ContractAlert - 17 April 2014

Welcome to the April 2014 edition of ContractAlert.

Anti-competitive licensing agreements

The new EU Technology Transfer Block Exemption Regulation (TTBER) comes into force on 1 May 2014.  Under the TTBER, some licensing agreements for patents, know-how, software and certain other technology rights are exempt from the EU competition law prohibition on anti-competitive agreements.

The new TTBER brings with it a number of important, albeit rather technical, changes: for instance, there are changes in how contract clauses providing for termination upon challenges to IP rights are dealt with. There are also changes concerning contract clauses that assign improvements back to the licensor. Parties negotiating licensing agreements should review their documentation in light of the new regime. The old TTBER will continue to apply to contracts entered into before 30 April, until 30 April 2015.

Hyperlinks and a "new public"

The CJEU has confirmed, fortunately, that linking to freely available internet content without the permission of the copyright owner does not infringe copyright.

More interesting than the result is the court's legal analysis.  The court ruled that publishing a hyperlink did constitute a "communication" for the purposes of copyright law. However, the court went on to say: "a communication … concerning the same works as those covered by the initial communication and made … by the same technical means, must also be directed at a new public, that is to say, at a public not taken into account by the copyright holders when they authorised the initial communication to the public."

So, if a hyperlink is directed to a "new public", the hyperlinker risks copyright infringement.

I find the court's analysis surprising, and no doubt we will be hearing more about this "new public" sometime soon.

Nils Svensson and Others v Retriever Sverige AB Case C-466/12

European Sales Law offers choice
The European Parliament has voted in favour of a Common European Sales Law (CESL). Organisations established within an EU member state will be able to take advantage of the CESL, even if selling cross-border to consumers or businesses located outside of the EU. The CESL, designed with distance selling and the digital marketplace in mind, will be optional, meaning businesses can choose whether to contract under domestic law or the CESL.

Modernising copyright

The final Exceptions to Copyright Regulations have been published and are now expected to come into force on 1 June 2014.  The Regulations include new defences allowing minor and reasonable copying of, for instance, CDs and DVDs for private use without copyright owners’ permission. The Regulations will also affect the use of content such as books, music, films and photographs

The rules were original due to come into effect in April (see our January edition for further details).

Distance selling: a reminder

UK laws relating to distance selling (and doorstep selling) are going to be updated in June. I'll provide full details in the next edition of ContractAlert, including links to template clauses.