By Guest author

In Denmark, and in most other EU member states, furniture design is protected by copyright for 70 years from the death of the designer. However, a few member states have shorter protections for furniture. In the United Kingdom, for example, Article 52 of the Copyright Designs and Patents Act of 1988 limited the protection for furniture to 25 years from the first sale of the product. The UK has recently repealed Article 52, but there will be a transition period before the current 25-year copyright protection for furniture is replaced retroactively with the longer life-plus-70 copyright term.

Because of the 25-year copyright protection, several companies in the UK sell replicas of classic European furniture which cannot be sold in other EU member states due to copyright. Examples include Danish classics, such as the famous Egg chair, designed by Arne Jacobsen, who died in 1971.

These replicas are also sold to Danish consumers, among other things, through UK webshops. The Danish furniture industry has successfully pursued a number of legal options in Denmark against the UK sellers in order to stop this activity. A recent Danish court decision from 12 November 2014 concerns the UK company Voga Ltd. which operates a webshop, voga.com.

The Danish furniture industry obtained an injunction against Voga Ltd. which prohibits the company from selling the replica furniture in Denmark and distributing copies of the protected works to the Danish public. Until shortly before the decision of the court was handed down, Voga Ltd. was marketing its products to Danish consumers in various ways, for example by Google Adwords on Danish webpages and by assisting buyers with transportation to Denmark. This seems to be the basis for the sales injunction even though the Danish marketing activity has since stopped. The Danish furniture industry cited case C-5/11 (Donner) from the Court of Justice of European Union (CJEU) to support its case for a sales injunction against Voga Ltd.

The Danish furniture industry also demanded that Voga Ltd. stop displaying pictures of the copyrighted furniture in Denmark from its website voga.com in the UK. The court accepted this demand and imposed an injunction on Voga Ltd. to block Danish IP addresses from viewing its website, or at least the pictures of the copyrighted furniture. The reasoning of the court seems to be based on the fact that the pictures of the replica furniture are protected by copyright in Denmark, and the pictures are communicated to the Danish public through the website voga.com without the permission of the rightsholders.

The Danish court sees this as copyright infringement taking place in Denmark. However, even though certain marketing practices of Voga Ltd. may have been directed at Danish consumers, the website voga.com is not in any way targeted at Danish consumers. The language used is English, prices are in British Pounds, and the phone number of Voga is listed without the +44 country code. The only Danish connection to the website is that it can be viewed in Denmark, from Danish IP addresses, as almost any other website on the internet. At the time of writing, everything on the website is perfectly legal in the UK, where Voga Ltd. is located.

If Voga Ltd. doesn’t block Danish IP addresses from viewing its website, the next step for the Danish furniture industry could be to sue the Danish Internet Service Providers (ISPs) for a blocking injunction. The Danish furniture industry tried that in 2013, but for once the Danish courts ruled in favour of the ISP in a web-blocking case. The 2013 court ruling notes that a blocking order in a case like this would have wide-ranging consequences for the ISP, as the ISP could be met with new blocking demands whenever there is an alleged infringement on a website.

The Danish court instructed the furniture industry should sue Voga Ltd. and not the ISP. Nonetheless, it is very troubling that a Danish court (in the 12 November 2014 ruling) can impose a local blocking order on a website in another EU member state where the content is perfectly legal, just because the website can be viewed in Denmark where some of its contents infringe copyright. This has wide-ranging consequences for website operators in the EU. If the Danish court is interpreting EU law correctly in its local blocking order against Voga Ltd., then this appears to be exactly the kind of intra-EU geo-blocking that Commission Vice-President Ansip has described as going against the core principles of Europe’s Single Market. “One particular area to address will involve putting a stop to blocking of online consumers based on their location or residence. This will be about reforming and modernising copyright rules and getting rid of unjustified curbs on transfer and access to digital assets. — I am committed to getting rid of geo-blocking,” he said in a speech in the European Parliament plenary session on 26 November.

“Replica businesses” beware – new copyright laws from….when? (22.09.2014)
http://www.lexology.com/library/detail.aspx?g=0295aed0-8fbd-4edb-bc62-5b6af0d760cb

Website of Voga Ltd
http://www.voga.com

Court order from the Maritime and Commercial High Court in the case against Voga Ltd. (in Danish only, 12.11.2014)
http://www.soeoghandelsretten.dk/soeoghandelsretten/nyheder/Pages/A-0025-14_kendelse.aspx

(Contribution by Jesper Lund, EDRi-member IT-Pol, Denmark)

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