a way, this affects economic competition between products as now French champagne producers may not be able to realize the full value of their products. The label’s misunderstandings may also confuse future generations on the true origins of “champagne”, one of the primary concerns of trademark law. In contrast, geographical indications may arguably lead to a monopoly and deter users from purchasing the same product merely because it comes from different locations. While geographical indications are not perfect, their impact may simply be fact-dependent.

This future ultimately depends on if France or the EU files a complaint to the WTO. The outcome of this case would serve as a strong landmark ruling on the international significance of the history and cultural heritage of your everyday glass of … sparkling wine.

The post Redefining an Industry: Where is Champagne From? appeared first on IPOsgoode.

��.���������� “Dude, Where Are We?” - A Quick Review of The European Court of Justice

The (Court of Justice) is the highest court in the European Union on matters involving European Union law (“Union law”). It is responsible for interpreting Union Law and ensuring that it is equally applied across all EU member states. While the Court of Justice is the supreme guardian of Union legality, many provisions of Treaties signed by Member States directly confer individual rights on nationals of Member States, which national courts are bound to uphold. Thus, national courts can be thought of as “the first guarantors” of Union law.

To ensure the effective and uniform application of Union legislation and to prevent divergent interpretations, national courts may turn to the Court of Justice and ask for clarification on a point concerning the interpretation of Union law. Those national courts that receive replies are bound by the interpretation given by the Court of Justice. Other national courts facing problems of the same nature are also bound by the decision. Although requests for references may only be raised by a national court, all the parties involved may take part in proceedings before the Court of Justice.

��.���������� Peter Pinckney’s Problem: Keeping his Fight in France

was a British rock band that enjoyed short-lived success in the 1970s. Peter Pinckney is the author, composer and performer of 12 songs recorded by that group. In the early 2000s, he discovered that his songs had been reproduced without his authority on CDs in Austria by Mediatech and marketed by the UK company Crusoe.

In 2006, Pinckney ��(para 10) for copyright infringement in the Toulouse Regional Court. Mediatech challenged the jurisdiction of the French courts on this matter. The Regional Court of Toulouse dismissed the Austrian jurisdictional challenge on the grounds that Mr. Pinckney had been able to purchase the infringing records from a website that was widely accessible to the French public. This, the Court ruled, was sufficient to establish the substantial connection between the facts and the alleged damage to grant jurisdiction to the French courts.

The Toulouse Court of Appeal ��(para 13), ruling that the French court had no jurisdiction since the defendant was domiciled in Austria and because there was no way damage to Pinckney could have occurred in France given that the CDs were marketed in the UK.

��.���������� Pinckney’s Appeal and the French Court’s Request for a Ruling on Article 5(3)

Pinckney brought ��(para 14) against the Toulouse judgment, relying on Article 5(3) of the which states that:

“A person domiciled in a Member State may, in another Member state, be sued:
(3) In matters relating to tort*, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.”

In light of Pinckney’s appeal, the French court of cassation decided to stay its proceedings and for a preliminary ruling on the correct interpretation of 5(3).

��.���������� Court of Justice’s Ruling: Reiterated Melzer, Applied eDate and Wintersteiger

The Court of Justice by restating the interpretation of Article 5(3) it outlined in (Melzer), (eDate) and (Wintersteiger).

In Melzer, the Court of Justice established that Article 5(3) should be interpreted to mean that a defendant may be sued in the place where the damage occurred (locus damni) and, if different, where the action or inaction leading to that damage occurred (locus delicti commissi).�� The Court of Justice conceded however that one limitation of Melzer was that it did not cover the possibility of suing an alleged perpetrator of the alleged damage before the court seised on the basis that it is the place of the event giving rise to the damage.

In this case, it was common ground that the allegedly infringing action did not take place within France. ��The question at hand was whether or not the court had jurisdiction, given that it was the location where the alleged damage occurred.��

In eDate and Wintersteiger, the Court of Justice developed three principles for the interpretation of Article 5(3) when applied to allegations of infringement committed via the internet.�� These were:

(1)���� That the place where the alleged damage occurred within the meaning of that provision may vary according to the nature of the right allegedly infringed (, paras 21 to 24);

(2)���� That the likelihood of the damage occurring in a particular Member State is subject to the requirement that the right in respect of which infringement is alleged is protected in that Member State (��at para 25); and

(3)���� In order to attribute jurisdiction to a court to hear an allegation of infringement in matters of tort, the identification of the place where the alleged damage occurred also depends on which court is in the best position to determine whether the alleged infringement is well founded ( at para 48 and at para 27).

To identify the place where damage caused by actions on the internet occurred, the Court of Justice applied these principles. ��Consequently it distinguished between the infringement of personality rights and the infringement of intellectual and industrial property rights.

The Court then reiterated that victims of personality right infringement (protected in all EU Member States) may bring his or her action in the court of the Member State where the harmful event occurred. ��Moreover, if the offending work has been placed online he or she may bring an action in the territory of any Member State where the action is accessible. However, those courts only have jurisdiction with respect to the damages caused in the territory of the court seised (��at��para 52).

The Court of Justice further specified that the allegation of an infringement of an intellectual and industrial property right (which is typically vests through registration) is limited to the territory of the Member State of registration and may only be brought before the court of that State. ��This is because the Court of Justice has deemed that these are the courts best placed to ascertain whether the right at issue has been infringed (Wintersteiger at paras 25 to 28).

Based on these principles, the Court of Justice ruled that,

In the event of alleged infringement of copyrights protected by the Member State of the court seised [in this case France], the latter has jurisdiction to hear an action to establish liability brought by the author of a work against a company established in another Member State [in this case Austria] and which has, in the latter State, reproduced that work on a material support [in this case by pressing CDs] which is subsequently sold by companies established in a third Member State [in this case the UK] through an internet site also accessible with the jurisdiction of the court seised [in this case France]. However that court has jurisdiction only to determine the damage caused in the Member State within which it is situated [in this case France].

In other words, the Court of Justice constructed a very narrow interpretation of article 5(3) to allow the Toulouse Court to hear Pinckney’s suit against Mediatech while restricting its assessment of damages to those damages that would have occurred in France.

E.������������ An Unresolved Matter: Did Mediatech Actually Violate Copyright?

Of course, the question left hanging by the Court of Justice is whether or not a company in another Member State making CDs for a second Member State is in fact a violation of French copyright law.�� This question will now be for the French courts to determine.

F. �� �� ����Significance��of this Decision?��

This particular ruling would appear to only be of use to a copyright holder who (1) is seeking jurisdiction in his or her home state that is (2) an EU Member state which has (3) copyright protection and (4) has had his/her copyrights violated in another EU Member state (5) wherein the alleged violation involved the reproduction of the work "on a material support" (6) and was then sold by parties in another EU Member state (7) through an internet site (8) wherein that site was accessible from the author's home state.

The extremely narrow interpretation provided by the Court of Justice is understandable, given that ��in Europe,��like most places in the world, copyright vests without the requirement of formal registration (). ��A broad interpretation of article 5(3) fling national court doors open��to artists clamoring for damages against actors in other states on the broad grounds of the violation of personality rights.��However, given��the European Court of Justice's����in the Union, the Court of Justice was likely mindful of creating too wide of a doorway when crafting this decision.

As a small technical point, one could argue that the European Court of Justice relied too heavily on a trademarks case (Wintersteiger) in crafting its decision with respect to copyright. ��In so doing, it could be argued that the Court of Justice misapplied a set of principles originally crafted for a formality-based regime to a formality-free question. ��However, in light of the broader policy concerns outlined above, it is not likely that this would compel any future proceeding before the Court of Justice.

This decision then is a somewhat uninteresting legal end to an otherwise exciting news story.��Still, for non-European practitioners, this decision provides some insight into copyright protection in the European Union.

Beatrice Sze is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

The post European Court of Justice Provides Narrow Answer to Question of Jurisdiction for Internet-based Copyright Infringement appeared first on IPOsgoode.

World Tricot was a knitwear supplier to Chanel.�� In 2009, World Tricot commenced an action against Chanel after it discovered a Chanel-branded cardigan for sale bearing a striking resemblance to knitwear created by World Tricot.�� Claiming ownership rights over the knitwear design, World Tricot sought damages for counterfeiting and wrongful termination of a business relationship.�� Chanel vehemently denied these allegations and counterclaimed that World Tricot was publicly disparaging Chanel’s reputation and goodwill.�� Moreover, Chanel stated that they had never been accused of stealing the designs of a supplier in any of their 400+ supplier arrangements.

At the trial level, Chanel was successful.�� However, World Tricot stood its ground by appealing the decision, which ultimately resulted in Chanel paying €200,000 in damages for counterfeiting.�� In today’s economy where manufacturing is globally outsourced and the domestic small shop is coming under increasing pressure, this decision is likely welcomed by France’s domestic manufacturers.�� The decision is definitely a boost for the small business in the fashion industry.�� There is no word yet on whether Chanel will appeal this decision to the French Supreme Court.

Ashlee Froese is a branding and fashion lawyer at Gilbert’s LLP and runs the fashion law website . Follow her on twitter .

The post Mon Dieu: Chanel Accused of Counterfeiting appeared first on IPOsgoode.

Since the introduction of Google Books in 2004 (previously known as Google Book Search and Google Print), Google has seen the development of its online index and search tool��marred by numerous lawsuits at home and abroad alleging copyright infringement. Publishers, authors, image creators and the like took issue with their unauthorized digitization of copyrighted works. In the United States, Google’s main contention throughout this legal saga has been that the snippets of pages that were digitized from��books were covered under fair use laws.

Although it seemed as if an agreement between U.S. publishers and Google was close to approval from both sides in 2009, were critical of the wide-reaching and all-too-favourable terms for Google. Even the Department of Justice at a fairness hearing in 2010, citing the fact that the terms may violate anti-trust laws in the U.S. and also required the court to exercise powers that it did not have to instigate copyright reform beyond the scope of the case at hand. Not surprisingly, New 91��ɫ Southern District Judge Denny Chin because it “goes too far” in giving Google the upper hand. Interestingly, Judge Chin noted that many of the objections cited could be pacified if the terms reflected an “opt-in” framework rather than the “opt-out” process proposed. and other content creators were especially critical of the opt-out model, wherein Google had sweeping rights to use any orphan works indefinitely until the rights-holder comes forward and objects to such unauthorized use.

In contrast, the settlement that has come to fruition in France reflects such an opt-in framework, wherein Google must first obtain the permissions of publishing houses and their respective authors prior to digitizing the French works. To date, Google has already signed digitization agreements with two major French publishers, and . Following this settlement, it is likely that Google will set its sights on convincing more French publishers and content creators to join. However, it is that publishing houses that ally with Google in this deal must agree that they will not sell their books through any other competing e-content distributor, which could represent a major��blow for Amazon, who recently introduced its French-language Kindle reader and accompanying online bookstore in France. What will��likely result in France is a race between Google, Amazon, Apple and��other e-book retailers��to sign any and all publishers as quickly as possible.

The agreement in France may nonetheless have little effect on the situation in the States. On May 31, Judge Chin rejecting Google’s motion to dismiss the claims brought forward while also granting the three plaintiffs involved class certification status. Google has since to appeal the decision with the Second Circuit, with summary judgments to be filed by July 27 and trial scheduled to begin on October 9. It seems likely that the case will proceed to trial for a determination of whether Google has infringed copyrighted works and owe statutory damages. The debate will no doubt be centered upon what “fair use” in this context can mean and whether Google’s use of the copyrighted works can fall under the fair use defense.

Publishers Weekly has that remarks made by the Authors Guild’s Executive Director seem to suggest another invitation for Google to resume negotiations for settlement. For the publishing industry as a whole, a key point of contention in these negotiations that must be resolved is a determination of how to ensure that authors of all published works, including those of an academic nature, can be taken into account through this arrangement. UC Berkeley Law’s suggests that scholars like herself are quite happy to provide their academic works in an open access forum, and their goals differ quite a bit from the more profit-oriented Authors Guild. As Samuelson contends, a class action lawsuit such as this may not be the most appropriate mechanism��with which to spur copyright reform to develop legal open access information schemes that cater to all. The results of this case, whether determined in or out of court, may indeed be a step in the right direction for the larger discussion of how best to balance protection of creators’ rights with public access to information and scholarship across all genres.

Fan Hannah Lan is a JD Candidate at Osgoode Hall Law School.

The post Google Plays Nice with French Publishers, Trial Scheduled in the U.S. appeared first on IPOsgoode.

Andrew Baker is a LLB/BCL candidate at McGill University Faculty of Law.

A has led to some uncertainty as subject to protection.

The case involved a Marseille-based photographer, Patrick Box, who authored a photo originally published in a book dedicated to bouillabaisse, a fish stew popular in the south of France.�� The photo depicted two fish, their bodies curved so that they were joined at the face and tail, on a yellow plate on a black background. ��Box later transferred the photograph (among others) to the City of Marseille’s publication, La revue culturelle de la Ville de Marseille, to be used in an upcoming article on the topic of the city’s famous culinary delight.�� The 211th edition was released in December 2005 containing a photo authored by another photographer.�� The new photo contained parts of Box’s original which had been modified by the addition of more fish, all without his permission ( for photos of the original and modified works).�� Unable to reach an amicable solution with the publishers, Box took the case to trial.

Box’s argument is based on (CPI) which grants the author of an original work an incorporeal exclusive right which can be set up against others.�� The existence or conclusion of a rental contract for a work or service by the author of an original work does not bring about a derogation of the author’s rights of enjoyment except where prescribed by law.�� In other words, if the court deemed that Box’s photograph is an original work under Art. 111-1, he is granted protection against moral harm stemming from non-authorized use even though he transferred the photos.

At first instance, the trial judge found in favour of Box.�� The defendants did not contest that the work had been partially reproduced.�� The judge ruled that the photograph, by the choice of the elements which composed it including the colour, lighting, and angle, sufficiently demonstrated a mark of personality of the author constituting an original work.�� The co-defendants were found liable in solidum for €15,165.

The Ville de Marseille appealed the decision, contesting primarily that the photograph should be denied protection accorded to an intellectual work under Art. 111-1 because it does not constitute an original work.�� The Court of Appeal explained that originality signifies the reflection of the personality of the author or the revelation of a creative talent.�� The court warned against confusing originality with mere professional competence possessed by a photographer in general, the latter amounting to a mere prestation of services rather than the creation of a protected work.�� The Court of Appeal was not convinced that Box’s photo sufficiently demonstrated his personality as author and overturned the initial ruling.

The Supreme Court essentially upheld the decision of the Court of Appeal.�� While somewhat reticent about the Court of Appeal’s reasoning which invoked factual elements, the Supreme Court agreed in principle that the explanation that Mr. Box’s services were merely technical was a sufficient response to the arguments brought forth by the parties ( for a more detailed judicial history).

Article 112-2 of the CPI explicitly includes photographs as protected works.�� But if no other formal legal process has been followed to guarantee protection, .�� Proving originality in a legal sense because there are no formal criteria for determining such a subjective question.�� Yet, the stakes are high since the absence of originality will deny the author any protection.�� The law must utilize a similar framework for fields as diverse as software and modern art.�� The decision has that the legal standard for their particular profession is moving in the wrong direction because it demonstrates that even works destined for publication may not be protected.

Others contend that the decision does not demonstrate a problem with the judicial notion of originality or even the capacity of courts to apply such principles.�� This is especially the case with photography, which is highly susceptible to infringement.

The current decision does not draw any particular bright line rule as the court explicitly states that a photograph is still an original work when the personality of the author is revealed through the choices he or she makes in its production.�� Yet, some disciplines may be more susceptible to the difficulties of demonstrating one’s personality in the final work.

The post Kettle Of Fish: The Concept Of Originality In Protecting Photographic Works appeared first on IPOsgoode.

Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

The on a proposed law in France about creating an online “right to forget” (Internet legislation would seem to be a hot issue in France; recent news includes the October 2009 acceptance of the graduated-response “3-strikes”, and President Sarkozy has been talking about a “”). There doesn't seem to be much concrete information available about the proposed law yet, but the BBC article suggests that the “right-to-forget would force online and mobile firms to dispose of e-mails and text messages after an agreed length of time or on the request of the individual concerned.” As with many attempts to regulate content on the Internet, the first question that comes to mind is the practical enforceability of any such rule – John Gilmore famously said that “The Net interprets censorship as damage and routes around it”, and there's plenty of evidence to suggest that statement still has a great deal of truth.�� The proposed law also raises interesting questions about how societies and nations are struggling to come to grips with a digital world in which vast amounts of personal data are collected -- and never forgotten.

The proposed French law addresses real concerns that the Internet – which, unlike individuals or communities, never forgets – poses a threat to users who may find themselves struggling with the perpetual online presence of their past actions. The BBC article quotes Professor Frau-Meigs of the Sorbonne, who observes that “People and young people need to be protected by the State so that there is fairness in the way this protection is established”. Canada's Privacy Commissioner, Jennifer Stoddard, has also noted that young people in particular are perhaps ill-equipped to fully appreciate the consequences of their online behaviour and are at risk of having their Internet presence haunt them in their future lives (I wrote about the Office of the Privacy Commissioner's last annual report ). It's easy to find stories about people being harmed by the persistence of online data. In BC, for example, a after some of his Facebook photos became public. Here in Ottawa, a local grocery chain over online discussions. For many more examples, just do a search for “Facebook fired” or getting “dooced” (named after popular blogger Heather Armstrong, aka, who was fired for comments made on her blog).

I think it's important to keep in mind that examples like these are really just the very tip of the iceberg. Most people today have been online for ten or fifteen years at the most (, often cited as the first web browser, was released in 1993), and the ubiquity of social networking is more recent than even that. What will a discussion like this sound like in another ten or twenty years, when there will be a generation of adults whose entire lives were documented online?

Within the European context a law of the sort proposed by France is not totally novel. For example, Germany's “right to personality”, which allows, amongst other things, for released criminals to prevent the publication of their name in association with the crime for which they were convicted, forms the basis for a current lawsuit against Wikipedia (the NY Times writes about the case; an examination of the German constitutional basis of this law can be found in: Paul Schwartz, “The Computer in German and American Constitutional Law: Towards an American Right of Informational Self-Determination” (1989) 37 American Journal of Comparative Law 675 – sorry, no publicly available link).

While the Internet may route around censorship, I think it is also clear by now that this doesn't mean that laws are irrelevant to the Internet. Although legislation of the sort contemplated by France likely cannot do anything to prevent someone from saving a copy of someone else's embarrassing photograph and spreading it themselves, it could certainly affect the privacy and data-retention policies of larger publications. Returning to the German example discussed above, for example, there is little that can be done about people spreading the convicted murderer's name in e-mails or instant messages, but publication of the name in major media can certainly be stopped.

While the reasons for the perceived need for laws regulating online memory may be clear enough, care will be needed in drafting any such legislation to prevent overly invasive protectionary measures. that there is already an established industry in Search Engine Optimization (SEO), and one of their services is “burying” information a client may want forgotten so that it only turns up deep in any search results. In his article Morozov observes that one such company, Reputation Squad, is quoted in the BBC article, and that laws such as that proposed by France could end up effectively subsidizing their business. I would further add that laws such as this could become weapons in the arsenal of large organizations to stifle criticism. The BBC article quotes another SEO expert who describes how his company deals with “negative buzz” from bloggers: “If they don't instantly remove the litigious items, and there's always a hardcore who refuse to budge, then we have to, shall we say, insist a little harder”. If any “right to forget” legislation bleeds over into the territory of defamation law, it could pose a threat to online free speech.

Additionally, I think the proposed French law also raises some very interesting questions about the relationship between privacy, memory, and identity – and how we, as societies and governments, are grappling with new technological realities. Here I am deeply indebted to Professor Ian Kerr. For example, in an article written with Professor Jane Bailey, “Seizing Control? The Experience of Capture Experiments of Ringley & Mann” (available from Kerr's website), the authors discuss the idea of CARPE technology – Continuous Archival and Retrieval of Personal Experiences. Technologist Steve Mann has given life to his idea of inverse surveillance or “” through his Eyetap technology – devices which record absolutely everything he sees. Furthermore, memory – of both the individual and the collective – is a central means through which we imagine ourselves and our place in society. Privacy, memory, and identity are all deeply linked, and the persistence of digital data challenges these deeply held relationships. The proposed French law can be seen as an effort to grapple with these changes. (For those interested in this sort of angle, I would highly recommend , an interdisciplinary approach to privacy law led by Ian Kerr.�� The book is available under a Creative Commons license and can be downloaded from the link.)

While CARPE-like technology represents an extreme end of the information-gathering spectrum, it is clear enough that more and more of our personal information is ending up online, often stored somewhere in the cloud. Left purely to technological and market forces, this trend is unlikely to reverse itself. In this context, battles over who has the right to hit the delete key will undoubtedly become more fierce.

��

The post France and the Right to Forget appeared first on IPOsgoode.

The French Constitutional Court held that the "Creation and Internet" law - the law promoted by the Olivennes Commission and strictly supported by the President Sarkozy - is unconstitutional.

This Act - whose complete name is "Loi favorisant la diffusion et la protection de la création sur Internet" - had instituted a special authority which was empowered to monitor copyright infringements committed by internet users.

The institution formed by the law (HADOPI: Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet - High Authority of Diffusion of the Art Works and Protection of the Rights on Internet) was entitled to use a special enforcement method in order to combat copyright violations. This method was based on the so-called "three-strikes" procedure. The HADOPI, once informed by a copyright holder of a potential violation, was expected to send an e-mail to the internet user, as identified by his IP (internet protocol address). After this notification, the user would be invited to install a filter on his PC and be monitored by his internet service provider. The second step would be introduced by a certified e-mail, after accusation of repeated offences or of failure to comply with the provisions set out in the first e-mail.

The third phase involved HADOPI's power to request ISPs to suspend internet connections for infringing users for 2 months to 1 year.

It is remarkable that the French law did not provide a judicial recourse for the first 2 steps of the procedure, but only for the last one (which however couldn't be stopped during the trial).�� After its approval, the Act has been strongly criticized by scholars, by consumer associations, as well as by the European Parliament.

The Constitutional Court considered the law unconstitutional for the following reasons:

a) article 11 of the Déclaration des droits de l'homme et du citoyen of 1789 protects freedom of speech and recognizes it as a fundamental right; access to an internet connection can be considered a human right, as an expression of the freedom of speech;

b) only a judge - or rather a judicial decision - can order the disconnection of users, not a non-judicial authority;

c) French law is based on the presumption of innocence. On the contrary, users are punished with disconnection based only on whether copyright holders assume that they could be liable;

d) the Act provides a procedure which violates data protection law and users' personal rights.

The post The HADOPI law held unconstitutional by the French Constitutional Court appeared first on IPOsgoode.