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Competition law in copyright exploitation—UK

As of 31 January 2020, the UK ceased to be an EU Member State. In accordance with the Withdrawal Agreement, the UK entered a transition or implementation period of 11 months until 31 December 2020, during which it continued to be subject to EU law. EU law introduced, or implemented, after 31 December 2020 (IP completion day) is not binding on the UK.For EU legislation pre-dating 31 December 2020, a new category of domestic law, retained EU law, was introduced under the European Union (Withdrawal) Act 2018 (EU(W)A 2018), and subsequently the European Union (Withdrawal Agreement) Act 2020, and case law relating to any such retained EU law prior to the end of 2020 continued to have effect in the UK. For more information, see Practice Notes: Brexit—key legislation explained and Retained EU law and assimilated law.The Retained EU Law (Revocation and Reform) Act 2023 further amended this position from the end of 2023. From 1 January 2024, retained EU law which remains in force in the UK is ‘assimilated’...

Resale of second-hand software

Resale of second-hand software When commercial software is acquired from a software supplier, a non-exclusive licence is usually all that is obtained. The supplier retains copyright ownership in the code—they permit a transfer or download of the code to the buyer, and, in exchange for a fee, the buyer takes a licence subject to often extensive terms and conditions. Although software is commonly referred to as being ‘bought’ or ‘sold’, the legal basis is (at least for commercial applications) that there is invariably no transfer of ownership. Only a limited right to use is being acquired. This Practice Note considers the legal and commercial issues surrounding whether such licences if no longer required by the licensee can be ‘resold’, ie assigned to a new user. Second-hand software market This Practice Note is concerned with the resale of business software—as opposed to games software; this has different characteristics namely, the incorporation of music, pictures and animation which raise additional copyright issues. Following the ruling by the EU’s Court of Justice...

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Literary rights option agreement

Literary rights option agreement This Agreement is made on [insert date] between the following parties (each a ‘party’ and together the ‘parties’): Parties 1 [insert Company name] a company incorporated in England and Wales whose registered number is [insert Company number] and whose registered office is at [insert registered office] (the Company); and 2 [insert Author name] of [address] (the Author). Background (A) The Author is the owner of the worldwide copyright in the literary work published by [name] entitled [title] (the Work). (B) The Author has agreed to option and, conditional upon exercise of the option, to assign to the Company certain rights in and to the Work subject to the conditions and for the consideration set out in this Agreement. The parties agree: 1 Definitions and interpretation 1.1 Words shall have the meanings given to them in this Agreement, including: Act • means the Copyright, Designs and Patents Act 1988; Final Budget • means the above and below the line production budget of...

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An EU market in second hand software has developed since the Court of Justice ruling in UsedSoft v Oracle, Case C-128/11. Once the Brexit implementation period ends, what changes will there be in how that ruling applies in the UK in respect of second hand software?

An EU market in second hand software has developed since the Court of Justice ruling in UsedSoft v Oracle, Case C-128/11. Once the Brexit implementation period ends, what changes will there be in how that ruling applies in the UK in respect of second hand software? UsedSoft In 2012, the decision of the Court of Justice in UsedSoft v Oracle opened the door to a market for second-hand software in the EEA. Specifically, it concerned the ‘sale’ of perpetual licences for a one-off fee and the interpretation of Article 4(2) of Directive 2009/24/EC (the Software Directive) as it related to onward sales. Article 4(2) of the Software Directive states: ‘The first sale in the Community of a copy of a program by the rightholder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof.’ In UsedSoft, the Court of Justice found that the...

Can a producer of an audio-visual work (an advert) shown on TV ‘buy out’ the rights of an actor who features in the work as opposed to using a repeat fee model for payment?

Can a producer of an audio-visual work (an advert) shown on TV ‘buy out’ the rights of an actor who features in the work as opposed to using a repeat fee model for payment? For the purposes of this Q&A, ‘buy out’ refers to a one-off fee rather than repeat fees. In the scenario described, the typical intellectual property rights of patents, trade marks, designs and copyright are unlikely to be relevant. For example, any copyright in the audiovisual work as a dramatic work is unlikely to be owned by the actor unless they are also the author of the scenario for the advert. The actor does hold rights in their performance. Part II of the Copyright Designs and Patents Act 1988 (CDPA 1988) confers certain exclusive rights on performers. Performers rights arise automatically if the performance is a ‘qualifying performance’ (for further detail, see Practice Note: Performers’ rights and rights in performances). A performance is defined by CDPA 1988, s 180(2) as a dramatic performance, a...

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Dispute Resolution weekly highlights—1 August 2024

This week's edition of Dispute Resolution weekly highlights includes analysis of a number of key DR developments and key judicial decisions including the Civil Procedure (Amendment No 3) Rules 2024 (SI 2024/839) and the High Court decision in Artcrafts International SpA v MOU Ltd (interim injunction); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.

Commercial weekly highlights—1 August 2024

This week's edition of Commercial weekly highlights includes: news that the Supreme Court has refused permission to appeal the decision in SMIT Salvage BV v Luster Maritime SA which considered whether a legally binding contract was concluded where the parties recognised that some matters were still to be agreed upon at a later date, analysis of the decision in Artcrafts v MOU Ltd which considered whether an agreement contained express or implied terms permitting either party to terminate the agreement on reasonable notice, and news of the opening of the Competition and Markets Authority’s consultation on its draft guidance and rules to exercise its new direct enforcement powers regarding consumer protection law under the Digital Markets, Competition and Consumers Act 2024.