Letters and Comment

June 2009

Copyright in the Courts: Moral Right in Architecture (Part II)

WIPO Magazine issue 1/2008 reported on a ruling handed down by a Spanish court regarding the moral right of an architect to the integrity of his work. At appeal, the Bilbao Provincial Court partially overruled the decision of the Judge of first instance.

As will be recalled, Santiago Calatrava was commissioned by the Town Hall of Bilbao to build a bridge over the Bilbao river. A few years later, a footbridge was added to that bridge, allowing direct access to a residential area designed by another prestigious architect, Mr. Arata Isozaki. The addition of the footbridge, which was also of a completely different architectural style, made it necessary to break part of the balustrade on Mr. Calatrava’s bridge. The Court of First Instance considered that there were reasons of public interest justifying the changes to the bridge, consisting in allowing direct access for citizens to the residential area designed by Mr. Isozaki. In the Judge’s opinion, this public interest should prevail over Mr. Calatrava’s moral right to integrity of his work. Mr. Calatrava lodged an appeal.

The Provincial Court of Bilbao decided in his favor on March 10, stating that the moral right for integrity in his architectural work had been infringed. The Provincial Court confirmed the opinion of the Judge of the Court of First Instance whereby the bridge is an original work protected by copyright. It also considered that the changes made to the bridge constituted an infringement of the moral right of integrity. But contrary to the opinion expressed by the Judge of the Court of First Instance, the Provincial Court considered that there are no reasons of public interest which should prevail over the moral right. The Provincial court reasoned as follows:

Mr. Calatrava’s bridge, on its own, already served the public interest by providing a means to cross the river at a place where it was not previously possible. After crossing the bridge, pedestrian had to go down one flight of stairs and up another to reach the residential area. The footbridge added to Mr. Calatrava’s bridge fulfilled a function of simple comfort, as it allowed a direct connection with the residential area, without the need to go up or down stairs. The Court considers that, in these circumstances, the footbridge does not represent a public interest that prevails over and above the author’s moral right. Simple comfort is not then, at least in this case, a public interest prevailing over the moral right.

Furthermore, the fact that in the Bilbao urban plan had a provision for direct access to the residential area did not justify the infringement. The Town Hall recruited a prestigious architect, such as Mr. Calatrava, not in order to plan the complete work provided for in the urban plan, but only to design and construct a bridge over the river. Some time later, once the bridge was complete, it decided to add the footbridge in order to connect the bridge to the residential area. According to the Court, the Town Hall could have made good on the provision made in the urban plan, by facilitating direct access to the residential area, in a manner that did not harm Mr. Calatrava’s moral right. However, as it did not do so, it infringed the copyright.

The court ordered the defendants (two construction firms and the Town Hall of Bilbao) to pay the architect €30,000 in compensation and to publish the details of the ruling in two widely distributed newspapers

From Professor Juan José Marín López, Gómez-Acebo & Pombo, Madrid, Spain


Raising IP Awareness in the Philippines

Not as simple as selling a bar of soap was how we described raising IP awareness in the Philippines in 2007 for the WIPO Magazine (see issue 5/2007 “No Short Cuts – Raising Awareness of IP in the Philippines”). Well, it still is not as simple as selling a bar of soap, but we’re making headway.

In 2008, IP Philippines Communications Team made certain breakthroughs in public outreach that has set an irreversible momentum for 2009 and the years to come. Strategic actions to improve public outreach included public relations (PR), advertising, exhibition areas, seminars, workshops and conferences, the Customer Service Area, active promotions via trade fairs and partnerships. Today, while advertising is still used sparingly, PR is enhancing IP Philippines’ public outreach. With materials tailor to fit various target media, news about IP Philippines has covered the gamut of print, broadcast and web.

With such wide PR coverage, IP Philippines expects to expand its audience reach and clientele. A dynamic Communications Plan has also allowed IP Philippines to be more proactive in addressing the issues and developments that fall under its purview. In the first quarter of 2009, IP Philippines organized several media events to create a buzz around priority areas identified by the agency. IP Philippines’s PR has also started reaching out via blogs and other emerging online communication venues, mostly to enhance the agency’s reputation as the leader in the IP arena.

IP Philippines extended its IP outreach nationwide in 2008, conducting 50 Basic Orientation Seminars around the country. The exhibit spaces at the IP Philippines corporate office (Alab Art Space and Innovation Area) housed seven exhibits, ranging from editorial cartoons to furniture made of renewable waste material as well as inventions from young minds.

All these efforts have contributed to a 32 percent increase in patent filings and 5 percent increase in trademark applications. More important, however, is the enthusiasm among artists, inventors, academicians, entrepreneurs and public officials for IP.

Marketing IP will never be easy. With a continually diversifying and discriminating audience, products have been categorized and re-categorized time and again. IP Philippines continues to break down its messages, to identify specific targets and zoom in on their needs and requirements. Communication is, and will always be, an integral component in building a stronger IP regime.

Atty Adrian S Cristobal Jr, Director General, IP Philippines

Google AdWords Challenged

We write to bring the WIPO Magazine’s attention to the GoogleTM AdWords system which is being challenged in the European Court system. Google AdWords allow anyone to purchase keywords and to advertise their product when a Google search is performed for the word in question. A significant amount of cases on various grounds have been brought before the courts against Google AdWords.

When the cases concerned trademark infringement, the French Courts took into account the unauthorized reproduction and use of trademarks in the computer tool proposed to advertisers and ruled in some of the cases that trademark infringement was embedded in the computer screen display of the plaintiff’s marks for identical and similar products. But difficulties arose in some of the proceedings: technically Google was not itself using or reproducing third parties’ trademarks.

This brought the French High Court, the Austrian High Court and the Dutch Supreme Court to question the Court of Justice of the European Communities (CJEC) on whether unauthorized trademark use was the proper basis for action. The CJEC’s will respond in the coming months.

The cases filed for misleading advertising pertain to the “Commercial links” which appear in the right side column of a page as a result of a Google search. In certain of these cases, the French Court decided that the “Commercial link” misled consumers into believing that there was a relationships between the trademark owner and the advertisers, thus they expected to find authentic products when they clicked on the links.

The French Court considered it unfair competition to purchase key words which only served the purpose of attracting consumers away from the authentic trademark owner’s website to that of a competitor. The Courts also found Google liable under civil law for not having elaborated a system to ensure that keywords did not infringe on a third party’s IP rights.

Trademark infringement will remain as grounds for cases against Google AdWord users until the CJEC’s decision comes through.

From Franck Soutoul and Jean-Philippe Bresson, INLEX IP Expertise, and reporters for IP TALK, France.

The WIPO Magazine is intended to help broaden public understanding of intellectual property and of WIPO’s work, and is not an official document of WIPO. The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of WIPO concerning the legal status of any country, territory or area or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication is not intended to reflect the views of the Member States or the WIPO Secretariat. The mention of specific companies or products of manufacturers does not imply that they are endorsed or recommended by WIPO in preference to others of a similar nature that are not mentioned.