An eDate and a patch on the bottom

Wishing profoundly that he had been able to master any modern European language other than his own, ths member of tytoc collie team draws the attention of his readers to Affaires C‑509/09 et C‑161/10 eDate Advertising GmbH v X and Olivier Martinez et Robert Martinez  v Société MGN Limited.  The Advocate General of the Court of Justice of the European Union gave his Opinion this morning and the Kat thinks he might be sniffing at something with some degree of IP significance, since the words "copyright", "information", "right of personality" and "reputation" crop up.  The AG recommends the Court to rule that

«1) L’expression ‘lieu où le fait dommageable s’est produit ou risque de se produire’, utilisée à l’article 5, point 3, du règlement 44/2001 du Conseil, du 22 décembre 2000, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprétée, en cas d’atteinte à des droits de la personnalité par le biais d’informations diffusées dans plusieurs États membres par l’intermédiaire d’Internet, en ce sens que le titulaire du droit de la personnalité peut engager une action en dommages et intérêts

– devant les juridictions de l’État membre du lieu d’établissement de l’éditeur de la publication ayant porté atteinte aux droits de la personnalité, qui sont compétentes pour réparer la totalité des dommages découlant de l’atteinte auxdits droits, ou bien

– devant les juridictions de tout État membre dans lequel la publication a été diffusée et dans lequel le titulaire du droit de la personnalité affirme avoir subi une atteinte à sa réputation, qui sont compétentes pour connaître uniquement des dommages causés dans l’État membre de la juridiction saisie, ou bien

– devant les juridictions de l’État membre dans lequel est situé le ‘centre de gravité du conflit’ entre les biens et intérêts en jeu, qui sont ainsi compétentes pour réparer la totalité des dommages découlant de l’atteinte aux droits de la personnalité. On entend par ‘État membre dans lequel est situé le “centre de gravité du conflit”‘celui sur le territoire duquel l’information litigieuse est objectivement et particulièrement pertinente et où le titulaire du droit de la personnalité a également le ‘centre de ses intérêts’.

2) L’article 3 de la directive 2000/31/CE du Parlement européen et du Conseil, du 8 juin 2000, relative à certains aspects juridiques des services de la société de l’information, et notamment du commerce électronique, dans le marché intérieur doit être interprété en ce sens qu’il n’impose pas une règle de conflit de lois ni un «correctif sur le fond». Ladite disposition concrétise l’harmonisation législative de la libre prestation de services appliquée au commerce électronique, en autorisant en même temps les États membres, dans le cadre de la marge d’appréciation que leur confère ladite directive, ainsi que l’article 56 TFUE, à prévoir des mesures de protection des intérêts dignes d’une garantie spéciale, à titre d’exception à la libre prestation de services.».

This translates mechanically into

""(1) The term 'place where the harmful event occurred or may occur', as used in Article 5(3) of Regulation 44/2001 of 22 December 2000 , on jurisdiction, recognition and enforcement of judgments in civil and commercial matters must be interpreted, in case of infringement of personal rights through information disseminated in several Member States through Internet, in that the holder of the personality right may bring an action for damages

- The courts of the Member State governing the establishment of the publisher of the publication having violated the rights of personality, which are responsible for repairing all damages resulting from the breach those rights, or

- The courts of any Member State in which the publication was distributed and in which the holder the right personality says he suffered injury to his reputation, which have jurisdiction only damage in the Member State of court, or

- The courts of the Member State in which lies the "center of gravity of the conflict 'between the property and interests, which are thus responsible for repairing all damages resulting from the infringement of personality. Means the Member State in which lies the "center of gravity of the conflict", the one in which the information at issue is particularly relevant and objectively and where the copyright owner's personality also has the 'center of his interests '.

(2) Article 3 of Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 on certain legal aspects of information society, in particular electronic commerce, in the market procedure should be interpreted as meaning that it does not impose a rule of conflict of laws or a "patch on the bottom." [whose bottom, Merpel wonders? Her copy of the E-Commerce Directive makes no reference to backsides at all ...] That provision embodies the legislative harmonization of free services applied to electronic commerce, in the same time allowing the Member States, within the discretion conferred upon them by the Directive and Article 56 TFEU to provide measures to protect the interests worthy of a special guarantee, as an exception to the free provision of services".

Can some kind reader be of assistance?

Remuneration and recording media: someone has to pay -- but how?

Thursdays seem popular for delivering Advocate Generals' Opinions on intellectual property matters, and today -- having dealt a firm blow to the prospect of patenting of human stem cells -- Europe's Finest are now advising the Court of Justice on copyright too. Thus we find ourselves looking at the Opinion of Advocate General Niilo Jääskinen in Case C‑462/09 Stichting de Thuiskopie v Mijndert van der Lee, Hananja van der Lee and Opus Supplies Deutschland GmbH, this being a reference for a preliminary ruling from the Hoge Raad der Nederlanden (visit the 1709 Blog here for some interesting background material).

What's this all about? In short, Opus, a German company, sold blank recording media via, inter alia, (i) Dutch-language websites and (ii) non-Dutch websites aimed at the Netherlands. Its general terms of business stated that orders were placed with Opus in Germany, that its prices did not include any Levy, Auvibel, Thuiskopie, GEMA or other charges. All products purchased were dispatched by order of the customer and in the customer's name, so that the customer and not Opus was the importer. Unsurprisingly Opus's prices were generally cheaper than others since they did not include any remuneration levy.

Dutch copyright society Thuiskopie sued Opus and two local directors, hoping to get these cheap, unlevied recording media wiped out and asking for interim relief. The trial judge and, on appeal, the Gerechtshof, would have nothing of it and dismissed their application, whereupon Thuiskopie brought an appeal in cassation to the Hoge Raad der Nederlanden.  That court considered that, under Opus's contract, the delivery took place upon the transfer of possession (i.e. in Germany). Since Dutch legislation states that the importer is responsible for paying the fair compensation, the obligation in this case is placed on the Dutch customer, not on Opus. However, staying the appeal, the Hoge Raad wanted to know whether Directive 2001/29 (on the Information Society) requires the term ‘importer’ used in national legislation to be interpreted in a manner contrary to its normal meaning and asked:

‘(1) Does [Directive 2001/29], in particular Article 5(2)(b) and (5) thereof, provide any assistance in determining who should be regarded under national law as owing the “fair compensation” referred to in Article 5(2)(b)? If so, what assistance does it provide?

(2) In a case of distance selling in which the buyer is established in a different Member State to that of the seller, does Article 5(5) of [Directive 2001/29] require national law to be interpreted so broadly that a person owing the “fair compensation” referred to in Article 5(2)(b) of the directive who is acting on a commercial basis owes such compensation in at least one of the Member States involved in the distance selling?’

This morning, rolling the two questions into a single answer, the Advocate General advised:

"Articles 5(2)(b) and 5(5) of Directive 2001/29 ... do not impose on the Member States a single solution as to how the payment of fair compensation to the rightholders is ensured in the case where the Member State has availed itself of the option to allow for private copying of copyright protected works and other protected subject-matter. These provisions do exclude any interpretation of the relevant national legislation that does not ensure effective payment of such fair compensation by a distant seller of media for reproducing such works or other protected subject-matter that targets customers in that Member State unless the seller has already paid comparable compensation in the Member State where the transaction takes place".

It's not clear to tytoc collie where the ruling, if followed by the Court of Justice, would leave the litigants -- or indeed the Dutch government.  What is however clear is that there is an apparent lack of congruence between   the law of contract and the obligation to require the payment of fair compensation.  Given that the Opuses of this world have the potential to sell recordable media from any one of the EU Member States to purchasers in another EU Member State, a single legislated solution would appear to offer a better chance of creating and preserving a level playing field within the  single European market than would any country-by-country patchwork of solutions.

Merpel adds, I'd hoped to discover some deep and meaningful truths about the "three step test", but there's not much here -- other than to say that it must be observed and that (at para.62) "the three-step test does not, in my view, require that fair compensation is paid by all companies engaged in cross-border distance selling of reproduction media between the Member States, but merely by companies that are targeting the Member State’s consumers in question" -- i.e. who pays, not how or how much.

Brüstling with indignation, but definitely feeling totipotent

Totipotent eggs don't have it
all their own way ...

Today's the day the Kat has been waiting for since 2009, when he first discovered the battle between Brüstle and Greenpeace concerning the legality of human stem cell patents (click here for Mark Schweizer's piece on this very weblog on the decision of the German Bundesgerichtshof to refer these questions to a court higher, though less IP-savvy, than itself). To refresh the memories of readers who are too weary to press the hyperlink, the Court of Justice was asked  in Case C-34/10 to rule on the following questions:

"1. What is meant by the term 'human embryos' in Article 6(2)(c) of Directive 98/44/EC [on the Legal Protection of Biotechnological Inventions]?

(a) Does it include all stages of the development of human life, beginning with the fertilisation of the ovum, or must further requirements, such as the attainment of a certain stage of development, be satisfied?

(b) Are the following organisms also included:

1. unfertilised human ova into which a cell nucleus from a mature human cell has been transplanted;

2. unfertilised human ova whose division and further development have been stimulated by parthenogenesis?

(c) Are stem cells obtained from human embryos at the blastocyst stage also included?

2. What is meant by the expression 'uses of human embryos for industrial or commercial purposes'? Does it include any commercial exploitation within the meaning of Article 6(1) of the Directive, especially use for the purposes of scientific research?

3. Is technical teaching to be considered unpatentable pursuant to Article 6(2)(c) of the Directive even if the use of human embryos does not form part of the technical teaching claimed with the patent, but is a necessary precondition for the application of that teaching,

(a) because the patent concerns a product whose production necessitates the prior destruction of human embryos,

(b) or because the patent concerns a process for which such a product is needed as base material?".

Today Curia has published the Opinion of Advocate General Bot in ten official languages of the European Union, but regrettably not in English. According to Google Translate (French to English), the Opinion advises as follows:

"Article 6, paragraph 2 c) of Directive 98/44 ... should be interpreted as follows:

- The concept applies to human embryo at the stage of conception to initial totipotent cells and the whole process of development and body composition that results. This is so, including the blastocyst.

- The unfertilized eggs, which was established the nucleus of a mature human cell or were induced to divide and develop by parthenogenesis, also fall under the concept of human embryo in that the use of these techniques result in obtaining totipotent cells.

- Individually, pluripotent embryonic stem cells because they have not, by themselves, the ability to develop into a human being, do not fall within that concept.

- An invention must be excluded from patentability if the implementation of the technical process submitted to the patent requires, first, whether the destruction of human embryos or their use as starting material, even if the description of this process does no reference to the use of human embryos.

- The exception to the prohibition of patenting of uses of human embryos for industrial or commercial concerns only inventions for therapeutic or diagnostic target that apply to the human embryo and are useful".

The Latvia-to-English translation, however is differently nuanced:

""...- The term "human embryo" applies to the totipotent pirmšūnām conceived in the moment, as well as the entire human body and the development process, that it follows. This is especially true of the blastocyst.

- Unfertilized eggs are implanted into mature human cell nucleus or which are shared or develops partenoģenēzes way, also includes the concept of human embryos, the extent of these techniques result in the accrual of totipotent cells.

- Separately, pluripotent embryonic stem cells, since they alone can not develop as individuals, this shall not include.

- The invention is not patentable patentable if the technical implementation of the procedure initially is required for either the destruction of human embryos or their use of raw materials, even if this description of the process contains no reference to human embryos.

- Embryos for industrial or commercial use exception to the prohibition of patenting inventions for therapeutic or diagnostic only for purposes applicable to the human embryo and are useful ".

You have been warned.

The Curia has fortunately issued a press release in English -- but not Latvian -- in which it states as follows (this is a non-official explanation of a non-binding Opinion):

According to Advocate General M. Yves Bot, totipotent cells carrying within them the capacity to evolve into a complete human being must be legally classified as human embryos and must therefore be excluded from patentability 

Nor can a procedure using other embryonic stem cells, known as pluripotent cells, be patented where it first requires the destruction or modification of the embryo  

Mr Oliver  Brüstle holds a patent, filed in December 1997, which concerns isolated and purified neural precursor cells,  produced from human  embryonic stem cells used for the treatment of neural defects.  According to information provided by Mr Brüstle, the first clinical applications have already been developed, in particular for patients suffering from Parkinson’s disease. On the application of Greenpeace eV, the Bundespatentgericht ... declared Mr Brüstle's patent invalid, in so far as it related to procedures allowing precursor cells to be obtained from human embryonic stem cells. The Bundesgerichtshof ... decided to stay [appeal] proceedings and refer questions to the Court of  Justice on the interpretation, in particular, of the term  "human embryo", which is left undefined by Council Directive 98/44 ...

The questions concern, essentially, whether the exclusion of the human embryo from patentability concerns all stages of life from the fertilisation of the ovum or whether other conditions must be satisfied, such as the attainment of a certain stage of development.  

As a preliminary, the Advocate General ... makes the point that the Court is being called upon for the first time to consider the concept of ‘use of embryos for industrial or commercial purposes’ contained in Directive 98/44.  Having stated at the outset his awareness of the extreme sensitivity of that question and the importance of the philosophical, moral, human, economic and financial issues at stake, the Advocate General begins his legal analysis by stating that, since the directive pursues the  objective of establishing effective  and harmonised legal protection of biotechnological  inventions, the embryo needs to be given an autonomous definition in EU law.  That analysis is supported by the first interpretations by the Court in its case-law concerning that directive.  

After pointing out the major divergences existing between the legislation of the Member States and the impossibility, in the current state of scientific knowledge, of using a criterion of that nature capable of being recognised by all the Member States, the Advocate General fixes upon the wording of the directive, which, in Article 5(1), protects ‘the human body, at the various stages of its formation and development'. 

He then observes that totipotent cells, appearing after fusion of the gametes and existing in that form only for the first days of development, have the essential characteristic of carrying within each of them the capacity to develop into a complete human being.  Thus those cells, since they represent the first stage of the human body which they will  become must be legally classified as embryos, the patentability of which must be excluded.  This definition therefore covers unfertilised ova into which a cell nucleus from a  mature cell has been transplanted  and unfertilised ova whose division has been stimulated by parthenogenesis in so far as totipotent cells would be obtained in those ways.  

Similarly, the blastocyst stage of development, reached around five days after fertilisation, must also be classified as an embryo, since, according to the Advocate General, the principle of human dignity, to which the directive refers, is a principle which must be applied not only to an existing human person, to a child who has been born, but also to the human body from the first stage in its development, i.e. from fertilisation. By contrast, pluripotent embryonic stem cells,  taken in isolation, do not  fall within the definition of an embryo, since, individually, they are no longer capable of developing into a complete human being.  They can 'only' differentiate themselves into various organs forming parts of the human body.  It is those cells which are  concerned by the invention concerned by Mr Brüstle's patent, their removal from the embryo taking place at the blastocyst stage.  

However, it is not possible to ignore the origin  of these embryonic stem cells. The fact that they come from some stage in the development of the human body is not in itself a problem, provided only that their removal does not result in the destruction of that human body at the stage of its development at which the removal is carried out.  In the opinion of the Advocate General, it must therefore be agreed that inventions relating to pluripotent stem cells can be patentable only if they are not obtained to the detriment of an embryo, be that it's destruction or its modification. To make an industrial  application of an invention using embryonic stem cells would amount to using human embryos as a simple base material, which would be contrary to ethics and public policy.  

In conclusion, the Advocate General considers that an invention cannot be patentable where the application of the technical process for which the patent is filed necessitates the prior destruction of human embryos or their use as base material, even if the description of that process does  not contain any reference to the use of human embryos. The Advocate General observes, however, that the patentability of uses of human embryos for industrial or commercial purposes is not prohibited under the directive where it  concerns only inventions for therapeutic or diagnostic purposes which are applied to the human embryo and are useful to it – for example to correct a malformation and improve its chances of survival.                                                 

Note: in March 2010, the UK's Intellectual Property Office gave interested parties a ludicrously short FIVE DAYS to make their comments, ahead of an Opinion which has been published exactly one year to the day since their comments were sought. The Kat insists that we can all do better, giving more time to interested parties to think about what they are going to say as well as getting it typed up, generally beautified and checked for umlauts.