09 May, 2019

It's all the Same - US Court of Appeals Considers When a Trademark is Generic

Having a well-known brand along with an innovative product can be a cruel mistress to many companies. As your product becomes the market leader, and your brand 'the brand' within that category, there is a risk that your trademark can come under threat of becoming generic. This writer for one has caught himself many times asking someone to "Google" something (found to not be a generic term) or referring to sticky bandages as "Band-Aids" - both of which are examples of misusing a trademark and illustrate the perils of becoming 'the brand'. This issue is rarely litigated extensively in the courts, but a recent case in the US Court of Appeals took it on again and giving us yet more insight into how the courts determine if a trademark is generic or not.

The case of Booking.com BV v USPTO concerned applications by Booking.com to register the name "BOOKING.COM" in a few variations. The marks were initially rejected by both the USPTO and the Trademark Trial and Appeal Board, which considered that the mark was generic as applied to the relevant services, finally succeeding with the District Court. The matter was ultimately appealed to the Court of Appeals, who was tasked with determining whether the mark is generic or not.

In terms of provenance of whether a mark is generic or not, according to the Court, the onus lies on the USPTO to prove this is indeed the case.

The Court then moved onto setting out the test to determine whether a mark is generic or not. The test consists of three factors: (i) identify the class of product or service to which use of the mark is relevant; (ii) identify the relevant consuming public; and (iii) determine whether the primary significance of the mark to the relevant public is as an indication of the nature of the class of the product or services to which the mark relates, which suggests that it is generic, or an indication of the source or brand, which suggests that it is not generic. Once a mark has been deemed to be generic, it cannot become distinctive.

To book or not to book - that is the question
Both parties agreed that, in relation to the first and second steps, the mark is used to identify the class or product to which it belongs (i.e. making hotel reservations for others) and the relevant purchasing public consists of consumers who use hotel reservation services offered via the internet or in person. What remains at issue is the third step, i.e. "…the public's understanding of what the term BOOKING.COM primarily refers to".

In considering the public's understanding of a term the courts may look at "…purchaser testimony, consumer surveys, listings and dictionaries, trade journals, newspapers, and other publications". To ascertain whether the same term is understood to primarily refer to the service or the source the Courts consider the proposed mark as a whole.

The Court subsequently had to consider whether the USPTO's evidence that the public use "booking.com" generically, and whether the inclusion of a top-level domain to a generic second-level domain 'booking' means the mark is necessarily generic.

The USPTO failed to show in their evidence that the mark had become generic. Even though other domain names featured the term 'booking', these alone didn't make the mark generic since the term 'booking' is used to book a multitude of things, not just hotels. Consumers, therefore, wouldn't necessarily understand the mark to automatically mean the provision of hotel booking services. Booking.com's consumer survey also indicated that over 70% of consumers identified the mark as meaning the company, and not just any booking service for hotels. The mark was descriptive, and not generic. The Court of Appeals, therefore, rejected the USPTO's first argument.

The USPTO then argued that the addition of the second-level domain ".com" meant that the mark was necessarily generic.

The Court followed by expanding on its considerations of compound marks, like Booking.com. This focusses on how the public perceives the mark as a whole, not simply as a collation of separate constituent parts. Leading from this the Court noted that the addition of ".com" doesn't in itself make a mark generic, as the public's perception would have to be considered in the light of the whole mark. Additionally, even though the mark describes the activity within the website "...it does not necessarily follow that the public commonly understands the mark to refer to the service broadly speaking". The Court, therefore, rejected the argument on the addition of ".com" making a mark generic.

The Court finally noted that, even though the mark does describe the activity of booking something via a website (specifically hotels), it doesn't prevent others from using the mark in a different context, e.g. booking a car rental or travel tickets.

The case does provide further discussion of an important facet of trademark law in the US, which isn't often touched upon by the courts. While the subject matter is somewhat established, it sets out in more detail the world of trademarks in an online environment, which is growing in importance as we become more and more entwined in an online marketplace.

24 April, 2019

It Ain't Bad - Advocate General Kotott Considers Bad Faith in TM Applications

Picking the right trademark can sometimes feel like it's the make-or-break moment for a brand, particularly when you are building a brand from nothing. Maybe taking 'inspiration' from a very well-known brand might be the boost you need, since people might naturally gravitate to your brand thinking it is another – but of course without meaning it is that one! Toeing the line of registering a trademark in bad faith is a tough one, since when is an application truly made in bad faith? This issue hasn't been touched on by the EU courts in a while, and in the lead-up to a CJEU decision Advocate General Kokott has given their two cents in a recently published opinion discussing this very issue.

The case of Koton Mağazacilik Tekstil Sanayi ve Ticaret v EUIPO concerned the application for the registration of a figurative mark by Nadal Esteban for the trademark "STYLO & KOTON", with the letters o written using symbols that look like flowers (EUTM 9917436). The application was opposed by Koton, who had earlier rights in the figurative trademark "KOTON", in which the letter o was also written using flowers. Koton argued that Mr Esteban's mark had been registered in bad faith, and should be declared invalid. After a rejection most recently by the EUIPO General Court, the matter has moved for determination by the CJEU, with the AG issuing their opinion ahead of the decision.

Under Article 52(1)(b) of the Trade Mark Regulation, an application can be declared invalid if the applicant was acting in bad faith when filing the application. For the Article to apply the mark applied for has to be identical or similar for identical or similar goods/services to the third-party mark being 'copied'. The General Court rejected Koton's argument under this premise since the mark being applied for was in relation to dissimilar good/services.

The AG emphasized that in assessing bad faith you have to, in addition to the above "…take into account all the relevant factors specific to the particular case which pertained at the time of filing the application". Factors in considering bad faith could include a lack of intention of using the mark at all, or the intention to use it in order to mislead consumers over the origin of goods or services. This could also include the attempt to register a mark knowing or thinking that registration by another would be imminent (i.e. registering iPad thinking Apple might start a line of tablets).

The AG therefore considered that based on the variety of factors raised by the AG (as discussed above) "…It is not therefore essential for recognition of bad faith that a third party is using an identical or similar sign for an identical or similar product or service capable of being confused with the sign for which registration is sought". Bad faith can include the registration of a similar or identical mark for wholly unidentical goods/services. 

The General Court had not considered Mr Esteban's earlier application as a factor when assessing bad faith, which was refused, for identical goods and services. After the EUIPO rejected his application Mr Esteban changed the goods and services included in his application and the mark was registered. The AG considered this to be an important factor and one that needed to be included. What the earlier application allows an inference to be drawn as to his intentions at the time of filing.

This highlights just how different bad faith is to other causes for invalidity, as it "…is not an inherent defect in the trade mark itself, but stems from the circumstances in which it was applied for". An application also cannot be divided into good and bad faith parts under Article 52 of the Regulation, but must be looked at as a whole in the light of bad faith. As such the AG saw that "…The fact that an application was originally filed for a trade mark for goods and services in respect of which the applicant knew or should have known that identical or similar trade marks existed may in any event be an important indication that the application to register that trade mark for other goods or services was also filed in bad faith".

The General Court also failed to properly assess whether Mr Esteban's defense to bad faith had any 'economic logic'. Having considered the new factor, and Mr Esteban's defense to bad faith, the AG concluded that the application had indeed been filed in bad faith.

While we wait for the CJEU's decision in the matter, it seems that the Advocate General has highlighted important oversights made by the General Court.

11 April, 2019

A Host of Problems - US Court of Appeals Decides on Copyright and Hosting User Uploaded Content

This writer fondly remembers the early days of the Internet when it felt like a totally lawless, open and free space where users could do whatever they wished with whatever they wanted. As the Internet has become more ubiquitous and 'corporate' this had to be reined in, and legislation has slowly caught up to how people use the Internet. One still meddling piece that the legislature and the courts have struggled with is user-uploaded content, where the service provider merely provides the platform for uploading content (infringing or not), and does not actively do it itself. With this in mind, where do you draw the line between freedom and intermediary liability when it comes to user-uploaded content? The US Court of Appeals recently issued an important decision trying to take on this issue.

The case of VHT Inc. v Zillow Group Inc. concerned Zillow, an online marketplace for real estate. VHT is a photography company who take professional pictures of houses and apartments that are then used to illustrate the location for sale to prospective buyers. VHT saves these pictures onto a centralized database, where they are given to clients under a license, which Zillow receives from various real estate related sources. VHT subsequently sued Zillow for copyright infringement for its use of VHT's pictures in its "Listing Platform" and "Digs" pages, exceeding the scope of the licenses issued to VHT's customers.

The first aspect of the case dealt with direct infringement, particularly in the context of Zillow's automated systems. While ownership in the copyright of the works can be easily established, infringement requires direction causation, i.e. volitional conduct. What this means is that "...'direct liability must be premised on conduct that can reasonably be described as the direct cause of the infringement'". What remains key here is who the ultimate selector of the content is; Zillow or the end-user. In order for Zillow to have liability VHT would have to "...show [the alleged infringer] exercised control (other than by general operation of [its website]); selected any material for upload, download, transmission, or storage; or instigated any copying, storage, or distribution" of its photos".

Zillow's systems operate on licensed feeds provided by external third parties, and the providers guarantee those licenses are up to date and authorized. The Court considered that this automated system didn't involve any volitional conduct on part of Zillow, not supporting an argument of direct infringement. This and the various rules within Zillow's systems protected it from direct infringement. Even when notices were filed on behalf of VHT, Zillow acted promptly and removed any infringing images. Overall the Court, therefore, rejected VHT's argument of direct infringement.

Even with this in mind, the jury at first instance did, however, find that Zillow's Digs service did infringe directly on VHT's rights. In considering the evidence issued to the jury, the Court overturned the jury verdict of direct infringement, as VHT had not presented substantial evidence of infringement.

A cozy one bedroom with easy street access and a unique facade
The Court then turned to the matter of fair use in relation to the Digs service. As a short primer, fair use allows for the use of copyright-protected works under certain situations. This is assessed looking at four specific factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. In short, the user would have to do something different with the work, and the more it deviates from the original the more likely it is that fair use applies (in essence), i.e. whether it is 'transformative' or not.

How Digs operated was much like a search engine, allowing users to search for photos of apartments in specific styles or configurations. Recent case law has considered search engines to typically be transformative, but that is by no means a panacea to a claim of infringement.

In assessing the Digs service's features in relation to the first factor, the Court considered that it was not a transformative use, since, while the service tagged the photos and organized them, their intended use and nature remained the same; to display space in an apartment in an artful manner. The images didn't serve a different function from what VHT had intended them for.

In terms of the second factor, the Court quickly concluded that the creativity of the photos is critical to their nature, and therefore potentially deserve a higher degree of protection. While this is true, the fact that the photos were published on the listing platform for Zillow to use did work against them in a finding of non-fair use.

For the third and fourth categories, Zillow copied the entire images, which turned the third factor against them. As they were copied in their entirety, they had a direct impact on VHT's market for licensing photos, including to Zillow. The Court, therefore, rejected Zillow's argument of fair use.

The Court then moved onto secondary liability, which can be established if "...a party (1) has knowledge of another's infringement and (2) either (a) materially contributes to or (b) induces that infringement". A material contribution to infringement would require "...actual knowledge that specific infringing material is available using its system, and can take simple measures to prevent further damage to copyrighted works, yet continues to provide access to infringing works".

Most of Zillow's activities around the works were purely passive. Any evidence adduced in relation to those activities would not, according to the Court, fulfill the requirements for the second prong (even with knowledge of infringing materials). VHT argued that Zillow needed to take proactive steps to prevent infringement, including requesting the URLs of infringing works, which the Court promptly rejected. In the end, the Court considered that no jury would be convinced of secondary liability. In equal mesure, the Court rejected VHT's argument on vicarious liability.

The case is a very interesting one, and yet again demonstrates the difficult position internet services and search engines alike are when it comes to copyright infringement.

20 March, 2019

No Sample for You – Advocate General Szpunar Scratches Music Sampling under EU Copyright

Since the 1970s music sampling has become a staple in the industry, where parts of songs are taken to create parts of new song, particularly popularised by the rap genre. The practice has been an open secret, where artists freely have taken parts from other songs without much by way of repercussions or issues from a copyright perspective, even though an artistic work has been potentially copied. The matter hasn't been widely litigated, but a recent case in the CJEU is set to determine the issue once and for all at least within Europe. Prior to the full CJEU decision, Advocate General Szpunar gave his consideration on the matter in late 2018.

The case of Pelham GmbH v Ralf Hütter and Florian Schneider-Esleben concerned the band Kraftwerk (a well-known German electronic music band), consisting of the claimants Mr Hütter and Schneider-Esleben. The respondents Mr Pelham and Mr Haas had allegedly electronically sampled approximately a two second rhythm sequence from the Kraftwerk song "Metall auf Metall" in their song "Nur mir". Kraftwerk alleged that this sampling infringed their copyright in their song, with the matter ultimately ending with the CJEU from the German courts.

The CJEU were asked six questions, which will be dealt with in turn below.

The first question in essence asked "…whether Article 2(c) of Directive 2001/29 should be interpreted as meaning that taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram… where it is taken without the latter’s permission".

After preliminary considerations, the Advocate General addressed the first question, quickly setting out that the copying of the loop would amount to a reproduction under Article 2 of the Directive. This means that the act would be an infringement of the rights afforded by the legislation to the author. However, the rights could be limited, and potential minimal (de minimis) copying could be allowed, i.e. the copying does not pose a financial threat to the original work or its author.

The Advocate General considered that "…A phonogram is not made up of small particles that are not protectable: it is protected as an indivisible whole… a sound or a word cannot be monopolised by an author as a result of its inclusion in a work". The rights afforded to them, therefore, would only be in the entire (or substantial) part of the song, not individual notes and/or sounds. Even so, the right to reproduce the song, or parts of it, are with the author alone, even though the same sound could be created and used in isolation of that work.

The Advocate General also struggled to formulate a test for de minimis copying, as it would be difficult to draw a line, and decide whether this would be a qualitative or quantitative assessment.

Although the parties (and interested third-parties, tried to argue for the de minimis threshold, the Advocate General was not convinced, and saw the answer to the first question as "…Article 2(c) of [the] Directive must be interpreted as meaning that taking an extract of a phonogram for the purpose of using it in another phonogram (sampling) infringes the exclusive right of the producer of the first phonogram to authorise or prohibit the reproduction of his phonogram within the meaning of that provision, where it is taken without the latter’s permission".

The second question referred to the Court concerned "…whether Article 9(1)(b) of Directive 2006/115 should be interpreted as meaning that a phonogram which contains extracts transferred from another phonogram (samples) is a copy of the other phonogram within the meaning of that provision".

Eric had no interest in sampling Anna's music
This question was briefly considered by the Advocate General, who saw that the meaning of a 'copy' of a work should be interpreted as something "…which incorporates all or a substantial part of the sounds of a protected phonogram and which are intended to replace lawful copies thereof". A sample does not replace the original work, but creates a new independent work. Similarly it does not incorporate all or a substantial part of the sounds of the original work.

The Advocate General therefore set out the answer to the second question as "…Article 9(1)(b) of [the] Directive must be interpreted as meaning that a phonogram which contains extracts transferred from another phonogram (samples) is not a copy of the other phonogram within the meaning of that provision".

The third question asked whether it would be possible for Member States to preclude the application of a national law to allow for the use of works without the consent of their author under Directive 2001/29.

As the exceptions included in Article 5 of the Directive don't include permitting the use of protected works for the creation of other works, the Advocate General fairly considered that "...Article 2(c) of Directive must be interpreted as precluding the application of a provision of the national law... according to which an independent work may be created in the free use of another work without the consent of the author of the work used".

The fourth question asks whether the quotation exception under Article 5(3)(d) of Directive 2001/29 applies when a extract of a song is used in another. While typically only associated with literary works, the Advocate General did concede that it is possible it could apply to musical works as well. However, for a copy to be regarded as quotation, it needs to fulfill two conditions: (i) the quotation must be ‘for purposes such as criticism or review’; and (ii) the extract quoted must be incorporated in the quoting work as such or, in any event, without modification.

Sampling clearly fails both conditions, as the use of the extract is not for criticism or review, or used without modification. The Advocate General clearly therefore answered the question in the negative.

The fifth question concerned the latitude afforded to Member States in transposing the relevant copyright directives into their respective national law. After some degree of discussion, the Advocate General answer the fifth question as "...Member States are required to ensure the protection, in their domestic law, of the exclusive rights set out in Articles 2 to 4 of Directive 2001/29, in so far as those rights can be limited only in the application of the exceptions and limitations listed exhaustively in Article 5 of that directive. Member States are nevertheless free as to the choice of form and methods which they consider appropriate to implement in order to comply with that obligation".

Finally, the Advocate General took on the sixth question, which asked "...how the fundamental rights set out in the Charter are to be taken into account when interpreting the scope of the exclusive rights of phonogram producers" under the above Directives. In effect it is asking whether there exists primacy of the freedom of the arts over the exclusive right of reproduction of phonogram producers.

After some discussion of the issue in relation to both German and EU law, the Advocate General considered that "...the exclusive right of phonogram producers under Article 2(c) of Directive 2001/29 to authorise or prohibit reproduction, in part, of their phonogram in the event of its use for sampling purposes is not contrary to the freedom of the arts as enshrined in Article 13 of the Charter.".

The case is a very interesting one, and the ultimate decision of the CJEU might have huge implications for the music industry, particularly genres that heavily rely on the use of samples in the production of new music. It remains to be seen what the CJEU say later this year, but this writer will, for one, wait for the beat drop with anticipation.

01 March, 2019

Radio Musings - My Contribution to BBC Radio on IP and the Right to Repair Movement

This writer recently had the honor and privilege of being interviewed by the BBC World Service for their Business Daily program on the business implications regarding IP on the right to repair movement and its future.

You can find the piece here: https://www.bbc.co.uk/programmes/w3cswgrc

The right to repair movement is incredibly interesting, and undoubtedly something that will impact companies and consumers in the near future. While the exact IP implications of any future legislation is still unclear, you can bet that it will have some effect, potentially even dramatic, on companies' IP and potential innovation.

06 February, 2019

McLoss - McDonald's Big Mac Trademark Revoked by EUIPO

It is not often when the 'little guy' wins in a court of law, particularly when coming up against more established and well-known brands and companies. This is even more monumental when the brand in question is near ubiquitous with an industry, namely McDonald's. Although the case has been very widely reported on in the IP community and the wider press, some nuance has been lost in the discourse on the case and what it ultimately means.

The case of Supermac's (Holdings) Ltd v McDonald's International Property Company Ltd concerned the trademark for the iconic Big Mac, which McDonald's had registered as an EU trademark in 1998 (EUTM 62638). Supermac's is an Irish fast food chain, which has been operating in Ireland since the late 1970s. After a prolonged legal fight due to the chain's name against McDonald's (unrelated to the revocation proceedings), Supermac's sought the revocation of the Big Mac trademark at the EUIPO Cancellation Division.

Supermac's argued at the EUIPO that the Big Mac trademark was not put to genuine use within the EU under Article 58 of the EU Trademark Regulation, which stipulates that "...if, within a continuous period of five years, the trade mark has not been put to genuine use in the Union in connection with the goods or services in respect of which it is registered" an EU trademark should be revoked.

What is key is that the Big Mac trademark was registered for a number of goods and services in classes 29 and 30 (covering food items), but also under class 42 for the provision of restaurant services.

The Cancellation Division first set out that genuine use requires "...actual use on the market of the registered goods and services and does not include token use for the sole purpose of preserving the rights conferred by the mark, nor use which is solely internal". Genuine use is assessed looking at all of the relevant facts and circumstances in establishing whether the commercial exploitation is real; however, this does not include commercial success or its scale.

Ronald just needed a rest after the intense legal fight
Having reviewed an extensive amount of evidence filed by McDonald's, including affidavits, marketing and internet materials, the panel considered whether they demonstrated genuine use of the Big Mac trademark. Although a great deal of evidence was filed, the panel considered that it didn't prove the extent of the use of the trademark itself. this includes looking at "...the nature of the relevant goods or services and the characteristics of the market concerned, the territorial extent of use, its commercial volume, duration and frequency".

With regards to internet materials, McDonald's failed to submit evidence on the actual data relating to visitors, their locations and the time frame in which this was done. Similarly, the Cancellation Division considered that, although sandwiches using the trademark were demonstrated in the excerpts from the proprietor's website, it was not possible to order the items online (or information on total orders placed and their details if possible). Finally, while brochures were provided as evidence, details on their circulation were not provided to the panel. Clearly McDonald's failed to submit detailed evidence on the use of its trademark, even though common sense demonstrates that the trademark is used within the EU.

The Cancellation Division concluded that "...the evidence analysed above does not provide sufficient details concerning the extent of use; other than exhibiting the sign in relation to goods which could be considered to be part of the relevant goods, these materials do not give any data for the real commercial presence of the EUTM for any of the relevant goods or services".

The proprietor therefore failed to demonstrate that the products marked with the trademark are offered for actual sale, as there is no confirmation of any commercial transactions, either online, or via brick-and-mortar operations. The trademark was deemed to not have been genuinely used within the EU, and the panel revoked the mark.

Clearly the case is an instance of poor evidence selection and provision, and undoubtedly will be appealed by McDonald's to the EU Boards of Appeal. It only goes to show that even the biggest and most resourceful entities can fall foul of a lack of preparation and consideration of evidence. To McDonald's chagrin, their competitors are already taking advantage of the opportunity.

15 January, 2019

Military Grade News - CJEU Advocate General Opines on Copyright and the Freedom of Expression

IP and freedom of speech have always had a difficult relationship. What could be freer that the ability to use any works you have seen, and share them with a wider potentially different audience, while IP seeks to protect the interests of the original author, even sometimes at the expense of the rightsholders. These issues often come to blows in the courts, and a recent case in the CJEU has brought this conversation back to the forefront. Can you protect works using copyright, even with strong issues of freedom of speech underpinning the sharing of those documents? We found out the precursor to the European answer to this question late last October.

The case of Funke Medien NRW GmbH v Federal Republic of Germany concerned military status reports drawn up for the German government on a weekly basis, which detail developments of deployed forces abroad. These reports are subsequently sent to e.g. various members of the Federal Parliament and the Ministry of Defense for briefing purposes. The documents are classed as classified and restricted. Funke Media published summaries of some of these reports, having acquired copies of them through potentially illicit means as an application to access them was rejected by the German government. They were subsequently taken to court for copyright infringement, with the matter ultimately ending with Advocate General Szpunar.

The balancing act between ensuring freedom of expression, but still protecting copyright owners' rights, is a difficult one, since the interests are often very much in competition with each other. The Court was tasked in balancing this difficult dichotomy.

Copyright through numerous exceptions allows for some freedoms when it comes to using copyright materials, including for critique, satire and review. However, the exceptions are by no means very broad (like in the US under fair use), and could be used to curtail genuine public discourse and commentary.

The Charter of Fundamental Rights of the European Union sets out the various rights enjoyed within the Union, and Article 51 asserts those rights onto any EU legislation implemented by Member States. In this case, Article 11 is in contention, which gives everyone the right of freedom of expression.

Other methods might've worked better to keep matters 'secret'
The main question that the Advocate General sought to answer is whether the grounds asserted by the German government are good enough to trump the Claimant's right to freedom of expression. The Advocate General did, however, note that as the copyright holder in this case is a Member State, it does not enjoy the same rights as the people living in that Member State. He distinguished the matter in that "...the State cannot rely on the fundamental right to property as a means of restricting another fundamental right guaranteed by the ECHR or the Charter", even though the State might have a remedy under civil rights.

The Advocate General summarized the position as "...If the State were able to invoke its individual rights, other than the public interest, in order to limit fundamental rights, the result would be the destruction of those fundamental rights". The State would have to put forward an argument under public interest to protect the works in question in order to limit the fundamental rights guaranteed in the Charter. In his view, the State fails under the public interest argument.

He then turned to the matter of copyright protection offered for the military reports. Copyright at its core aims to achieve two objectives: (i) to protect the personal relationship between the author and his work as his intellectual creation; and (ii) to enable authors to exploit their works economically.

While Germany does own the copyright in the military reports, the country itself cannot be construed as the author of those works. Even though they were drafted by State employees, strictly speaking the works themselves do not have an author at all. The Advocate General saw that, as copyright endeavors to protect the relationship between the author and the works created, the State's interests cannot be protected in works it isn't the author of. As he put succinctly: "...where there is no author, there is no copyright, in the form of either moral or property rights".

Similarly, as the State does not seek to profit from the works themselves economically, but to protect the contents from public scrutiny, the Advocate General deemed the matter outside of the remit of copyright.

In short, "...the answer should be that Article 11 of the Charter, read in conjunction with Article 52(1) thereof, must be interpreted as precluding a Member State from invoking copyright under Article 2(a) and Article 3(1) of [the] Directive in order to prevent the communication to the public, in the context of a debate concerning matters of public interest, of confidential documents emanating from that Member State. That interpretation does not prevent the Member State from applying, in compliance with EU law, other provisions of its domestic law, including those relating to the protection of confidential information".

The Advocate General clearly sought to protect the interests of those seeking to share and disseminate information, while the State attempted to curtail those efforts through incorrect means. Copyright clearly was not the appropriate vehicle to protect the legitimate interests in keeping military documents secret, and the State therefore could pursue it through other avenues. In the end, it remains to be seen what the CJEU rules in this case.