According to Sec. 23(3), of the Danish Copyright Act copies of works of art which have been transferred to others by the author, may be used in newspapers, periodicals, films and TV, when the use is of subordinate purpose in the said context. The use of a work of art, here in the form of applied art, by reproduction on packaging for foods and supermarket leaflets from convenience stores falls outside the scope of use of Sec. 23(3).
A longstanding practice of an industry can in principle restrict the author’s rights in his work in relation to what is set out in the Danish Copyright Act, but it would require strong evidence to establish the existence of such practice.
The use of a copyright-protected work even in a commercial marketing context can be of such secondary importance that – notwithstanding that the rights holder has not permitted the use – it would not amount to copyright infringement. Such non-statutory exemption to the copyright should be construed restrictively and may not influence the normal use of the work in any detrimental way. It also may not unreasonably interfere with the author’s interests. The use is not of such secondary importance if the copyright-protected work appears clearly and must be considered to constitute a material element of the reproductions.
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For a case note on this decision by Jørgen Blomqvist, Morten Rosenmeier and Jens Schovsbo see this issue of IIC at https://doi.org/10.1007/s40319-019-00887-w.
Translated by Behrang Kianzad.
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Coop Danmark A/S v. K.H. Würtz owned by Kasper Heie Würtz Directive 2001/29/EC, Arts. 2, 5; Danish Copyright Act, Secs. 2(1)–(3), 23(1)–(3), 24(1)–(3). “Würtz v. Coop”. IIC 51, 109–112 (2020). https://doi.org/10.1007/s40319-019-00888-9
- De minimis infringement
- Longstanding industry practice as restriction of copyright
- Exceptions and limitations
- Fair use
- Use being of secondary importance
- Use of works in advertisement