EU Law Blog

Google, AdWords, Internet Referencing and Trade Marks: Joined Cases C-236/08 to C-238/08 and Case C-278/08

The Court of Justice has handed down two important judgments on trade mark protection and internet keyword advertising.

The first is in Joined Cases C-236/08 to C-238/08 Google France and others v. Louis Vuitton and others and the second in is Case C-278/08 Die BergSpechte Outdoor Reisen v. Günter Guni. In both judgments, the Court held that EU law on trade marks allows the proprietor of a trade mark to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, if that advertisement does not enable an average internet user to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

Well, you know who or what Google is, right ? But it is worth explaining what goes on when you do a Google search. When you do a search on the basis of one or more words, the search engine will display the sites which appear best to correspond to those words, in decreasing order of relevance. These are referred to as the ‘natural’ results of the search. Google also offers a paid referencing service called ‘AdWords’. That service enables anyone, by reserving of one or more keywords, to obtain the placing of an advertising link to its site. That advertising link appears under the heading ‘sponsored links’ above the natural results. That advertising link is accompanied by a short commercial message. The advertiser pays a fee for the referencing service for each click on the advertising link. That fee is calculated on the basis, in particular, of the ‘maximum price per click’ which the advertiser agreed to pay when concluding with Google the contract for the referencing service, and on the basis of the number of times that link is clicked on by internet users. A number of advertisers can reserve the same keyword. The order in which their advertising links are then displayed is determined according to, in particular, the maximum price per click, the number of previous clicks on those links and the quality of the ad as assessed by Google. The advertiser can at any time improve its ranking in the display by fixing a higher maximum price per click or by trying to improve the quality of its ad. Google has set up an automated process for the selection of keywords and the creation of ads. Advertisers select the keywords, draft the commercial message, and input the link to their site.

So what was the problem ?

Vuitton, the owners of trademarks protecting their posh bags and leather goods, discovered that the entry, by internet users, of terms constituting its trade marks into Google’s search engine triggered the display, under the heading ‘sponsored links’, of links to sites offering imitation versions of Vuitton’s products. It was also established that Google offered advertisers the possibility of selecting not only keywords which correspond to Vuitton’s trade marks, but also those keywords in combination with expressions indicating imitation, such as ‘imitation’ and ‘copy’. Vuitton brought proceedings in the French courts against Google to obtain, inter alia, to obtaining a declaration that Google had infringed its trade marks.

The other cases joined with Vuitton's case concerned, not links to imitations of the trade mark holder's goods but to competitors of the trade mark proprietors.

The French court referred a series of questions to the Court of Justice on whether Google's practices were compatible with Directive 89/104/EEC on trade marks and Regulation 40/94/EC on the Community trade mark which entitle proprietors of trade marks, subject to certain conditions, to prohibit third parties from using signs which are identical with, or similar to, their trade marks for goods or services equivalent to those for which those trade marks are registered. In particular it asked whether:
Article 5(1)(a) and (b) of Directive 89/104 and Article 9(1)(a) and (b) of Regulation No 40/94 mean that a provider of a paid referencing service who makes available to advertisers keywords reproducing or imitating registered trade marks and arranges by the referencing agreement to create and favorably display, on the basis of those keywords, advertising links to sites offering infringing goods is using those trade marks in a manner which their proprietor can prevent;
in the event that the trade marks have a reputation, the proprietor oppose such use under Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94,
and interestingly, whether Google is liable: In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under Directive 89/104 or Regulation No 40/94, is Google to be regarded as providing an information society service consisting of the storage of information provided by the recipient of the service, within the meaning of Article 14 of Directive 2000/31 on electronic commerce, so that that provider cannot incur liability until it has been notified by the trade mark proprietor of the unlawful use of the sign by the advertiser?

In answering the first question, the Court recalled that by application of Article 5(1)(a) of Directive 89/104 or, in the case of Community trade marks, of Article 9(1)(a) of Regulation No 40/94, the proprietor of a trade mark is entitled to prohibit a third party from using, without consent, a sign identical with that trade mark when that use is in the course of trade, is in relation to goods or services which are identical with, or similar to, those for which that trade mark is registered, and affects, or is liable to affect, the functions of the trade mark (Case C‑17/06 Céline [2007] ECR I‑7041, paragraph 16; order in Case C‑62/08 UDV North America [2009] ECR I‑0000, paragraph 42; and Case C‑487/07 L’Oréal and Others [2009] ECR I‑0000, paragraph 58). Also, the use of a sign identical with a trade mark constitutes use in the course of trade where it occurs in the context of commercial activity with a view to economic advantage and not as a private matter (Case C‑206/01 Arsenal Football Club [2002] ECR I‑10273, paragraph 40; Céline, paragraph 17; and UDV North America, paragraph 44).

Consequently, the Court finds that, by purchasing the referencing service and selecting, as a keyword, a sign corresponding to another person’s trade mark, with the purpose of offering internet users an alternative to the goods or services of that proprietor, an advertiser uses that sign in relation to its goods or services. But that is not the case where Google permits advertisers to select, as keywords, signs identical with trade marks, stores those signs and displays its clients’ ads on the basis of those keywords. The use, by a third party, of a sign which is identical with, or similar to, the proprietor’s trade mark implies, at the very least, that that third party uses the sign in its own commercial communication. A referencing service provider such as Google, however, allows its clients, namely the advertisers, to use signs which are identical with, or similar to, trade marks, but does not itself use those signs. If a trade mark has been used as a keyword, the proprietor of that trade mark cannot, therefore, rely, as against Google, on the exclusive right which it derives from its mark.

By contrast, the trade mark owner can invoke that right against those advertisers which, by means of a keyword corresponding to its mark, arrange for Google to display ads which make it impossible, or possible only with difficulty, for average internet users to establish from what undertaking the goods or services covered by the ad originate. In such a situation – when the ad in question appears immediately after the trade mark has been entered as a search term by the internet user concerned and is displayed at a point when the trade mark, in its capacity as a search term, is also displayed on the screen – the internet user may err as to the origin of the goods or services in question. The function of the trade mark is thus adversely affected.

The Court held that it is for the national court to assess, on a case-by-case basis, whether the facts of the dispute before it point to an adverse effect, or a risk thereof, on the function of indicating origin.

As to the second issue concerning the use by internet advertisers of a sign corresponding to another person’s trade mark as a keyword for purposes of the display of advertising messages, the Court takes the view that that use is liable to have certain repercussions on the advertising use of that mark by its proprietor and on the latter’s commercial strategy. Those repercussions of third parties’ use of a sign identical with the trade mark do not of themselves, however, constitute an adverse effect on the of the trade mark.

Finally, on the question of the liability of Google in respect of the data of its clients which it stores on its server, the Court recalls that Directive 2000/31 lays down restrictions on liability which favor information society intermediary service providers.

As to whether an internet referencing service, such as ‘AdWords’, is an information society service consisting in the storage of information supplied by advertisers and whether, on that ground, the liability of the referencing service provider may be limited, the Court finds that it is for the national court to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge of, or control over, the data which it stores. If Google's role is passive, it cannot be held liable for the data which it has stored at the request of an advertiser, unless it had obtained knowledge of the unlawful nature of those data or of that advertiser’s activities and failed to act expeditiously to remove or to disable access to the data concerned.

The judgment of the Court in Case C-278/08 Die BergSpechte Outdoor Reisen v. Günter Guni is materially similar to that in Joined Cases C-236/08 to C-238/08 Google France and others v. Louis Vuitton and others. So no need to go into that case separately.

Draft Agreement on European Patent Judiciary: New Developments

A while ago, we pointed out that one of the biggest developments in the EU legal order is the work going on to create a new European-wide jurisdiction for disputes concerning European and Community patents.

At present no EU patent exists. There is a European Patent granted by the European Patent Office but such a patent is only a bundle of identical national patents conferring national protection (see Order in Case T-295/05 Document Security Systems, paragraph 53) (For an example - which concerns the refusal to grant a European Patent, see here). Disputes on the EPO patents are decided by national courts with the risk of multiple litigation. Consequently, the Council is working on a draft agreement to create a new European-wide jurisdiction. The agreement will be between the States wishing to ratify it and the EU itself.

The draft agreement aims to achieve the following :

- to establish a new jurisdictional system, to be named "European Union Patent Court", composed of a court of first instance - comprising a central division as well as local and/or regional divisions - and a court of appeal;
− to lay down that the new patents courts shall have exclusive competence in respect of actions for infringement of patents or for a declaration of non-infringement, actions or counterclaims for revocation of patents, actions for damages, actions relating to the use of the invention prior to the granting of the patent or to the right based on prior use of the patent and other actions concerning Community patents and related to licences or supplementary protection certificates;
− to provide that the jurisdiction of the new patents courts shall cover both the European patents and the Community patents (when created);
- to provide that decisions given by the new patents court of appeal may be subject to further appeal before the Court of Justice of the European Communities on points of law only ("cassation") in cases to be defined in the Statute.

The Council has recently released a new draft of of the Agreement.

Also, the Council is examining whether the EU has competence to conclude the draft Agreement. This document shows that the issue of a possible request to the Court of Justice for an opinion under Article 300 §6 EC is being discussed. Unfortunately, the actual assessment of the compatibility of the draft Agreement with the EU legal order is not publicly available and has been edited out. The document does state however:

"Up to now, the Commission has not withdrawn or amended its proposals for a Council Decision establishing the Community Patent Court and concerning appeals before the Court of First Instance (document of the Council 5189/04) and for a Council Decision conferring jurisdiction on the Court of Justice in disputes relating to the Community patent (document of the Council 5190/04), [...]. Such proposals seem incompatible with the draft Agreement."

Stem Cells, Patents and Public Policy: Ruling of EBoA on WARF/Thomson application

The European Patent Office's Enlarged Board of Appeal (EPoA) ruled on November 25th 2008 that it is impossible to grant patent protection to a certain stem cell application for reasons of public policy.

Back in 1995 the Wisconsin Alumni Research Foundation (WARF) filed an application with the EPO for a patent for a method for obtaining embryonic stem cell cultures from primates, including humans.

On July 13th 2004, an EPO Examining Division refused to grant a patent for the application on the grounds that it was found to be incompatible with the European Patent Convention (EPC). A principal reason for the refusal was that the method of obtaining stem cells used as the starting material a primate (including human) embryo which was destroyed in the process.

Then, in 2005 the Technical Board of Appeal competent in the case referred a number of points of law to the EPO's supreme judicial body, the Enlarged Board of Appeal, which is in charge of ensuring uniform application of the patent law.

The EBoA decided that patent protection could not be given to such a method because it necessarily involves the use and destruction of human embryos. The EBoA held that a patent could not be granted to protect an invention the commercial exploitation of which is contrary to public policy or public morality. It also held that the EPC prohibits patenting on uses of human embryos for industrial or commercial purposes. By the same token, the EPoA held that the provisions Directive 98/44/EC on the legal protection of Biotechnological inventions also provides that patents shall not be granted for inventions concerning uses of human embryos for industrial or commercial purposes. The EBoA must apply Directive 98/44/EC as it forms part of the EPC since 1999 and is applied by the EPO.

The ruling of the EPoA seems a narrow one. It made no determination of the patentability of claims based on any of the traditional criteria used to assess patentability – usefulness, novelty and non-obviousness. It makes clear that its decision does not address the question of patentability in general of inventions relating to human stem cell cultures.

The issue came up as to whether the EPoA should and could refer a question to the Court of Justice under Article 234 EC. It ruled that it could not do so as no legal and institutional links existed between it and the Court of Justice. Consequently, it was most unlikely that the Court of Justice would consider that the EBoA was a court or tribunal of a member State of the EU. It thus distinguished its situation from that of the Benelux Court which was in issue in Case C-337/95 Dior v. Evora, paragraph 31.

European Union Patent Courts & Judiciary

Work has started in earnest in the Council on a draft Agreement on the European Patent Judiciary. A revised Presidency working document dated May 14 2008 with a new version of the draft Agreement was released recently. (For a first draft, see here).

The idea of the draft Agreement is to set up a new patent court system in the EU with exclusive jurisdiction over claims of infringement, revocation, damages, prior use or invention as well as relating to licensing of European patents granted under the European Patent Convention or EC patents granted pursuant to a regulation still to be adopted and proposed in 2000 which is currently under discussion (the proposal being substantially revised in 2004).

Back in 2003 the Commission had made two proposals. One - COM(2003)827 final - was to confer on the Court of Justice formal jurisdiction concerning certain disputes over Community Patents, in particular those concerning alleged infringements of patents and challenges to the validity of patents. The second - COM(2003) 828 final- was to establish a Community Patent Court, whose seven judges would be appointed by the Council, to exercise the Court of Justice's jurisdiction on its behalf. That proposal also entailed establishing a specialized chamber within the Court of First Instance to hear appeals against the Community Patent Court's judgments. In exceptional cases, a decision of the Court of First Instance could be subject to review by the Court of Justice.

What is currently envisaged in the draft Agreement on the European Patent Judiciary is quite different. It aims to set up its own court of first instance, completely separate from the eponymous court in Luxembourg, with a central division somewhere and local or regional divisions too. A bit like Circuit courts. There will also be a separate court of appeal. Finally, there will be a limited right of review on points of law only by the Court of Justice (the one that already exists in Luxembourg).

An interesting aspect is the proposed rules on the languages of procedure. Basically, the language of procedure will be the language of the member State where the local or regional division is situated unless the parties agree on the use of the language in which the patent was granted.

We'll see how this progresses.

File Sharing, Kazaa, Intellectual Property Rights and Privacy: Case C-275/06

The Court of Justice has handed down an interesting judgment in Case C-275/06 Promusicae v. Telefónica on the balance to be struck between privacy and the effective protection of intellectual property rights to prevent peer-to-peer musical file transfers.

It goes like this. In the blue corner you have several EC Directives protecting intellectual property rights, like Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society, and Directive 2004/48/EC on the enforcement of intellectual property rights. In the red corner you have Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector. And in the middle you have folks using Kazaa on the internet, access to which is provided by an internet service provider like Telefónica in Spain.

Promusicae, a Spanish organization of producers and publishers of musical and audiovisual recordings, applied to the Spanish courts for an order that Telefónica should disclose the identities and physical addresses of people whom it provided with internet access services, and who were allegedly using the KaZaA file exchange program to share musical and audiovisual files. It sought disclosure of that information to be able to bring civil proceedings against the persons concerned.

Under Spanish law the communication of the data sought by Promusicae was permitted only in a criminal investigation or for the purpose of safeguarding public security and national defence. What Promusicae wanted to commence were clearly civil, not criminal proceedings. Thus, the question was referred to the Court of Justice whether EC law requires member States to lay down, in order to ensure effective protection of copyright, an obligation to communicate personal data in the context of civil proceedings.

The Court held that EC law as it currently stands does not require member States to render mandatory the disclosure of the sort of information requested by Promusicae to commence civil proceedings to protect intellectual rights.

As a result, the file sharers can have their data protected in Spain and it won't be disclosed to the likes of Promusicae to commence civil proceedings against them.

The question is therefore whether Spain could change its law to render disclosure of the personal data sought obligatory in the context of commencing civil proceedings.

The Court held that EC law does not preclude the mandatory disclosure of such information. But when member States introduce legislation to render such disclosure mandatory, the Court held that they must, when transposing the directives on intellectual property and the protection of personal data, rely on an interpretation of those directives which allows a fair balance to be struck between the various fundamental rights protected by the EC legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with the directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality (see Case C-101/01 Lindqvist, paragraph 87, and Case C-305/05 Ordre des barreaux francophones et germanophones and Others, paragraph 28 - a case we noted here.

A close reading of the Court's judgment and of the Advocate General's Opinion shows a divergence of view on disclosure of such personal data could ever be made mandatory in the context of civil proceedings.

The Advocate General in paragraphs 84 to 86 of her opinion came to the conclusion that Directive 2002/58 does not allow member States to render mandatory disclosure of personal data in the context of civil proceedings brought to protect the rights of others. She pointed out that Article 15(1) of Directive 2002/58 set out two types of bases for exceptions, namely, on the one hand, in the first four alternatives, national security (that is, State security), defense, public security, and the prevention, investigation, detection and prosecution of criminal offenses and, on the other, in the fifth alternative, unauthorized use of the electronic communication system. In addition, Article 15(1) of Directive 2002/58 refers to Article 13(1) of Directive 95/46, which contains further grounds of exception. The question was what exactly did that reference to Article 13(1) of Directive 95/46 mean. She noted that Article 13(1)(g) of Directive 95/46 allows the communication of personal data for the protection of the rights and freedoms of others. Unlike the grounds of exception in Article 13(1) of Directive 95/46, this ground is not expressly listed in Article 15(1) of Directive 2002/58.
Viewed in isolation, that could be understood as a reference to all the grounds of exception under Article 13(1) of Directive 95/46. However, that is contradicted, she opined, by the fact that Article 15(1) of Directive 2002/58 itself mentions grounds of exception which are intended to allow a restriction ‘in accordance with Article 13(1) of Directive 95/46’. Those grounds correspond only in part to the grounds in Article 13(1) of Directive 95/46 and do not include the exception for the rights of others, mentioned under (g). Consequently, the grounds mentioned in Article 13(1) of Directive 95/46 are applicable in the electronic communications sector only in so far as they are expressly included in Article 15(1) of Directive 2002/58. As the protection of the rights and freedoms of others was clearly omitted from the list in Article 15(1) of Directive 2002/58, the reference to Article 13(1) of Directive 95/46 could not incorporate it indirectly.

The Court of Justice took the opposite view in its judgment. It held in paragraph 53 of its judgment:

"It is clear, however, that Article 15(1) of Directive 2002/58 ends the list of the above exceptions with an express reference to Article 13(1) of Directive 95/46. That provision also authorises the Member States to adopt legislative measures to restrict the obligation of confidentiality of personal data where that restriction is necessary inter alia for the protection of the rights and freedoms of others. As they do not specify the rights and freedoms concerned, those provisions of Article 15(1) of Directive 2002/58 must be interpreted as expressing the Community legislature’s intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings."

TRIPs Agreement, Direct Effect and Patents: Case C-431/05

The Court of Justice handed down a neat judgment on the direct effect in national law of Article 33 of the TRIPs Agreement.

The Court held in Case C-431/05 Merck Genéricos Produtos Farmacêuticos that it is not contrary to EC law for Article 33 of the TRIPs Agreementto be given direct effect in national law and be applied directly by a national court. The Court also held that it had jurisdiction to interpret Article 33 of the TRIPS Agreement to ascertain whether it is contrary to EC law for that provision to be given direct effect.

Article 33 of the TRIPs Agreement, as everyone surely knows, is in the section on patents and stipulates :

"The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date."

Hands up all those who did not know that.

The Court held that the WTO Agreement, of which the TRIPs Agreement forms part, was signed by the Community and subsequently approved by Decision 94/800. Therefore, according to settled case-law, the provisions of that convention form an integral part of the Community legal order (see, inter alia, Case C-344/04 IATA and ELFAA, paragraph 36, and Case C-459/03 Commission v Ireland, paragraph 82). Within the framework of that legal order the Court has jurisdiction to give preliminary rulings concerning the interpretation of that agreement (see, Case 12/86 Demirel, paragraph 7).

Because the TRIPs agreement was concluded by the EC and its member States by virtue of joint competence without any allocation between them of their respective obligations towards the other contracting parties, what is decisive in deciding whether the Court of Justice has jurisdiction to interpret the particular stipulation of the TRIPs Agreement is whether the EC has legislated in the field covered by it.

When the field is one in which the EC has not yet legislated and which consequently falls within the competence of the member States, the protection of intellectual property rights and measures taken for that purpose by the judicial authorities do not fall within the scope of EC law, so that the latter neither requires nor forbids the legal order of a member State to accord to individuals the right to rely directly on a rule laid down in the TRIPs Agreement or to oblige the courts to apply that rule of their own motion (Joined Cases C-300/98 and C-392/98 Dior and Others, paragraph 48).

On the other hand, if the EC has enacted rules in the sphere in question, EC law will apply. That means that it is necessary, as far as may be possible, to supply an interpretation in keeping with the TRIPs Agreement (see, Dior and Others, paragraph 47), although no direct effect may be given to the provision of that agreement at issue (Dior and Others, paragraph 44).

In order to answer the question whether there is or there is not any EC legislation covering the subject matter of the TRIPs Agreement, the Court held that a uniform answer at the EC level is required thus justifying giving the Court of Justice exclusive jurisdiction to answer it.

In this case, the Court held that there are no rules on the EC level specifically covering the subject matter of Article 33 of the TRIPs Agreement. Accordingly, the member States remain competent and they can decide whether or not Article 33 has direct effect. It is not contrary to EC law to give that provision direct effect in national law but of course, EC law does not require it to have direct effect.

This judgment will surely be remembered also for containing one of the best and inadvertently funny one line paragraphs:

"As Community law now stands, there is none."

Communication on improving patent system in Europe

The Commission has issued a Communication on enhancing the patent system in Europe.

A press release sums up the bad state of affairs neatly:

"The Communication highlights that Europe's current patent system is considerably more expensive than the US and Japanese systems. A Community patent would be far more attractive than models under the present system which is a bundle of national patents. A European patent designating 13 countries is 11 times more expensive than a US patent and 13 times more expensive then a Japanese patent. The existing system of patent litigation in the EU, with the risk of multiple patent litigation in several countries on the same patent issue, leads to unnecessary costs for all the parties involved and causes lack of legal certainty."

But how to improve the situation? The member States are divided:

"Recent discussions with Member States show polarised positions on patent jurisdiction arrangements with, on the one hand, Member States supporting the draft European Patent Litigation Agreement (EPLA) in the context of the European Patent Convention, and, on the other hand, Member States favouring the establishment of a specific Community jurisdiction for patent litigation on European and Community patents based on the EC Treaty."

Too bad.

Pharmaceuticals, TRIPS & the EU

Here's an interesting article entitled "Popping Patented Pills: Europe and a Decade’s Dose of TRIPS" by David Vaver and Shamnad Basheer (who sometimes blogs over at Law and Other Things, by the way), both of The Oxford Intellectual Property Research Centre.

This is what the abstract states:

This paper considers some features of Europe’s approach to medicine, public health and patents as it has developed during the decade since TRIPs came into force. It then reviews what rights users have in relation to such patents and what duties right holders may owe users. The following issues are discussed:
1. How patents on medicines are viewed in Europe;
2. How TRIPs has affected European law;
3. How bilateral agreements since TRIPs have affected Europe;
4. How user rights should be viewed under TRIPs;
5. Whether patents in the public health field are a special case.

Well worth reading.

You can download the article here.

Copyright, exhaustion, freedom of expression & Directive 2001/29: Case C-479/04

The Court of Justice handed down an interesting judgment in Case C-479/04 Laserdisken ApS v. Kulturministeriet on the validity of Directive 2001/29 on the harmonization of certain aspects of copyright and related rights in the information society.

The case arose because the plaintiff in the main proceedings, Laserdisken, sells DVDs in Denmark. Laserdisken sold all kinds of DVDs, including original American editions and a wide range of films which were not otherwise available in Europe. But then Article 4 (2) of the Directive provided that the distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent. In fact, Article 4 (2) had a major impact on Laserdisken's trade in non-EU DVDs. As a result, Laserdisken sued the Danish Ministry responsible for implementing the Directive and claimed, among other things, that the Directive breached the right of freedom of expression because citizens were deprived of their right to receive information in breach of Article 10 of the European Convention on Human Rights.

The Court rejected Laserdisken's claims and upheld the validity of Directive 2001/29 because it helped to protect copyright.

The Court held that freedom of expression is a fundamental right the observance of which is ensured by the EC courts (see Case C-260/89 ERT, paragraph 44). But, if the exhaustion rule laid down in Article 4(2) of the Directive does restrict that freedom to some extent, the Court pointed out that Article 10(2) of the ECHR allows the freedoms guaranteed by Article 10(1) ECHR to be limited for certain reasons in the public interest, including the protection of intellectual property rights like copyright.

Compulsory licenses of pharmaceutical patents for export

The Community has adopted and published a regulation - Regulation 816/2006 - on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with health problems.

This regulation sets up, within the EC, the system that had been foreseen in paragraph 6 of the Decision of the General Council of the WTO of August 30th, 2003 implementing the Doha Declaration on the TRIPS Agreement and public health. It enters into force at the end of June 2006.