World Intellectual Property Organization

Letters and Comment

April 2008

WIPO Magazine welcomes comments on issues raised in our articles or on other developments in intellectual property. Letters should be sent to The Editor at WipoMagazine@wipo.int or to the postal/fax address on the back cover of the Magazine. Please include your postal address. We regret that it is not possible to publish all the letters we receive. The editor reserves the right to edit or shorten letters. (The author will be consulted if substantial editing is required.)

Fashion shows win French copyright protection …

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(Courtesy Pierre Cardin)

Your article Design law in the European fashion sector touches on some of the difficulties for IP protection in the fashion industry. Your readers may be interested, therefore, in a French High Court ruling on February 5, 2008, that French Copyright protection applies to a fashion show. The protection granted by the High Court is not limited to the clothing, headgear and other creations displayed on the podium. It also covers the overall creation of the show, including the combination of music, lights, colors, choreography, etc.

The case related to the broadcast on a website (without authorization of the fashion houses) of photographs taken during several fashion shows. The Court of Appeal ruled that this broadcast fell within the scope of copyright infringement. The sued parties argued in vain before the High Court that the broadcast had been made for information purpose only.

… but paparazzi photos are excluded from copyright

In contrast, another interesting recent ruling went the other way, this one concerning the application of copyright to photographs taken by paparazzi.

A publishing company had brought an infringement case against some magazines which had reproduced photographs for which the plaintiff had earlier acquired copyright ownership from paparazzi photographers. On December 5, 2007, the Paris Court of Appeal denied the claim and ruled that copyright protection does not apply to paparazzi pictures.

Article L. 112-2 of the French Intellectual Property Code includes photographs amongst artistic works liable to enjoy copyright protection as long as they are original. The judge looked at whether the pictures in this case should be considered original artistic works. He found the work of the paparazzi to be passive and focused only on material aspects. The lack of any artistry in the composition of the photograph, the angle of the camera or the choice of the moment was also brought to bear in the consideration of originality. Some economic considerations also weighed in the balance.

To consider Paparazzi photographers as technical persons rather than artistic creators from a copyright perspective makes good sense. This decision does not however definitively exclude paparazzi pictures from copyright protection in France. The reasoning of the Court leaves the door open for French copyright protection to be given to photographs which demonstrate an artistic effect.

From Franck Soutoul and Jean-Philippe Bresson,
European Trademark Attorneys at INLEX IP Expertise; reporters for the IP Talk legal newsletter,
France.

Note: For a detailed analysis of the ruling on fashion shows, see, for example, the Journal of Intellectual Property Law & Practice 2008 3(5).

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Improving IP infrastructure in developing countries

The article No Shortcuts - Raising Awareness of IP in the Philippines (issue no. 5/2007) was interesting and informative regarding the innovative processes or activities that developing countries need to embark on to put life into their IP system and reap the benefits thereof. I am from Nigeria, and pray that the IP system here may get such an awakening.

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Among the instructive steps enumerated in the article, the need for auditing is very clear, as is the need for an understanding of the critical functions of the IP office in raising awareness of the importance of IP and of how the system works. If the IP office is dependent on government funding, with no mandate for results-oriented performance, then it remains a place for sharing the ‘national cake’ instead of a place to promote development. Mandating IP offices in developing nations to be self-sustaining (to a degree) might be an answer.

The IP infrastructure in Nigeria still has some way to go, despite the project collaborations with WIPO. Strategic actions can be adopted to improve the situation. But training personnel to drive the system will be a central challenge. The importance of a quality educational system to drive the system cannot be overstated.

From Philip C. Ngemegwai,
President/CEO/Chief Intellectual Property Officer, Infinite Dimensions,
Lagos, Nigeria.

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( Photo: Josean Prado (2006)

The need to balance moral rights and public utility

The case of the bridge over the river Nervión (Bridging Moral Rights and Public Utility, Issue no. 1/2008) deals with the relationship between the moral rights of the intellectual property holder, the Spanish architect, Santiago Calatrava, and the public utility.

The object of protection of intellectual property rights is to protect the work of an author as he has applied his intellect, time and money in its conception/creation. The basic idea is to promote development through creation of intellectual property so that people have some incentive to work their intellect for the benefit of mankind. The moral right is not absolute. Intellectual property rights have to take account of the public interest. In this case, the public interests of the citizens were appropriately taken care of by the judge. The moral rights of Mr. Calatrava are protected but only to the extent, they do not collide with public interest.

From Paramjeet Singh Berwal, Law Student,
University Institute of Legal Studies,
Chandigarh, India.

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