Durán-Corretjer SLP

The Court of Justice of the European Union has issued a preliminary ruling on case C-70/10 SCARLET/SABAM referred by the Court of Appeal of Brussels with regard to the matter of the illegal downloading of files protected by copyright via the Internet.

The case originates from a dispute between an Internet service provider, Scarlet Extended SA, and the Belgian company SABAM, which manages for third parties the exploitation of works of music from authors, composers and publishers.

SABAM detected that the users of Scarlet’s services were downloading works from its catalogue via the Internet without authorisation and, therefore, without paying royalties and proceeded with filing a complaint against Scarlet before the Belgian Courts, requesting that means be established to make it impossible to commit those infringements. The Court of First Instance in Brussels upheld the complaint and found Scarlet guilty.

Scarlet filed an appeal against this decision, alleging that the sentence breached the Community Directive on electronic commerce and the fundamental rights of the European Union. The Court of Appeal of Brussels referred the matter to the Court of Justice of the European Union for a preliminary ruling, which has issued its verdict in the aforementioned sentence.

In its sentence, the Court of Justice of the European Union indicates that, although the owners of copyright have the right to prevent third parties from breaching their copyrights and, as such, they can take action against intermediates, such as Internet service providers when the clients of the service providers use those services to infringe copyright, any such actions must respect Community legislation, in particular, the Directive on electronic commerce. This Directive establishes that measures may not be adopted that require Internet service providers to control in a general manner the information that is transmitted via  their networks.

As a result, this sentence establishes that the Community regulations do not allow an obligation to be imposed on Internet service providers to install a system that filters all electronic communications that pass through their services and that correspond indiscriminately to all of their clients, as a preventative measure, at their own cost and for an unlimited period of time.

However, this sentence shall not prevent measures from being taken against specific individuals or companies that perform illegal downloads.

Further information on the full sentence may be found on the following link:

http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-70/10

This sentence is of particular importance for those companies which are dedicated to providing Internet services to third parties.

On March 24, 2010, the practice for recording assignments, licences and changes of name for patents and utility models in Spain changed.From now on, it will be possible to make these recordals by submitting the following documents:
1) ASSIGNMENTS & LICENCES

1. The original assignment or licence document with the signatures of the parties, legalised by Notary Public and with the Apostille or corresponding Consular legalisation; or


2. a copy of document a) notarised and legalised with the Apostille or corresponding Consular legalisation; or


3. a certificate of assignment or licence form signed by the assignor/licensor and assignee/licensee without any legalisation.


4. In all cases, a power of attorney, signed by the applicant, who may be the assignor/licensor or the assignee/licensee, will be necessary. No legalisation of the signature will be required.

2) CHANGES OF NAME
Only a power of attorney, as above, will be required. No evidence of the change of name will be required unless the Spanish Patent and Trade Mark Office raises any reasonable doubts about the certainty of the change.As you will see, the above changes considerably simplify the burden of evidence for these recordals.These changes do not mean that in order to record an assignment, licence or change of name, it is no longer required for a formal document of assignment, licence or change of name, valid according to the laws of the country of the parties, to exist, since otherwise the recordal would be void.In addition, these changes also mean that it will no longer be necessary to show proof before the Spanish Patent and Trade Mark Office that the payment of the Tax on the Transmission of Property in Spain has been carried out.Nevertheless, the obligation to make these payments prevails and we advise that they be made in all cases, since otherwise, the Spanish Tax Authorities could very easily see that they have not been paid (by simply checking the recordal at the Spanish Patent and Trade Mark Office) and order that these taxes be paid with fines. The Spanish Tax Authorities can claim and review these payments within 4 years.
If you need any additional information about these changes or if you have any questions, please do not hesitate to contact us.