1、Grow|Protect|Operate|FinanceMarch 2024Top 10 IP&TMT CJEU judgements of 20232 Top 10 IP&TMT CJEU judgements of 20232 Top 10 IP&TMT CJEU judgements of 2023Karol LaskowskiEurope Co-head of Technology,Media and TelecommunicationsThe Court of Justice of the European Union(“CJEU”)and its judgments play a

2、pivotal role in harmonizing the legal principles of EU member states.Thus,for the fourth time,we present our bit-sized and curated guide to the most impactful CJEU judgments of the past year,each distinguished by its far-reaching implications and precedent-setting nature.Theyear 2023has witnessed wa

3、tershed decisions that have not only shaped legal landscapes but also significantly influenced the socio-economic fabric of the data protection,intellectual property and technology domains.Chief among the list this year was the ruling in the sterreichische Post case,which,on the subject of using Ger

4、man citizens data to determine their political preferences,provided clarity on the criteria for compensation and emphasized the need to establish actual damage in compensation claims.In addition,the judges detailed the conditions under which individuals can seek compensation for violations ofGDPR,in

5、cluding for non-materialdamage.The other podium spots went consecutively to the rulings of Google Ireland and others as well as Lnnen MCE.The runner-up ruling affirmed the country-of-origin principle,stating that a member state cannot impose general and abstract obligations on acommunications platfo

6、rm provider based in another member state.The latter recalls giving guidance to businesses to protect themselves from unexpected lawsuits from jurisdictions that are not their target,especially in the context of usingGoogleAds.The remaining decisions which we delved into,featured privacy themes rang

7、ing from the basis of data processing in personalized advertising in social media and the legality of scoring in financial institutions to the scope of the right to access data.With the upcoming revamp of EU design law,wewould also like to draw your attention to a judgment addressing the question of

8、 whether elements of acomplex product,such as the underside of a saddle,that are invisible in normal use,can be protected as a design.Simultaneously,copyright subjects were significantly affected by the judges consideration of issues such as whether the mere installation of asound system in the cour

9、se of a business gives rise to an obligation to pay remuneration,and whether themere provision of access to satellite signals,without actual control over the content or its introduction into the communications chain,does not constitute“communication to the public by satellite”,and which entities can

10、 claim fair compensation for private copying from collectingsocieties.Answers and details on these questions will be found in the following pages of this legal brochure unfolding substantial points for entrepreneurs offering services to the information society and,at the same time,offering practitio

11、ners and stakeholders a nuanced understanding of the evolving legal precedents,through commentaries by experienced professionals from the IPTC practice of Dentons Warsaw office.Introduction Top 10 IP&TMT CJEU judgements of 2023 3BackgroundThe Austrian Post,sterreichische Post,has been collecting inf

12、ormation on the political preferences of the Austrian population since 2017.An algorithm,taking into account various social and demographic criteria,allowed it to identify“target group addresses”.The data thus collected led the administrator to determine that a particular citizen had a high preferen

13、ce for a particular Austrian political party.However,the processed data was not passed on to third parties.One data subject claimed that he suffered damage to his reputation,as well as public exposure and confidence loss after data processing conducted by sterreichische Post which determined potenti

14、al political affinities.As the processing was carried out without the data subjects express consent,he claimed compensation for internal discomfort.The Austrian Supreme Court expressed doubts about the scope of the right to compensation that the EU General Data Protection Regulation(“GDPR”)provides

15、for in the event of material or non-material damage due to a violation of the regulation.That referral court asked the Court whether a mere violation of the GDPR is sufficient to confer this right,and whether compensation is only possible if a certain threshold of the severity of the non-pecuniary d

16、amage suffered is exceeded.JudgmentThe CJEU has detailed the conditions under which individuals can seek compensation for violations of the GDPR.The case involving Austrian Posts processing of data related to political affiliations without consent involved key aspects of the right to compensation un

17、der Article 82 of the GDPR.The Court clarified that any violation of the GDPRs provisions,in and of itself,does not give rise to a right to compensation,because a violation of the GDPR does not necessarily lead to damages.In order to establish its existence,three conditions must be met together:a vi

18、olation of the GDPR,material or non-material damage resulting from the violation,and a causal link between the damage and the violation.The ruling rejected the imposition of a“seriousness”threshold for non-material damage,ensuring a uniform interpretation of the GDPR in all member states.The ruling

19、provided clarity on the criteria for compensation and emphasized the need to establish actual damage in compensation claims.In addition,the Court clarified that compensation amounts should be guided by applicable national laws,ensuring consistency with the EU legal framework.The Court pointed that i

20、t is therefore up to the legal order of each member state to determine the rules aimed at ensuring that legal entities protect their rights under the GDPR and the criteria for determining the extent of compensation due under that framework,subject to respect for the principles of equivalence and eff

21、ectiveness.sterreichische Post4 May 2023 C-300/21#gdpr#compensation#nonmaterialdamage 14 Top 10 IP&TMT CJEU judgements of 2023Experts commentsAleksandra DanielewiczThe CJEUs judgment in the Austrian Post case clarifies(1)the conditions for seeking compensation under the GDPR,particularly regarding v

22、iolations related to processing sensitive political data,and(2)the importance of adhering to strict data protection standards and obtaining explicit consent for such processing activities.For companies operating within the EU,this decision highlights the necessity of conducting thorough impact asses

23、sments and implementing robust data protection measures to mitigate the risk of potential liabilities.Additionally,judges highlighted the importance of the EU Directive 2020/1828 which aims to facilitate class action-style litigations for data protection breaches.This ruling is likely to lead to an

24、increase in claims,as privacy groups welcome the broader scope for seeking redress.However,it also raises concerns about the potential exploitation of compensation claims by organizations seeking financial gain.Paulina WgrzynowiczThe Courts ruling in Case C-300/21 significantly sets a precedent for

25、compensation claims arising from data protection violations under the GDPR.By emphasizing that a mere violation of the GDPR does not automatically entitle individuals to compensation,the Court ensures that claims must demonstrate actual harm.Judges outlined the clear criteria that provide guidance f

26、or individuals whose data privacy rights were violated.However,the judgment also underscores the importance of individual member states legal systems in determining compensation criteria,ensuring compliance with EU principles while accommodating local differences.Ultimately,this prejudication highli

27、ghts the ongoing evolution of data protection law in Europe and the delicate balance between harmonization and national autonomy.Top 10 IP&TMT CJEU judgements of 2023 5Google Ireland and others 9 November 2023 C-376/22#socialmedia#platformprovider#relevantlaw 2BackgroundThe case concerns the actions

28、 of Austrias communications regulator,Kommunikationsbehrde Austria(“Komm Austria”),which can impose fines for violations based on Austrias Kommunikationsplattformen-Gesetz.It obliges domestic and foreign providers of online platforms in particular to establish a notification and control procedure fo

29、r illegal content,to compile and publish regular transparency reports on the handling of relevant notifications,and to appoint responsible representatives and agents for service.Komm Austria concluded that platforms such as Google,Facebook,Instagram and TikTok should be subject to Austrian legislati

30、on,despite being registered in Ireland.The online platform providers in question objected to these obligations and filed a complaint with the court.The corporations invoked the principle of freedom of movement of information services and the country of origin.In their view,nowhere outside Ireland(wh

31、ere they have European headquarters)can general obligations be imposed on them that go beyond Irish legislation.As a result of their revision appeals,the case went to the Austrian Administrative Court,which raised doubts about the compatibility of Austrian law applied in the case with EU law.Judgmen

32、tIn a watershed decision with implications for digital platforms,the CJEU ruled in favor of major technology companies,including Google and Meta Platforms,challenging Austrias law on illegal content.The ruling affirmed the country-of-origin principle,stating that a member state cannot impose general

33、 and abstract obligations on a communications platform provider based in another member state.According to the CJEU,the possibility that these member states could adopt such general and abstract obligations would undermine the principle of control in the member state of origin of the service in ques

34、tion,on which the directive is based.If the member state of destination(in this case,Austria)were authorized to adopt such measures,this would constitute interference with the regulatory competence of the member state of origin(in this case,Ireland)In addition,it would undermine mutual trust between

35、 member states and run counter to the principle of mutual recognition.Moreover,the platforms in question would be subject to different regulations,which would also violate the freedom to provide services and thus the proper functioning of the internal market.The ruling gained additional significance

36、 in the context of the European Unions recently enacted Digital Services Act,indicating a key moment in shaping the regulatory landscape for the EUs major technology players.The Court stressed the importance of consistency in the application of EU law to information society services,thereby setting

37、a precedent with implications for the legal framework governing technology companies.6 Top 10 IP&TMT CJEU judgements of 2023Experts commentsPawe Gruszecki The Courts rationale is a fervent reminder of the significance of the“country of origin”principle.The CJEU timely clarified the scope of the limi

38、ted exception,according to which Member States may target certain measures at online platforms registered in other Member States to some extent only as they cannot impose general obligations on a communications platform provider based in another member state.Decision in question is highly material f

39、or the Irish outlook,as many of the major online platforms within Europe are headquartered in Ireland:the majority of the 17 very large online platforms(VLOPs)and 2 very large online search engines(VLOSEs)recently appointed by the European Commission under the Digital Services Act.The ruling is also

40、 significant in that it calls into question any national regulations on service providers that enforce their jurisdiction regardless of the providers seat,and does not ease the already difficult dilemma of providing an effective mechanism for notice and takedown/notice and take action procedures.Mar

41、cin Przybysz The decision of the CJEU highlights that the leading online platforms and search engines are chiefly governed by Irish law and are under the authority of the Irish regulators.Although the EU institutions had been encouraged to harmonise the EU legal framework for digital services with t

42、he adoption of the Digital Service Act,the fairly recent,albeit sometimes contradictory,national rules were bound to contribute to legal uncertainty of the high altitude.Judges have correctly recognised that the exception to the“country of origin”rule under Article 3(4)of the Directive 2000/31 does

43、not allow the above-mentioned national content moderation provisions to apply to service providers located in other countries.This is required to ensure the free movement of services across Europe and the attractiveness of the EU internal market,and may also ensure protection and legal certainty in

44、the context of national drafts of statutes which may e.g.raise concerns as to envisaging politically motivated obligations,such as the draft bill on the protection of freedom of speech in social media proposed by the previous government that has recently been ousted from power in Poland.Top 10 IP&TM

45、T CJEU judgements of 2023 7Lnnen MCE 27 April 2023 C-104/22#onlineinfringement#IPenforcement#digitalenforcement 3BackgroundA subsequent case resulted in a milestone trademark infringement ruling with major implications for the jurisdiction and territorial scope of European Union law.The plaintiff,th

46、e Finnish company Lnnen MCE Oy(“Lnnen”),produces and distributes amphibious dredges under EU trademark no.3185758“WATERMASTER”.Defendants Berky GmbH(“Berky”)and Senwatec GmbH&Co.KG(“Senwatec”)are located in Germany and belong to the same group of companies.Lnnen alleged that Senwatec infringed its E

47、U trademark in Google Ads on google.fi because the following ad title surfaced when a user with a Finnish IP address searched for“watermaster”on google.fi:“Watermaster-multifunctional amphibious dredgers-senwatec.de”.Lnnen brought a suit against Berky and Senwatec in a Finnish court,alleging that th

48、e infringing actions through the use of the mark in online advertising took place in Finland,and therefore based international jurisdiction on Article 125(5)of the Regulation on the European Union trademark(“EUTMR”).The defendants challenged the international jurisdiction of the Finnish court,arguin

49、g that they neither target the Finnish market nor sell their products in Finland.The Finnish court has referred questions to the CJEU,essentially asking for guidance on whether it has international jurisdiction in the circumstances described above.The Court had to determine whether an online adverti

50、sement placed by a foreign company headquartered and operating in another country,can be considered to be directed at Internet users in general,meaning that it is not limited to a specific territory,especially if such territory is not indicated in the advertisement itself.JudgmentThe CJEU held that

51、paying for Google ads on google.fi,which are linked to the Senwatec website,is a sufficient connecting factor for the jurisdiction of the Finnish courts.Separating the determination of jurisdiction from the merits of the action,the CJEU acknowledged that evidence giving rise to a reasonable presumpt

52、ion that an infringement or threatened infringement may have occurred in the territory of a member state is sufficient to confer jurisdiction under 125(5)EUTMR.This provision requires active conduct by the defendant linking it to a specific member state.Infringements by way of online advertising and

53、 online product offers are committed where the consumers to whom the ads and offers are addressed are located.Courts in such member states have particular jurisdiction to assess whether an infringement has occurred.Article 17(1)(c)of the Brussels I Regulation was found to be particularly relevant to

54、 the interpretation of Article 125(5)of the EUTMR.The Court listed the following non-exhaustive list of indications from the Pammer and Hotel Alpenhof judgment(C-585/08)on Article 17(1)(c)of the Brussels I Regulation that are relevant to assessing whether an activity is directed to a particular EU m

55、ember state:(1)the international nature of the business;(2)the payment of the web referral service to facilitate access to the companys website(e.g.,Google Ads);(3)the mention of an international clientele consisting of customers residing in different member states.In addition,the CJEU stated that t

56、he nature of the products in question and the extent of the geographic market of the infringers business in individual cases may also play a role as in the present case.8 Top 10 IP&TMT CJEU judgements of 2023Experts commentsAleksandra Politaska-Kunicka The CJEUs landmark ruling in Lnnen MCE Oy v.Ber

57、ky and Senwatec clarifies the jurisdictional reach of EU trademark law in the context of online advertising.This decision is crucial for entities engaged in cross-border online activities,especially in the European Union.One must be even more vigilant about the fact that paying for Google ads linked

58、 to a specific member states domain is in the Courts view a substantial connecting factor for jurisdiction.Taking another step in the CJEUs delineation of the frontiers of legality in the cyber arena establishes reinforcement of the principle that infringements through online advertising are committ

59、ed where the targeted consumers are located.The CJEUs decision in question concerns not only the realm of digital marketing,but it also has implications for all entities targeting a multinational audience with their online advertising.Services enabling better positioning of their goods online,such a

60、s Google Ads,SEO and metatags,are an increasingly vital and challenging sector for twenty-first century businesses.Marta Stefanowicz The recent CJEU ruling in Case C-104/22 provides guidance to national EU trademark courts in defining the connecting factors for online EU trademark infringement cases

61、,thereby facilitating the determination of national jurisdiction.It clarifies that paying search engines with a national top-level domain(TLD),such as Google Ads on google.fi,is enough to establish jurisdiction in the targeted Member State.Importantly,even if the alleged infringer doesnt sell the ad

62、vertised goods in that targeted country,jurisdiction may still apply if national TLD ads are used on search engines.Furthermore,the court distinguished between paid referencing and natural referencing,particularly regarding the use of trademarks as metatags or keywords on platforms like F.While paid

63、 referencing targets specific member states,establishing a connection to national jurisdiction;natural referencing with metatags lacks such targeting,focusing instead on search engine optimization for image identification.The decision provides vital guidance on the longstanding issue of jurisdiction

64、al aspects in EUTM online infringement,stressing the importance of the target audience,especially pertinent in todays user-centric ecosystems.By clarifying the connecting factors,it eases the process for companies to establish connections with national jurisdictions,facilitating simplified IP enforc

65、ement in digital realms.Top 10 IP&TMT CJEU judgements of 2023 9Pankki 22 June 2023 C-579/21#privacy#datarequest#accessright 4BackgroundThe complainant JM,an employee and also a customer of the Finnish bank Suur Savon Osuuspankki(“Pankki”),who,during his work,accidentally acquired information that th

66、e latter was investigating him as to whether JM owed money to another customer,and therefore had a conflict of interest.Given this,JM requested that the bank inform him of the identity of the people who were reviewing his personal information.The identities could be verified by user logins.Pankki re

67、fused to provide the applicant with the requested login information,arguing in particular that it did not concern his personal data.Faced with the institutions refusal to provide him with this information,the applicant pursued the appropriate legal remedies and requested the Finnish Data Protection

68、Authority to order Pankki to provide him with the requested information,which also refused to grant the request.As a result,JM took legal action,challenging the authoritys decision.In particular,the national court raised doubts about whether the right to receive information about data recipients und

69、er Article 15(1)(c)of the GDPR covers the identity of the controllers employees performing operations on data belonging to the applicant and asked the CJEU to resolve the issue.JudgmentThe Courts ruling closely parallels the position of the Advocate General,establishing the broad right of access gra

70、nted by the GDPR and the far-reaching consequences thereof.According to the ruling,first and foremost,information regarding a persons personal data access operations,relating to the dates and purposes of those operations,constitutes information that the person has the right to obtain from the data c

71、ontroller under Article 15 of the GDPR,but access to other data can be requested under several conditions.The CJEU pointed out the restrictions on disclosure,emphasizing their necessity for the effective exercise of rights under the GDPR.Article 15 of the GDPR does not grant the right to obtain info

72、rmation about the identity of the controllers employees who have carried out operations on the data(they are not data recipients within the meaning of Article 4(9)of the GDPR).However,such a right may be granted provided that it is necessary for the exercise of the data subjects rights and provided

73、that the rights and freedoms of these employees are taken into account.This balancing act is extended to consider the rights and freedoms of others,ensuring that the right of access is used responsibly and does not unduly infringe the privacy and interests of third parties,including considerations o

74、f professional secrecy and protection of confidential information.In addition,the CJEU stressed that on the issue of timeframes,Article 15 of the GDPR applies when the processing operations to which a specific request relates were carried out before the date of application of the GDPR,but the reques

75、t was made after that date.10 Top 10 IP&TMT CJEU judgements of 2023Experts commentsAleksandra Danielewicz The ruling in question is another signpost for all entities responding to the request for data access clarifying the broad scope of the right from Article 15 of the GDPR,while marking the fundam

76、ental rights of others as a counterbalance.What is worth noting in Courts judgment is that even if the request reaches an organization of the regulated sector,the type of business conducted does not differentiate the scope of the right of access to data.However,it should be emphasized that under nat

77、ional legislation there may be a per se access right-external to the EU data protection regime with a varying scope as provided by the member state.Given the need to distinguish whether a request was made under the GDPR or other applicable legislation,organizations should regularly audit response pr

78、ocedures regarding individuals requests to provide them with actions compliant with European jurisprudence,of equal importance to EU legislature.Importantly,the CJEU highlighted the need for a careful balance between the data subjects right of access and the protection of the privacy and interests o

79、f third parties,including considerations of professional secrecy and confidential information.The judgment underscores the responsible use of the right of access,ensuring that it does not unduly infringe on the rights and freedoms of others.Jakub Kubit The recent judgment in the Pankki case develope

80、d further depths to the interpretation of Article 15 GDPR,and strengthens its internal consistency.Importantly,the ruling highlights the broad applicability of the subjects right of access,regardless of the type of organization or the status of the individual making the request.This has significant

81、implications for organizations operating in regulated industries,such as healthcare,where patient rights are protected by specific legislation.By acknowledging the complexities involved in deciding on data access requests,the decision underscores the importance of a nuanced approach towards the role

82、 of controllers and supervisory authorities.While broadly aligning with the Opinion of Advocate General Campos Snchez-Bordona,the Court diverged slightly on certain points,particularly regarding the balance between the data subjects right to access and the protection of employees rights.Top 10 IP&TM

83、T CJEU judgements of 2023 11Blue Air Aviation and UPFR 20 April 2023 Joined Cases C-775/21 and C-826/21#copyright#communicationtothepublic#airplane#train 5BackgroundA Romanian music collective rights management organization has sued the now-defunct Blue Air airline,demanding back payments and penalt

84、ies for making musical works available to the public on board planes.The airline pointed out that,after obtaining the relevant license,it had made only one song available on 14 of its airplanes in its fleet of 28 aircraft,only 22 of which had a sound system.The plaintiff argued that the mere existen

85、ce of a sound system was already sufficient to assume that copyrighted works were made available on board all 22 aircraft.Relying on similar argumentation,another organization for the collective management of related rights to phonograms similarly sued a railroad carrier,seeking payment of outstandi

86、ng salaries and penalties for making musical works available to the public on trains.The courts hearing the case referred preliminary questions to the CJEU regarding the scope of communication to the public:(1)whether“communication to the public”includes the broadcasting of songs as background music

87、 on public transportation and(2)whether“communication to the public”includes the mere installation of sound systems and related software in public transportation that can be used to play musical works as background music on board.JudgmentThe Court held that the concept of communication to the public

88、 includes broadcasting musical works as background music on airplanes and trains.The CJEU found that both the premise of the mere act of communication by intervening to make a protected work available to its customers,with full knowledge of the consequences of its behavior,was met.It also found that

89、 the premise of public character was also met by broadcasting background music during flights on half of Blue Airs airplanes to a group of passengers who were simultaneously or consecutively taking those flights.In the context of the second question,the Court stated that the notion of public communi

90、cation does not include the mere installation of sound systems that allow this background music to be played on board.The judges reiterated their distinction between an operator merely supplying the relevant technical systems,which,according to recital 27 of the Directive 2001/29/EC(“InfoSoc Directi

91、ve”),is not in itself an“act of communication”,and the actual installation of those systems-which may normally constitute an“act of communication”.The CJEU distinguished this situation from its decisions on other scenarios,such as pubs and hotels,in which service providers intentionally transmit pro

92、tected works to their customers by distributing television or radio signals from receivers installed in their premises.12 Top 10 IP&TMT CJEU judgements of 2023Experts commentsKarol Laskowski The Court of Justice continues to define the concept of“communication to the public”for the umpteenth time.Ha

93、ving considered a similar scenario in hotel rooms(C-306/05),rehabilitation centres(C 117/15)and dental waiting rooms(C-135/10),thus now the means of mass transport are called to the front.As is well known,the interpretation of this autonomous concept is the result of an individual and factual assess

94、ment of the case in question,but the conclusions of this judgment are valid for all entrepreneurs utilising either television or radio systems on site or in the course of their business.Importantly,the judges clarified the relevant function of the user facilitating access to copyrighted works.Within

95、 background hereof,judges rightly had no choice other than to consider the mere installation of devices enabling the communication of works as insufficient to give rise to copyright claims.Kamil Januszek The judgment in question deals with the broadcasting of background music in a means of passenger

96、 transport.At this time-in contrast to the rental of motor vehicles equipped with radio receivers(C-753/18,Stim and SAMI)-the judges considered that there was a communication of works to the public.However,they rightly safeguarded the participants economic interests by not creating a presumption tha

97、t mere broadcasting facilities could give rise to remuneration.From the commercial standpoint,the Court presented nothing but a logical approach.To some extent,it is a consistent and reasonably rational tactic of the Court to prevent individual member states from having their copyright holders obtai

98、n broader protection in respect of“communication to the public”.That level of balance between the interests of the rights holders(and in fact also the interests of the collecting societies themselves)and the interests of the different branches of the business in the internal market is eminently advi

99、sable.Top 10 IP&TMT CJEU judgements of 2023 13SCHUFA Holding 7 December 2023 C-634/21 as well as Joined Cases C-26/22 and C-64/22#gdpr#scoring#parallelretention6BackgroundAnother case arose out of a plethora of complaints filed with the administrative court in Wiesbaden,Germany,against the refusal o

100、f the competent data protection commissioner to take action against certain activities of SCHUFA Holding(“SCHUFA”),which is a private credit information bureau whose clients are,in particular,banks.The applicants objected firstly to the“scoring”process.This process is a mathematical statistical meth

101、od that makes it possible,based on probability,to determine future behavior,such as the future repayment of a loan by a customer,particularly of a financial institution.Secondly,their complaints related to the storage of information regarding the release of the remainder of the debt seized from publ

102、ic records.The information regarding the discharge of the remainder of the debt is stored in the German public bankruptcy register for six months,while the code of conduct of German credit information bureaus stipulates a retention period of three years for their own databases.The administrative cou

103、rt asked the Court of Justice to clarify the scope of the data protection provided by the GDPR.JudgmentThe Court of Justice of the European Union has ruled that while“scoring”is permitted only under certain conditions,the prolonged storage of information relating to the granting of relief from remai

104、ning debts is contrary to the GDPR.The CJEUs decision rejected SCHUFAs view that credit scoring does not constitute a decision-making process,since any adverse effects on the data subject result from independent decisions by the entity using the score.Instead,the Court took the position that creditw

105、orthiness calculations made by a credit agency count as automated decision-making under Article 22 of the GDPR if a third party“draws strongly on that score to establish,implement or terminate a contractual relationship”.This article prohibits the use of personal data for fully automated decision-ma

106、king that results in legal or“similarly significant”consequences for data subjects,unless the data subject consents to the automated processing or certain other conditions(including the need to perform a contract)are met.The CJEU tasked the referring court with determining whether German federal law

107、 contains an exception to the prohibition on automated processing that is compatible with the GDPR.If the referral court finds no exceptions,credit rating agencies in the EU will have to obtain the explicit consent of consumers before calculating their creditworthiness and provide consumers with the

108、 opportunity to object to a creditassessment.14 Top 10 IP&TMT CJEU judgements of 2023As for information on the discharge of outstanding debt,the Court found it contrary to the GDPR to keep such data longer than the public bankruptcy register,i.e.for more than six months.After this period,the data su

109、bject has the right to delete such data,and the bureau is obliged to delete it without undue delay.In addition,it is for the national court,weighing the relevant interests,to assess the legality of the parallel retention of the above data for a period of six months.If such retention is unlawful,the

110、data subject will have the right to object to the processing of his or her data and the right to erasure,unless SCHUFA demonstrates the existence of overriding legitimategrounds.Experts commentsPawe GruszeckiThe Courts judgment in Case C-634/21 marks a landmark shift in interpreting Article 22 of th

111、e GDPR,particularly concerning the role of automated decision-making and the responsibilities of the entities involved.By emphasizing the“determining role”of automated profiling and rejecting a narrow definition of automated decisions,the Court ensures greater protection for individuals rights and c

112、larifies responsibilities in decision-making involving multiple stakeholders.This decision underscores the need for transparency and accountability in automated profiling practices,urging providers like SCHUFA to uphold data subjects rights while requiring decision-makers,such as banks,to exercise d

113、iscretion rather than solely relying on algorithmic recommendations.Moreover,the rulings broader implications extend beyond the credit sector,impacting various industries that rely on score-based processes.It also prompts a broader reevaluation of score-based processes across industries,signaling a

114、shift towards greater accountability and compliance with GDPR principles.Paulina WgrzynowiczThe recent CJEU ruling on SCHUFA Holdings practices holds significant implications for credit information bureaus and financial institutions while it can also affect telecom or e-commerce companies operating

115、within the EU.Notably,judges clarified that credit scoring constitutes automated decision-making under GDPR,subject to specific conditions and requiring explicit consent from consumers.This decision imposes a heightened responsibility on businesses to obtain explicit consent for AI-driven assessment

116、s and allows consumers the right to object to such evaluations.It underscores the importance of aligning data processing practices with GDPR mandates,impacting the entire landscape of credit information management in the EU.Time will tell whether,in fact,this ruling will only have an economic and so

117、cial impact or a legal one as well.For now,businesses should reevaluate their AI-driven decision-making systems and make sure that any use of AI respects privacy.Top 10 IP&TMT CJEU judgements of 2023 15AKM and Canal+25 May 2023 C-290/21#IP#communicationtothepublic#satellite7BackgroundThe case involv

118、es Canal+Luxembourg Srl(“Canal+”),a television operator based in Luxembourg.The programs provided by Canal+are accessible not only in Luxembourg,but also in other EU member states,including Austria.Some of them were encoded and therefore payable,while other unencoded channels could be accessed for f

119、ree using a standard satellite TV set-top box.According to the Austrian collecting society for musical works(“AKM”),Canal+committed a serious infringement by failing to apply for a separate authorization for the use of content covered by intellectual property rights on Austrian territory.AKM filed a

120、 lawsuit in an Austrian court seeking to stop Canal+s continued broadcasting in Austria and an award of damages in its favor.The case reached its conclusion before the Austrian Supreme Court,which decided to refer a question to the Court of Justice for a preliminary ruling on the interpretation of D

121、irective 93/83,specifically Article 1(2)(b)thereof.According to this provision,communication to the public by satellite occurs only in a member state where the signals carrying the program are fed under the control and responsibility of the broadcasting organization into a closed transmission chain

122、leading to the satellite and back to Earth.JudgmentThe Courts comprehensive analysis delved into the nuances of the directive,clarifying the scope and conditions under which the provision of satellite packages falls within the scope of“communication to the public by satellite”.The ruling clarified t

123、hat the mere provision of access to satellite signals,without actual control over the content or its introduction into the communications chain,does not constitute“communication to the public by satellite”.The ruling emphasized the importance of the authorization granted by the member state where th

124、e signals are introduced,stressing the need for a holistic and contextual evaluation of the various elements.In essence,the Courts ruling in AKM v.Canal+provided a balanced interpretation of the directive in question,weighing the rights of copyright holders against the principles of free movement of

125、 services within the legal framework of the European Union.The Court stated that,as a general rule,an organization making legally protected works available to new audiences must obtain permission from the authors.Identical consent,however,does not have to be given in each of the member states to whi

126、ch the satellite signal reaches.On the other hand,in the context of remuneration for creators,all aspects of the broadcast,such as the actual and potential number of its audience,must be taken into account.Then,in the case of broadcasting to more than one country,the sum of remuneration for authors

127、of works should be proportionally higher.The situation is different when an intermediary is involved in the process of capturing and transmitting the signal to another country.The CJEU indicated that the authorization granted to the original broadcaster does not automatically extend to its counterpa

128、rties,who must apply for separate approval.16 Top 10 IP&TMT CJEU judgements of 2023Experts commentsKarol Laskowski The recent judgment in AKM v.Canal+holds particular significance for television operators like Canal+providing cross-border broadcasts within the EU.The ruling clarifies the nuanced con

129、ditions under which the provision of satellite packages falls within the scope of“communication to the public by satellite”.At the same time,judges emphasize that providing access to satellite signals alone,without control over content introduction into the communications chain,does not constitute“c

130、ommunication to the public”.Such a balanced interpretation aligns copyright holder rights with the EUs free movement of services principles.The ruling in question is pivotal for ensuring legal clarity in cross-border broadcasting operations within the EU.Kamil Januszek Bearing in mind the multinatio

131、nal and cross-border character of EU media companies,the ruling in question touched an issue of a grave importance for the European satellite broadcasting market.CJEU established guidelines for organizations making protected works available to new audiences,stressing the need for permission from aut

132、hors and proportional remuneration in multi-country broadcasts,thereby shaping the legal landscape for cross-border satellite transmissions in the European market by sticking to a so called Country of Origin Rule.The relevance of this issue to the system of rights management by national collecting s

133、ocieties should not be overlooked,although it is equally important for the TV broadcast providers as well.In attempt to not favour the use of one technology,the ruling ensures high-level of protection of right holders providing that authorization granted to the original broadcaster doesnt automatica

134、lly extend to affiliates,requiring separateapproval.Top 10 IP&TMT CJEU judgements of 2023 17Monz Handelsgesellschaft International 16 February 2023 C-472/21#designs#visibility#normaluse8BackgroundGerman company Monz Handelsgesellschaft International(“Monz”)is the owner of German design No.40 2011 00

135、4 383-0001,registered with the German Patent and Trademark Office for bicycle or motorcycle saddles.The design is composed of a singular drawing showing the underside of the saddle.The German company Bchel applied to the German Patent and Trademark Office for its invalidation arguing that the unders

136、ide of the saddle is not visible during normal use,and thats the reason why it could not be protected under Article 3(3)(a)of the Directive 98/71(“Design Directive”).The German Patent and Trademark Office declared the design valid,while the German Patent Court considered it invalid after an appeal,p

137、ointing out that only riding a bicycle is recognized as normal use,not excluding dismounting and getting on.Thus,the underside of the saddle is not objectively visible to the end user and to third parties.Monz has appealed this ruling to the Bundesgerichtshof(German Federal Court of Justice)which co

138、nsiders that the resolution of the dispute in the main proceedings depends on the interpretation of the concepts of“visibility”and“normal use”within the meaning of Article 3(3)and(4)of the Design Directive and has referred related questions to the CJEU for a preliminary ruling.JudgmentArticle 3(3)sp

139、ecifically addresses the requirement of visibility of a registered community design,and in this context,the CJEU has explained and emphasized in detail that appearance is a decisive element of a design and that visibility is an essential feature of design protection.Importantly,the judges confirmed

140、that the saddle is a component part of a complex product.The CJEU found that the visibility requirement cannot be examined in abstracto,i.e.in isolation from any practical situation of use.Indeed,a component part of a complex product must rather be visible to the end user or an outside observer duri

141、ng“normal use”.The judges adduced that the component part does not have to remain completely visible during the entire time the complex product is in use.Reading the intent of the legislature,it was pointed out that the assessment of“normal use”of a complex product cannot be exclusively dependent on

142、 the intent of the manufacturer of the component part or the complex product.Addressing the question of what is“normal use”by the end user,the judges pointed out that the Design Directive does not specify the type of use covered by Art.3(4)of the Design Directive,suggesting a broad interpretation of

143、“normal use”.Thus,“normal use”includes all activities before,during and after the use of a complex product for its main function,including storage and transportation,with the exception of use in connection with maintenance,servicing and repair(excluded by Article 3(4)of the Design Directive).18 Top

144、10 IP&TMT CJEU judgements of 2023Overall,the Court found that Articles 3(3)and 3(4)of the Design Directive together impose an assessment of the“visibility”requirement for normal use of the composite product,ensuring that the component part,once incorporated,remains visible during such use.This compr

145、ehensive interpretation,taking into account both the perspective of the user and that of an outside observer,provides clarity on the conditions for design protection under the EU legalframework.Experts commentsBartosz Dobkowski The recent CJEU ruling in the Monz v.Bchel case is crucial for design ow

146、ners,particularly in the bicycle and motorcycle industry.Design owners,especially in industries where complex products are involved,now have a clearer understanding of the criteria for securing design protection under the EU legal framework.The requirement of“visibility”applicable only to elements o

147、f complex products should not be confused with the rationale of visual perceptibility,which relates to design protection outside the complex product.Elements such as the lining of a coat or the inside of a jacket sleeve do not need to be visible during normal use,but it is sufficient that the user c

148、an see them at any time to obtain protection as registered community designs,meeting the criteria of novelty and individual character.Jakub KubitThe first CJEU ruling on“visibility”and“normal use”for complex products brings clarity for EU design rights holders.It strengthens the position of spare pa

149、rts manufacturers as well,especially automotive industry players currently having a greater opportunity for protection of elements previously considered as not visible at first sight.On the other side,this judgment may hinder traders whose business models depend on excluding invisible components fro

150、m design protection.Formerly,protection under“normal use”had been defined by the products principal function(as only cycling for bicycles),but currently the Court has expanded this notion to include any acts that are customary from the perspective of the end user(as storage or transportation).Given

151、the casuistic approach towards“normal use”,it is crucial to stay updated on CJEU and EUIPO decisions,especially with upcoming package of the pivotal EU design regulation.The 25-year protection is worth monitoring,as registered community design offers broader protection than some national designs.Top

152、 10 IP&TMT CJEU judgements of 2023 19Meta and Bundeskartellamt 4 July 2023 C-252/21#gdpr#targetedad#sensitivedata9BackgroundGermanys competition authority,the Bundeskartellamt,has found that Meta Platforms Ireland(“Meta”),which manages services offered on the online social network Facebook(the“Servi

153、ce”or“Facebook”)in the European Union,collected data from services affiliated with the Service,as well as third-party websites and applications(“non-Facebook data”),and linked it to Facebook user accounts,without obtaining valid consent under GDPR.In the case of non-Facebook data,this involves,first

154、ly,data on third-party websites and applications viewed and,secondly,data on the use of other online services belonging to the Meta group(such as Instagram or WhatsApp).The data collected in this way make it possible to personalize targeted advertising messages to Facebook users.Meta referred to the

155、 consent of users of the Service,expressed during registration,to the processing of their data(in particular,by confirming the rules of Metas use of data and cookies).However,due to the conditioning of the possibility of using the Service on this consent and Metas dominant position,the Bundeskartell

156、amt doubted the voluntariness of such consent required by the GDPR and found a violation of the GDPR rules being a manifestation of Metas dominant position.The Dsseldorf referring court before which the decision was challenged asked the CJEU about the intricacies of the intersection of competition a

157、nd data protection law,namely whether national competition authorities can carry out checks on this processings compliance with the requirements of the GDPR.JudgmentThe Court first clarified the power of national competition authorities to assess GDPR compliance in the context of abuse of dominance

158、cases.Competition authorities can analyze a dominant companys(in)compliance with the GDPR,but such assessments do not replace the role of the data protection authorities and are carried out only to determine abuse of dominance.In addition,competition authorities assessing the legality of data proces

159、sing activities must seek cooperation.The national competition authority,before necessarily examining the compliance of this companys behavior with the GDPR,should check whether this conduct or conduct similar to it has already been the subject of an adjudication by the competent data protection aut

160、hority or by the court.If this is the case,it cannot deviate from it in terms of the data protection regime,but it remains free to draw its own conclusions from this situation from the perspective of applying competition law.In addition,the CJEU confirmed that the processing of personal data involvi

161、ng the collection of data on a users interactions with social networks,websites or other applications,and the linking of such data to the users social network account and the use of such data may constitute the processing of special categories of personal data.Therefore,the court determined that the

162、 use of online services(browsing,responding to posts,creating accounts on websites and applications)may lead to the disclosure of special category data.However,it also cannot be interpreted as the user(data subject)making special category data public as a matter of course(Article 9(2)(e)of the GDPR)

163、.20 Top 10 IP&TMT CJEU judgements of 2023Experts commentsPawe Gruszecki The CJEUs judgment regarding Metas data practices has significant implications for dominant online platforms and the intersection of competition and data protection law.The ruling in question poses a significant challenge for co

164、mpanies with data-driven business models,especially market giants such as Meta.In addition,the decision establishes material complexity for them in basing the processing of personal data on the legal grounds of contract performance or legitimate interest.The CJEUs new interpretation(that the perform

165、ance of the contract must be objectively necessary for a purpose related to the contractual obligation significantly)narrows the scope of Article 6(1)(b)of the GDPR.Nevertheless,the ruling leaves sufficient room for interpretation and does not completely exclude the predominance of the legitimate in

166、terest of the social media platform(as regards first-party data).Paulina Wgrzynowicz This ruling underscores the importance of voluntary consent under GDPR and challenges practices where consent is coerced due to a companys dominant position.By clarifying the role of national competition authorities

167、 and acknowledging the potential processing of special categories of personal data,the judgment sets a precedent for ensuring that companies with dominant positions adhere to both competition and data protection regulations.This has broader ramifications for the digital ecosystem,influencing how use

168、r data is handled,consent is obtained,and privacy standards are maintained within the competitive landscape.The ruling also strengthens the view of the authorities on the processing of special categories of personal data in relation to the use of mobile apps and interaction with them.Any user-orient

169、ed online business should bear in mind the responsibility and special requirements that such processing entails.Top 10 IP&TMT CJEU judgements of 2023 21Seven.One Entertainment Group GmbH 23 November 2023 C-260/22#copyright#privatecopying#compensation10BackgroundSeven.One Entertainment Group GmbH(“Se

170、ven.One”)produces and broadcasts a private television program throughout Germany.It asked Corint Media,a German collecting society,to pay fair compensation for the broadcast reproduction made by individuals for private use.Under the agreement between the parties,Corint Media assumed the obligation t

171、o enforce the applicants right to receive the above compensation.Nevertheless,in the course of litigation,Corint Media responded that it could not remit the dues because German law excludes broadcasters from the right to fair compensation for personal use.The German referring courts question for a p

172、reliminary ruling concerned the interpretation of Articles 2(e)and 5(2)(b)of the InfoSoc Directive.It grants radio and television organizations the exclusive right to reproduce broadcasts of their programs.On the other hand,under Article 5(2)(b)of the InfoSoc Directive,member states may choose to li

173、mit the exclusive reproduction right provided for in Article 2 of that Directive by establishing an exception for private reproduction,provided that the rights holders receive fair compensation.Specifically,the referring court sought an answer to the question of whether national law could establish

174、an exception for private use reproductions of broadcasts while excluding broadcast organizations from the right to receive fair compensation.JudgmentThe CJEU found that Seven.One,as a broadcasting organization,could not be excluded from fair compensation for personal use copying if it suffered a pot

175、ential harm that could not be classified as“minimal”.Responding to preliminary questions,the Court held that EU law does not allow national legislation to deprive selected groups of right holders of compensation for authorized personal use on their own.In its view,radio and television organizations

176、are in a similar position to other entities that have the exclusive right to reproduce works.The differential treatment,in the CJEUs view,of these radio and television organizations and other rights holders should therefore be based on an objective and reasonable criterion and be proportionate to th

177、e objective pursued by the treatment in question.The only reason for differential treatment could be a finding that the degree of harm suffered by TV stations from authorized personal use is minor.This,however,would have to be proved by the state on the basis of objective criteria.Despite the imprec

178、ision or possibility of indirect mechanism of remuneration systems for private use copies,it is not justified,according to the CJEU,to exclude an entire category of copyright holders from the right to fair compensation when they suffer harm.The existence and extent of such damage is a question of fa

179、ct,the determination or non-determination of which is a matter for the referringcourt.22 Top 10 IP&TMT CJEU judgements of 2023Experts commentsKarol Laskowski The CJEU judgment on fair compensation for private use copying,particularly involving broadcasting organizations like Seven.One Entertainment

180、Group GmbH,has far-reaching implications for copyright holders and the broadcasting industry.The ruling clarifies that EU law prohibits national legislation from excluding specific groups,such as broadcasters,from fair compensation for authorized personal use,but it safeguards the rights of broadcas

181、ting organizations,ensuring they are not unjustifiably deprived of fair compensation.It establishes a precedent for a more equitable approach to remuneration systems,underscoring the need for proportional treatment of copyright holders within the evolving landscape of digital content consumption.Bar

182、bara Domaska The judgment in question serves as an important benchmark that can help further establish the boundaries of what member states can and cannot do when transposing EU directives into their domestic law.In reaffirming its earlier position that member states cannot completely exclude broadc

183、asting organizations from fair compensation under Article 5(2)(b)of Directive 2001/29,the CJEU established a framework for evaluating fair compensation,ensuring a balanced approach between the rights of broadcasters and users of protected content.Top 10 IP&TMT CJEU judgements of 2023 23Key upcoming

184、CJEU judgmentsCase referenceSummaryOpinion of the AG(yes/no)Citadines(C-723/22)The case concerns another interpretation of the concept of communication to the public.The parties to the case dispute whether the hotel defendant violated the plaintiffs right of communication to the public with respect

185、to the episode of the television series titled Wickie und die starken Mnner in that,in connection with the broadcast of the episode by a public television broadcaster,it could be viewed on television sets in the hotels room and gym,to which the hotel lawfully-on the basis of the acquired license-tra

186、nsmitted the broadcast signal.The hotel holds the view that it has the right to make available to its guests on television sets in the rooms and in the gym under the licensed retransmission by cable of broadcasts available on free-to-air public television.The plaintiff,on the other hand,is of the op

187、inion that the hotel is interfering with the right of public access and that the consent of the collecting society for cable retransmissions is irrelevant.NoSony and Datel(C-159/23)The case began with a lawsuit filed more than a decade ago in a Hamburg court by Sony.The defendants were Datel and aff

188、iliates,whose software allowed players of the PS portable console to make changes to games.The defendants software allows users to bypass restrictions in the plaintiffs computer games,modifying data in the game consoles working memory.The plaintiff alleges that this constitutes an impermissible modi

189、fication under Article 69c(2)of the UrhG(German Copyright Act).At issue is whether the adoption of a modification within the meaning of Article 4(1)(b)of Directive 2009/24/EC and Article 69c(2)of the UrhG requires a change in the substance of the software in the form of source code or object code.On

190、e view,supported by the German court of first instance,indicates that interference with the course of operation of software is sufficient for modification.The other approach advocated by the referring court argued that without interference with its substance,modification always requires interference

191、 with the source code or object code and,in this sense,with the substance of the software.NoMio and others(C-580/23)In 2021,the Asplund filed a lawsuit claiming that the respondent,MIO,infringed its copyright by copying its own dining table.The respondent submitted that the Palais Royal dining table

192、 would not be protected by copyright since it is not sufficiently original.The design was largely attributable to functional and technical considerations and based on simple variations of previously known designs that are part of the general design repertoire.The Swedish Patents and Market Court(“SP

193、MC”)held that the shape of the dining table was the result of the authors own intellectual creation and therefore sufficiently original.The respondent,however,subsequently appealed the decision and SPMC has decided to stay the proceedings and refer the following questions to the CJEU whether the sco

194、pe of protection correlates with the level of originality of work in the light of unclear rules from previous judgments in the Painer case(C-145/10)and the Cofemel case(C 683/17).No24 Top 10 IP&TMT CJEU judgements of 2023Case referenceSummaryOpinion of the AG(yes/no)Merck Sharp&Dohme (C-149/22)The c

195、ase concerns the eligibility criteria for Supplementary Protection Certificates-SPCs for“combination products”containing two or more active ingredients.The referral has been made by the Irish Supreme Court where Merck Sharp&Domes(“MSD”)cholesterol-reducing drug has been challenged by another company

196、 Clonmel.MDS obtained an SPC for monotherapy supported by Ezetrol and for a combination therapy of the drug with another product simvastatin.The first SPC expired at the time when Clonmel produced a competing drug containing two ingredients protected as a combination therapy.After an infringement cl

197、aim lodged by the MSD,SPC counter-claimed for revocation of the second SPC.The question concerns the notion of product and what can be protected in the file of active medical ingredients.NoLa Quadrature du Net and others v Premier ministre,Ministre de la Culture(C-470/21)The case has emerged in the

198、French Council dEtat and concerns the retention and access to internet users data.More specifically,the issue revolves around the general and indiscriminate retention of IP addresses,pointing to their connection source,for a limited period and for the purposes of crime investigation and prosecution.

199、The request for a preliminary ruling is aimed at confirming that the EU law does not preclude national provisions according to which national authorities can access the data which would enable the identification of persons suspected of online copyright infringements.Advocate General Szpunar suggeste

200、d that the French graduated response mechanism is compatible with the EU law requirements in the field of personal data protection.YesPelham II(C-590/23)The dispute saga involving the Kraftwerk group and the alleged unauthorized sampling of their song Metall auf Metall in the song Nur mir has gone t

201、hrough various legal stages in Germany,including appeals and referrals to the Federal Constitutional Court,which eventually led to the case being referred to the CJEU for a preliminary ruling.Again,the CJEU was asked this time by the German court,on whose decision the success of the appeal depends,w

202、hether the sampling in question qualifies as permissible pastiche.The first question seeks clarification on the provision limiting use for the purpose of pastiche,i.e.,whether there are limiting criteria for pastiche,such as the requirement of humor,stylistic imitation,or tribute.The second one aims

203、 to clarify when use is considered for the purpose of pastiche.The referring court suggests that it should be sufficient to determine pastiche if it is recognizable to a person familiar with the referenced copyright subject matter and possessing the intellectual understanding required to perceive th

204、e pastiche.NoTop 10 IP&TMT CJEU judgements of 2023 25AuthorsKarol LaskowskiPartner,Europe Co-head of Technology,Media and TelecommunicationsD+48 22 242 51 Pawe GruszeckiCounselD+48 22 242 56 Aleksandra Politaska-KunickaCounsel D+48 22 242 51 02aleksandra.politanska- Aleksandra DanielewiczSenior Asso

205、ciateD+48 22 242 55 Bartosz Dobkowski Senior AssociateD+48 22 242 57 19bartosz.dobkowski Marcin PrzybyszSenior Associate D+48 22 242 57 Marta StefanowiczBrand Protection&Trademark LeadD+48 22 242 51 Barbara DomaskaAssociateD+48 22 242 58 Kamil JanuszekAssociate D+48 22 242 52 Jakub KubitAssociate D+

206、48 22 242 56 Paulina WgrzynowiczAssociate D+48 22 242 52 Selected awards26 Top 10 IP&TMT CJEU judgements of 2023 2024 Dentons.Dentons is a global legal practice providing client services worldwide through its member firms and affiliates.This publication is not designed to provide legal or other advi

207、ce and you should not take,or refrain from taking,action based on its content.Please see for Legal Notices.CSBrand-137040 TOP 10 CJEU judgments of 2023-07 22/03/2024ABOUT DENTONSAcross over 80 countries,Dentons helps you grow,protect,operate and finance your organization by providing uniquely global and deeply local legal solutions.Polycentric,purpose-driven and committed to inclusion,diversity,equity and sustainability,we focus on what matters most to