Compliance: Legal Context for Fair Use of Copyrighted Materials in the EU

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Compliance
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In some countries, especially in Germany, retailers are sometimes confronted with cease and desist letters under local law from a brand owner’s legal representative, with regard to image, video and other copyrighted materials already released on the internet by the respective brand owners.  Do these cease and desist letters have (still) any legal ground in the EU? And what are Icecat’s policies regarding to this?

Legal Context for Fair Use of Copyrighted Materials

In a legal case regarding the reuse of copyrighted materials that are already published on the internet, the European Court of Justice (C‑466-12, 13th Feb 2014) has reasoned that a new communication of already published materials on the internet (the same “public”), even if these materials appear to be included in a different website, as such is not an infringement of copyrights. In this, and subsequent European Court rulings, it was also confirmed that European law and regulation have prevalence over local, national laws and regulation regarding intellectual property rights, and that local “on top of” laws and regulations are not applicable, as this would disturb the level playing field assumed in the single EU market.

This shows that there is nowadays a kind of permissive legal framework for a European pendant of the “Fair Use of Copyrighted Materials Act”, as known in the US legal context. Regarding national cease and desist letters to EU resellers re-using a brand’s images and other copyrighted materials as already published on the internet:

  • not local, f.e. German, but European laws are applicable
  • it’s unlikely that in a European Court it would be seen as a copyright infringement

Nevertheless, Icecat advises her ecommerce relations to ask permission to a brand owner/copyrights holder, especially before re-publishing 3rd party copyrighted materials outside the internet. And, in general, Icecat strifes to be compliant with the syndication policies of brands, even if the law doesn’t oblige Icecat, as long as this can not be seen as an infringement on, especially, anti trust frameworks.

NOTE: although the known EU Court cases are about linking and embedding, the EU regulation is tech/implementation neutral: two cumulative criteria need to be both met before one can speak of copyright infringement: 1) Is there a new communication of the copyrighted materials? 2) Is the communication to a new public? (where the internet is seen as one public).

EU anti-trust investigation into the e-commerce market

Further, the European Commission has announced an ongoing investigation into the EU ecommerce market, in which explicitly brand owners’ product content syndication policies are looked into. The objective is to detect unfair limitations of competition or other disturbances of the functioning of the (European) internal market. This implies, that brand owners need to be careful and balanced regarding their product content syndication policies, not just regarding avoiding vertical price binding policies. It is sometimes observed that product content syndication policies are effectively used as a way to hamper online resellers selling a brand’s products online. Icecat advises brands to avoid the perception of hampering (part of its) online channel through cease and desists letters that might also be at odds with “fair use”-like laws and regulations, and instead formulate an authorized reseller policy in which certain rich media assets are exclusive for such preferred channel partners.

Icecat licensed by its sponsoring brands (Open Icecat)

Icecat obtained content licenses and permissions from hundreds of global brand owners, and strifes to obtain licenses from any brand owners that has products on sales online. On the Icecat website you will find the image and other materials of the 450+ brand clients who have licensed Icecat to syndicate their materials (globally). Further, for Icecat brand clients, we adopt and implement their content syndication policies. These content syndication policies can be

  • permissive or “open”, f.e., in case of a ubiquitous content strategy
  • balanced, f.e. by distinguishing between content packages for authorized versus non-authorized channel partners
  • private, if only exclusively authorized resellers are allowed to access a brand owner’s product content.

Does licensing by an Open Icecat sponsor automatically mean that an online reseller using the data through Open Icecat is fully licensed to use a brand’s copyrighted materials? No. A brand can have still limited its license to certain countries, product categories, and type of media. A brand can also decide to remove products and materials from Open Icecat. However, it still depends on the local legal context, for example the EU context as shortly described above, what this actually means in a specific case of an individual reseller.

Balanced approach

From a marketing and PR objective, we advise a brand owners to follow an “open” policy, when a brand wants to maximize online views for a brand’s content, and generate most sales through its e-channel. In case, that a brand has a more exclusive distribution policy, we advise to strike the right balance between protecting a brand’s market positioning, “fair use” of copyrighted materials as already published on the internet and the legal Anti-Trust liabilities of an unfair limitation of competition or other disturbances of the functioning of (for example, the European internal) market.

For our brand clients, we often implement therefore a balanced policy in which basic content (incl. low-res web images) is made available for all, but f.e., rich media content (high res images, videos, 3D animations) are exclusively made available to authorized resellers. For such clients, we activate DRM (Digital Rights Management) functionality, to technically apply this exclusivity.

For a limited number of brand clients, we have implemented completely restricted and exclusive content syndication policies, for example in case that they sell purely through a strictly controlled professional channel of service providers.

Full Icecat excludes 3rd party copyrighted materials

Regarding products of brands that don’t belong to Icecat’s clients, Icecat can still be requested by its e-commerce clients to facilitate the creation of  product data-sheets in which specs are included conforming the Icecat data model, for which Icecat owns the copyrights. Only these Icecat-owned data is licensed by Icecat to third parties, what is of course allowed.

NOTE: As part of its online price monitor, Icecat can show prices of resellers on its website, but these are not necessarily clients of Icecat.

For the avoidance of doubt, and even if it would be legal under EU and other laws and regulation, Icecat is excluding, in any of its paid (Full Icecat) licenses, “3rd party copyrighted materials” explicitly. So,  even as these materials can be found publicly on the internet, Icecat is excluding these from its licenses, and advises users to ask permission to brand owners before publishing these, depending on the local legal context.

Nevertheless, links to materials that can be found on the internet can be included within Icecat’s interfaces, what as such is not a breach of copyrights independent of where these materials are subsequently shown (see the earlier referred to Court of Justice ruling C-466/12). Compare in this respect also Google Image Search.

If there’s any question or remark, feel feel to contact us.


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Avatar for Martijn Hoogeveen

Founder and CEO of Icecat NV. Investor. Ph.D.

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