Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

The Court of Justice of the European Union (CJEU) has ruled on the level of copyright protection applicable to computer software under the Software Directive (Directive 91/250/EEC) in Case C-406/10 SAS Institute Inc. v World Programming Ltd.

SAS had developed a computer program which allowed licensed users to write and run their own scripts in the SAS programming language. WPL created a competing program which had the same functionality as the SAS system, thereby giving SAS users the ability to run scripts on both the SAS and WPL programs. SAS commenced copyright infringement proceedings against WPL in the UK High Court. The High Court referred several questions to the CJEU with regard to the scope of copyright protection under the Software Directive, all on the basis that WPL had never copied nor even seen the SAS source or object codes. 

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The UK High Court has this week confirmed that there can be a database right in independently compiled football statistics.

The decision in Football Dataco Ltd & Ors v Sportradar GmbH & Ors [2012] EWHC 1185 (Ch) comes in the wake of a number of other decisions which suggest that copyright is not available in such factual compilations and will also be a welcome clarification of the traditional scope of database rights as set out in the British Horseracing Board Ltd & Ors v William Hill Organisation Ltd (Case C-203/02). To read the full decision click here.

The plaintiff, Football Dataco, displayed football statistics on an interface known as "Football Live". This interface was used to input match data into a much larger database maintained by its subcontractor PA Sport UK. That data consisted of , for example, scores, penalties and player substitutions, and was "live" in the sense that it was updated while the matches were being played....

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In recent weeks surveillance and intelligence shared between Irish Customs and Gardai has resulted in a seizure of counterfeit clothing worth an estimated street value of €600,000 by Gardai. The clothing was imported without labels which were separately posted into Ireland and re-attached to the products. The removal of the labels appears to have been an attempt by the counterfeiters to avoid detection by customs officials at import point. This ploy was unsuccessful in this instance.

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The Office of the Data Protection Commissioner has published its 23rd Annual Report today. The high level of investigative activity in relation to data protection matters continued unabated during 2011. The ODPC notes a clear shift from traditional complaints relating to inappropriate or unfair use of personal data to a "clearer technology focus" where complaints are increasingly relating to the security of personal data and the use or misuse of technology in ways that present real risks to personal data.

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 The CJEU has ruled, in Bonnier Audio AB and others v Perfect Communication Sweden AB, Case C-461/10, 19 April 2012, that the Data Retention Directive (2006/24/EC) does not preclude the application of national laws that allow an ISP to be ordered to provide information identifying a particular subscriber whose IP address is suspected of being used for infringing purposes. 

The Data Retention Directive (which was implemented in Ireland by the Communications (Retention of Data) Act 2011) requires ISPs and Telcos to retain certain data to ensure such data is available for the purposes of the investigation, detection and prosecution of serious crime and the combating of terrorism, and to provide such data only to certain public authorities.

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There have been a number of developments on this topic since our last blog post. Since January, companies and organisations have been applying to the Internet Corporation for Assigned Numbers and Names (ICANN), to have almost any word, in any language, registered as a domain name or gTLD.

April 30^th is an important date for all brand owners as the full list of domain name applications is due to be published that day. The number of applicants is expected to be at least 1,000. It will be interesting to see who has made an application.

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Virgin Media has discontinued a recent advertisement for the Virgin TIVO style set top box. The television advertisement contained a sketch in which the former Doctor Who, David Tennant sits watching television and selects his favourite programmes which includes old Doctor Who episodes, complete with images of the Doctor Who logo. Meanwhile, Richard Branson appears to be tinkering with a time machine which subsequently transforms him into his younger self.

The BBC alleged that the references to time travel combined with the display of old Doctor Who episodes and the Doctor Who logo was an unauthorised attempt to use the show's brand and goodwill for the promotion of the Virgin product and that such use could be perceived as a commercial endorsement of Virgin Media products.

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Boy band One Direction was sued for trade mark infringement in the US this week. A California-based rock group of the same name has filed a multi-million dollar lawsuit against the British/Irish band and their representatives, Syco Entertainment and Sony Music, seeking an injunction preventing them from using the name One Direction in promotional materials.

The California-based band has allegedly been using the name One Direction since late 2009, prior to the formation of the British/Irish band on the X Factor in 2010. 

It filed an application to register the trade mark at the US Patent and Trademark Office in early 2011. The trade mark has not yet however been registered. Interestingly, it appears from online searches at the USPTO that representatives of the British/Irish One Direction have applied to register a similar trade mark, “1D One Direction”.

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Recently, we blogged on the progress of the Anti-Counterfeit Trade Agreement (ACTA) currently being fostered by the European Commission. The Agreement, which has been signed by the US, Japan and Australia, represents common standards by which countries agree to regulate aspects of IP infringement. Following a decision at the European Parliament on 27 March, ACTA has now side-stepped a referral to the CJEU.

The decision, the outcome of a vote by the International Trade Committee (ITC), will result in the ACTA coming before the European Parliament for a full vote as early as this summer. The referral to the Court of Justice of the European Union was recommended by the European Commission, which has championed this controversial Trade Agreement.

Critics of ACTA have broadly welcomed the decision, calling the referral a stalling tactic to delay the vote taking place in the European Parliament. 

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The European Communities (Electronic Communications Networks and Services)(Privacy and Electronic Communications) Regulations 2011 took effect from 1 July 2011 in Ireland and introduced the updated and rather controversial provision requiring consent to the use of cookies on websites (see our earlier blog here). Therefore, the publication by the International Chamber of Commerce in the UK of new guidance on the subject is timely and to be welcomed, although it shouldn't be taken as a definitive statement of the law or indeed reflective of the views and approach of the Irish Data Protection Commissioner.

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The Article 29 Working Party has issued its Opinion on the draft Data Protection Regulation. The Working Party welcomes the proposals, but notes that parts of the Regulation need clarification and improvement.

With regard to the positive aspects of the Regulation, in brief, the Working Party states that:

• For individuals, the Regulation strengthens their rights by providing for greater transparency, strengthened right to data access, strengthened right to object, right to data portability, strengthened right to data deletion ('right to be forgotten'), and strengthened right to redress both through the DPA and the courts.
• For data controllers, the Regulation brings greater consistency, through privacy impact assessments, appointment of a DPO, data breach notification duties and the adoption of a precautionary approach to international transfers.

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Earlier this week the Minister for Jobs, Enterprise and Innovation, Richard Bruton TD, unveiled the Government’s planned investment of €1.2 million in a new research programme that it hopes will not only create jobs and economic growth but will also help to make Ireland a world leader in cloud computing.

The funding, which will be allocated to a consortium of Higher Education Institutions over 12 months, will support the initial research programme of the Cloud Computing Technology Research Centre as part of the Government’s five year investment in the centre. Technology Centres are public-private research centres that bring industry and education together to create new, industry-relevant knowledge.   

The Cloud Computing Technology Research Centre is one of ten such thematically based centres to be established jointly by Enterprise Ireland and IDA Ireland.

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The Broadcasting Authority of Ireland (BAI) has today launched a public consultation on a new Draft Children’s Commercial Communications Code (Children’s Code) and a new Draft General Commercial Communications Code (Commercial Code). The new Children’s Code is necessary for the Broadcasting Act to fulfil its obligations under the Broadcasting Act 2009. A copy of the draft Children's code is available here. The focus of the draft Children’s Code is, in particular, the area of fatty and sugary foods and the limits which ought to be placed on advertising of such foods to children. The code proposes that..

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Numerous laws and treaties are in place that bolster the ability of law enforcement authorities to co-operate across borders in the investigation, apprehension and conviction of serious criminals and terrorists. In the US these laws, which are often misunderstood, have recently come under scrutiny because of amendments to the USA Patriot Act 2001. There has been a suggestion that the US legislation provides over-broad powers for US law enforcement authorities to subpoena business records from companies connected with the US, regardless of location or jurisdiction, and that the cloud computing sector is particularly vulnerable. A&L Goodbody has produced a comprehensive article which discusses the issues around data security and cloud computing in the context of the Patriot Act and equivalent Irish laws. The fact of the matter is that there is no "cloud" over the new legislation. 

Read more - No Cloud Over the Patriot Act

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