Dram shop liability is capped at $280,810. C.R.S. §12-47-801(3)(c).
Damages of an injured self-employed contractor who does not have work comp insurance may be capped at $15,000 if damages would have been recoverable under a work comp policy of insurance. Cavaleri v. Anderson, 298 P.3d 237 (Colo. Ct. App. 2012).
No strict liability and no presumption of negligence for cattle/livestock on highway or off owner’s property. C.R.S. §35-46-101, et seq. State has duty to erect fences along state highways in agricultural areas to protect highway motorists. C.R.S. §35-46-111. State v. Moldovan, 842 P.2d 220 (Colo. 1992). Injured party must prove owner was negligent in failing to contain animal. No person shall recover damages for trespasser injury to any garden or crops unless they were protected by a lawful fence. C.R.S. §35-46-102(1).
C.R.S. §13-21-111.6. Medical expenses billed v. paid. Evidence of paid amount is not admissible at trial. Crossgrove v. Walmart Stores, Inc., 276 P.3d 562 (Colo. 2012). C.R.S. §10-1-135(10)(a).
Colorado has modified comparative negligence. π must prove Δ’s negligence is > than π’s negligence. 50%(π)/50%(Δ) = no recovery for π. Where Δ’s negligence exceeds π’s negligence, π recovers only Δ’s % of negligence. Juries are advised of the comparative negligence rule and that 50/50 finding = defense verdict.
Multiple Δs or designated non-parties negligence will be compared to π’s. Defense verdict only occurs if negligence of π > than the combined total negligence of Δs and designated non-parties.
Most condominiums and townhomes in Colorado are governed by the Colorado Common Interest Ownership Act (CCIOA). C.R.S. §38-33.3-101, et seq. Declarations, By-Laws and Covenants also control liability and defenses.
Construction Defect Action Reform Act (CDARA) C.R.S. §13-80-802, et seq. CDARA modified in 2003, called CDARA II, which applies to all CD litigation claims on or after 4/25/2003. C.R.S. §§13-20-802 through 807.
Mandatory Pre-suit Notice of Claim (NOC). Requires πs to notify construction professional of existence of claim, in writing, no later than 75 days (90 days for commercial) before action against construction professional. C.R.S. §13-20-803.5. Process is required for actions against third-party subcontractors, as well. SOL is tolled during the notice of claim (NOC) process. C.R.S. §13-20-805.
Description of CD in reasonable detail is required for NOC.
Property Inspection. Following NOC, construction professional may request inspection of claim defect. C.R.S. §13-20-803.5(2).
Offer to pay or make repairs – w/in 30 days after inspection completed for residential properties (45 for comm.). Construction professional may offer to resolve claim by paying money or by agreeing to remedy CD claims. C.R.S. §13-20-803.5(3).
Claimant’s response to const. professional’s offer. Clmt. must accept in writing contractor’s offer to repair or to resolve claim no later than 15 days after receipt of offer. C.R.S. §13-20-803.5(4). Alternatively, Clmt. may proceed with litigation.
Limitations on negligence claims in CD cases. In absence of actual damage to real or personal property, loss of use of property, bodily injury or wrongful death or a risk of bodily injury or death to the occupants of residential property, Clmt. cannot sue for failure to construct in substantial compliance with applicable building code or industry standard. C.R.S. §13-20-804.
Statute of Repose – C.R.S. §13-80-104(2) creates two periods of repose: (1) 6-year “conditional”; and (2) an 8-year “absolute”. If during 5th or 6th year after substantial completion, Clmt. discovers a defect, Clmt. gets additional 2 years from the date of actual or constructive knowledge. Thus, some suits may commence during 7th or 8th year following substantial completion.
Indemnity Clause Invalid - C.R.S. §13-21-111.5(6)(b) holds that a provision in a construction contract that requires a person to indemnify another person for damage caused by the negligence of the indemnitee or any third party under the control of the indemnitee is void.
Repair Costs may exceed mkt. value if not unreasonable, for residential property only; this is not considered economic waste in Colo. Board of County Comm’rs v. Slovek, 723 P.2d 1309 (Colo. 1986).
Emotional Distress Damages generally not available in property damage case, but are available in residential real estate and CD cases.
Duties of Builder – Builder owes duty of reasonable care in construction of home and improvements. Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041, 1045 (Colo. 1983).
Duties of Subcontractor – Subs have an “independent duty to act without negligence in the construction of homes.” A.C. Excavating v. Yacht Club II Homeowner’s Association, Inc., 114 P.3d 863 (Colo. 2005).
Vicarious liability for Subs – See Cosmopolitan Homes, supra, Wright v. Creative Corp., 498 P.2d 1179, 1182-83 (Colo. Ct. App. 1972).
Court approval for the settlement of a minor’s claim is advised for any settlement over $5,000, and required for any net settlement over $10,000 and requires a conservatorship. C.R.S. §15-14-101, et seq.
Small Claims – $7,500 limit. C.R.S. §13-6-403(i). π cannot be represented by lawyer. Δ who wishes to be represented by lawyer must make request no later than seven days before hearing. No jury. Small Claims Court Rules of Procedure (relaxed rules of evidence and no discovery or disclosure) are utilized.
County Court –$15,000 limit. C.R.S. §13-6-104(1). Jury trial available. No discovery without court approval. No disclosure practice. No motion practice without leave of court.
District Court – Claims of any value. Dec. actions. No minimum limit. All cases initially subject to presumptive simplified civil procedure (C.R.C.P. 16.1), which has detailed disclosures of witness testimony and exhibits; limits discovery to IME; and limits recovery to $100K. Either party may opt out.
Permitted. Dec. action on issue of insurance coverage is stayed if resolution of coverage issue requires fact finding and determination that would potentially prejudice the insured in pending tort litigation.
Colorado no longer has a “one bite” rule for serious bodily injury or death. C.R.S. §13-21-124 (2013) (“dog bite statute”). The dog bite statute allows victim to maintain an action for economic damages regardless of a dog’s vicious propensity or the owner’s knowledge or lack of knowledge about them. If the owner had knowledge or notice of a dog’s dangerous propensities, then the victim may move for the animal to be euthanized.
The dog bite statute interplays with the Colorado Premises Liability Act (PLA) (C.R.S. §13-21-115) (2012) when the dog bite occurs on property owned by a dog owner. The dog bite statute applies to dog bites on public property or on property owned by someone (i.e., tenant/renter) other than the dog owner. The dog bite statute provides additional defenses to the PLA where the injury is on the dog owner’s property and where the π was unlawfully on the property, the property had a posted “beware of dog” or “no trespassing” sign or the dog is working as a hunting, herding, or farm/ranch dog. C.R.S. §13-21-124(5). For damages other than economic, the one bite rule still applies.
The dog bite statute applies to π’s recovery of economic damages only. It imposes strict liability for economic damages incurred as a result of a dog bite. Economic damages are not recoverable for a π who was unlawfully on the property where the bite occurred – public or private property. Private landowners are exempt from liability if they have posted a “beware of dog” or “no trespassing” sign. If π knows that a dog is present on the property, a federal court judge has ruled that the landowner is likewise exempt from liability, just as if a sign had been posted. See Ganser v. Ganser, 2008 U.S. Dist LEXIS 64010 (D. Colo. Aug. 21, 2008).
Vendor not liable for injury to 3rd party unless liquor was willfully and knowingly served to person under age 21 or to visibly intoxicated person. Social host is liable only if knowingly serves a person under age 21, or knowingly provides a person under 21 a place to consume alcohol. Damage cap $280,810. C.R.S. §12-47-801(3)(c). One year statute of limitations from date of sale or service of alcoholic beverages.
Parental Immunity – Children cannot sue their parents for injuries caused by a parent unless the parent’s negligence occurred in the course of a business activity, or if the parent behavior was willful and wanton or intentional.
No Spousal Immunity. Either spouse may sue the other for all torts.
Employer and Co-Employee Immunity – Employee injured in course and scope of employment cannot bring tort action against either employer or a co-employee. WC = sole remedy.
Governmental Immunity – Applicable except for types of conduct where immunity has been specifically waived by statute, i.e., operation of a government-owned vehicle by a government employee and negligent design, operation or maintenance of government property.
Insurer may disclaim coverage if insured fails to notify the insurer of claim or suit as required by insurance contract. However, insurer must prove it has been prejudiced by the failure to notify. Friedland v. Travelers Indemnity Co., 105 P.3d 639 (Colo. 2005); extended to the “no voluntary payment” clause, Stresscon Corporation v. Travelers Property Casualty Company of America, (Colo. Ct. App. 2013) LEXIS 1451 (pending). Otherwise, failure is excused and coverage remains. Id.
For Personal Injury: C.R.S. §13-21-101 holds that simple interest of 9% is awardable from the time the injury accrues until the day before suit is filed, and interest at the rate of 9% compounded annually is awardable from the date suit is filed until the date the judgment is satisfied.
For Other Claims: C.R.S. §5-12-102 holds that interest is awardable on all other claims at the rate of 8% compounded annually from the date the action accrued.
Pre-judgment interest included in policy limits. Post-judgment interest is in excess of policy limits. C.R.S. §13-21-101.
There is none unless conspiracy or joint venture exists. C.R.S. §13-21-111.5(4). In case of multiple parties, each party is liable to π only for that party’s own % of negligence. Δ cannot be responsible to π for amt. > than his % of negligence. As such, contribution and non-contractual indemnity no longer exist in person injury suits. C.R.S. §13-21-111.5(1).
Permitted. Consortium claim is derivative for the purposes of comparative negligence. Consortium claim must be resolved specifically or it may survive settlement of main claim. Lee v. Colo. Dept. of Health, 718 P.2d 221, 232 (Colo. 1986).
ADR – Colorado judges can order ADR (non-binding settlement or mediation conference) pursuant to C.R.S. §§ 13-22-311 and 313 and C.R.C.P. 16(b)(6). Most courts will issue an order.
Children under age 7 are presumed incapable of negligence. Children 7 years of age and older are held to the std. of reasonable conduct of a child of similar age. CJI-CIV. 9:9 (CLE ed. 2013).
In a civil case, the fact finder may consider the degree or % of negligence or fault of a person not a party to the action. C.R.S. §13-21-111.5(3)(a). Designation must be made w/in 90 days of the commencement of the action unless the court determines a longer period is necessary. C.R.S. §13-21-111.5(3)(b). Designees may include persons who are deceased, unidentified or immune from suit. If π fails, or is unable, to bring in a designated non-party as a Δ, and that non-party is assessed a % of negligence, the Δ is responsible to the π only for his own % of fault, not that of the non-party.
This is not an offer of judgment. Colorado permits any party to extend a statutory offer in writing by one party to another during litigation. C.R.S. §13-17-202. Prevailing parties receive awarded costs at the conclusion of the litigation. However, if π rejects a SOS and the judgment entered for π (verdict plus costs and interest up to time of offer) is < the amount of the SOS, π is not allowed to recover costs beyond the SOS offer date and must pay the costs of Δ accruing after the offer. C.R.S. §13-17-202(1)(a)(ii). If π receives an award from the jury, π is still entitled to costs as prevailing party up through the date of the statutory offer of settlement. Id. C.R.S. §13-17-202(1)(a)(ii).
Offer is open for 14 days and must be made in writing. In cases with multiple πs and/or multiple Ds, offer must be specific as to each party. Askew v. Gerace, 851 P.2d 199 (Colo. Ct. App. 1992) rev’d on other grounds. Withdrawal of the offer must be in writing.
Colorado case law permits offers of settlements to be inclusive of all subrogation interests and/or liens that may exist upon or against any settlement or judgment in the case. Strunk v. Goldberg, 258 P.3d 334 (Colo. Ct. App. 2011).
F.R.C.P. 54(d) governs the award of costs in federal court, and the costs that are recoverable under that rule are very limited. For example, the costs recoverable for an expert witness are limited to $40/day for each day the witness testifies at trial. 28 USCA §1821.
A property owner’s liability is determined by the status of the π as a trespasser, licensee or invitee. C.R.S. §13-21-115. The status of a π is determined by the court pre-trial. C.R.S. §13-21-115(4). “Landowner” includes (a) an authorized agent or person in possession of real property (title owner or property manager); and (b) a “person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” C.R.S. §13-21-115(1). A landowner could be a subcontractor, a service provider or any other entity doing work on real property and leaving it in a negligent condition. See Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1221 (Colo. 2002).
The Colorado Premises Liability Act applies to more than activities and circumstances that are directly and inherently related to the land, and extends to condition, activities, and circumstances on the property that the landowner is liable for in its legal capacity as a landowner. Larrieu v. Best Buy, 303 P.3rd 558 (Colo. 2013).
Trespasser – May recover only for damages willfully or deliberately caused by landowner. A Trespasser is a person who enters or remains on the land of another without the landowner's express or implied consent.
By landowner’s unreasonable failure to warn of dangers not created by landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.
A Licensee is a person who enters or remains on the land of another for the licensee's own convenience or to advance his own interests, pursuant to the landowner permission or consent. "Licensee" includes a social guest.
Invitee – May recover for damages caused by landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known. C.R.S. §13-21-115(3)(a-c).
An Invitee is a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner's express or implied representation that the public is requested, expected, or intended to enter or remain.
Cannot exceed amount of actual damages except that damages can be trebled by the court following a post-trial hearing if court determines that willful and wanton conduct, which led to punitive damages, has not ceased. C.R.S. §13-21-102.
Note: π may not include a claim for exemplary damages in the initial complaint. π may move to amend complaint following initial CRCP Rule 26(a)(1) disclosures if π establishes prima facie proof of a triable issue. C.R.S. §13-21-102(1.5)(a).
While an award of punitive damages can only be based on conduct arising before the injury, evidence of post-accident conduct can be admissible to demonstrate the reprehensible nature of the defendant’s actions in order to prove willful and wanton conduct. Quest Services Corp. v. Blood, 252 P.3d 1071 (Colo. 2011).
Punitive damages are not permitted in a wrongful death action. Burron’s Estate v. Edwards, 594 P.2d 1064 (Colo. Ct. App. 1979).
An answer or other responsive pleading/motion must be filed within 21 days if Δ is served in Colorado. If a Δ is served outside Colorado, rule allows 35 days to file. Id. C.R.C.P. 12(a). County Court and Small Claims Court specific response date is specified on summons.
Assault, battery, libel, slander = one year. C.R.S. §13-80-103(1)(a).
Tort, including negligence and premises liability (except automobile liability) = two years. C.R.S. §13-80-102(a).
Wrongful death = two years. C.R.S. §13-80-102(1)(d).
Bodily injury and property damage arising from auto accident = three years. C.R.S. §13-80-101(1)(n)(i).
Fraud, misrepresentation and concealment = three years. C.R.S. §13-80-101(1)(c).
Breach of trust or breach of fiduciary duty = three years. C.R.S. §13-80-101(1)(f).
Contract liability = three years. C.R.S. §13-80-101(1)(a).
Construction Defect = see CD sec.
There are 64 counties in Colorado. Tort case venue is proper in the county where the Δ resides or where the tort occurred. C.R.C.P. 98(c). Generally, challenge to venue must occur by motion before filing an answer, otherwise it is waived. C.R.C.P. 98(e). However, a Motion to Change Venue can be filed any time before a case is set for trial (1) if a consumer contract is involved, (2) for the convenience of the witnesses, or (3) when a party cannot otherwise get a fair trial. CRCP 98(e). Venue is an important consideration for Δs in Colorado as some counties are more liberal than others.


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The U.S. Supreme Court: the highest court in the land. Their job: to decide the constitutionality of cases. But is that what they are really doing? Can we trust that their decisions are just? Two important cases in history can help answer this question. A 1896 U.S. Supreme Court case, Plessy v. Ferguson, made facilities and schools separate based on race. In another case in 1954, Brown v. Board of Education, the court reversed its decision and said that separate was not equal. These two cases teach two lessons about the U.S. Supreme Court. Plessy shows that our justice system has failed at times to establish justice. Brown shows that even though the Court rules justly, justice isn’t guaranteed.
Many events led up to Plessy v. Ferguson. For example: after the Congress withdrew federal troops from the South in 1877, conditions for blacks deteriorated. The government pushed blacks into an inferior position. The government took action to prevent blacks from voting immediately.
They embarked poll taxes, “grandfather clauses”. They also segregated on trains, in parks, schools, restaurants, theaters, swimming pools, and even cemeteries. If blacks broke these segregation laws, they were likely to end up either in prison or dead!
The case of Plessy v. Ferguson was a very important case in American History because it enforced segregation even making it legal, and made segregation a concrete reality for the people of the United States. It began with a man called Homer Plessy. Plessy was 7/8 white and only had 1/8 drop of black blood in him, but under Louisiana law, was considered black. In 1890, Louisiana passed a law providing that “all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.” Plessy believed that the law was unjust and so he challenged the law by refusing to leave the white railroad car. He was arrested and taken to trial. At this trial he argued that the Separate Car Act violated the Thirteenth and Fourteenth Amendments to the Constitution. But he was found guilty. Plessy then appealed the decision to the Supreme Court of Louisiana. Again his case was upheld. Plessy appealed again in 1896 to the Supreme Court of the United States. Homer Plessy was found guilty once again. The impact of the court’s decision was a harsh one. It created a reality that was a nightmare to many. Their lives would be changed dramatically. They would officially be separated and considered low down in society.
Plessy v. Ferguson was the law of the land until 1954, when it was finally, successfully overturned by Brown v. Board of Education. In 1954, a little girl named Linda Brown in Topeka, Kansas had to walk 5 miles to school. She didn’t get recess and could not play with any of the other children who were all white. Her parents filed a case to the U.S. Supreme Court saying that there is no way blacks and whites could get equal education if they were separated. The court ruled that separate is not equal.
The amount of time between Plessy v. Ferguson and Brown v. Board of Education shows just how long it took to get justice for blacks from the Supreme Court. It amazes me that our government could even question if blacks have the right to justice. It should be basic knowledge for us to know that it is wrong to treat any people so unjustly. Just to prove my point here are some questions you can ask yourself: are blacks human beings just like whites? Do blacks and whites both have feelings and needs? And finally, is the only difference between blacks and whites is that they have a different complexion? I am confused as to why so many people, including Justices on our Supreme Court would not answer yes to all these questions. How could anyone who had any intelligence think it was acceptable to treat blacks differently?
Fortunately the Court did come to its senses in Brown v. Board of Education. Yet just because The U.S. Supreme Court ruled that separate is not equal it did not mean that blacks were automatically treated equally. After Brown v. Board of Education happened, there needed to be the Civil Rights Movement, in which many people were involved to push society to change. Two people who led the Civil Rights Movement were Martin Luther King Jr. and Rosa Parks. We must acknowledge that it wasn’t only those people, there were others working and helping the same cause. There were many ways that they impacted The Civil Rights Movement. They gave speeches, wrote letters, led marches, held meetings and many other strategies. They also endured mental and physical hardships. Only through the Civil Rights Movement did the promise of Brown actually get achieved. These people were poor, wealthy, high class, low class, black, some white, short and tall. Basically, there was a wide range of different kinds of people. Not everyone automatically changed their frame of mind when The U.S. Supreme Court ruled separate is not equal. There were still many people out there who were racist and wanted to keep blacks in an inferior position.

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Jonathan’s practice focuses on patent prosecution and litigation, freedom to operate analysis, U.S. and international strategic patent portfolio planning and management, as well as counseling clients on strategic partnerships and technology acquisitions. Having worked in the satellite communications industry on commercial spacecraft, the electronics industry on high-tech audio and electronics, and various Machine Learning applications of Artificial Intelligence qualifies Jonathan to work on all things "technologically complex." He can write about them for any audience: business folk, engineers, PTO examiners, judges and juries. When it comes to drafting patent applications, formulating arguments for high-stakes litigations, and rendering opinions on issues of patent infringement, validity and enforceability, Jonathan never leaves a stone unturned. He combines that with some serious agreement drafting and negotiating skills.
Jonathan is a regular CLE instructor for the Practicing Law Institute (PLI) and in-house counsel. Jonathan also moonlights as a mixed martial artist and on weekends goes mountain bike riding.
Blue Spike, LLC v. Spotify USA Inc. et al. (CDCA). Patent infringement dispute involving steganographic ciphers and data scrambling.
Dicta-Direct, LLC v. Speech Processing Solutions USA Inc. (GAND). Patent infringement dispute involving speech to text conversion and language translation services.
IPC Systems, Inc. v. Cloud 9 Tech. (D. of Del.). Patent infringement dispute involving web-based trading turrets and their use in trading communication systems as well as misappropriation of trade secrets claims.
Cloud9 Tech. v. IPC Systems (PTAB). CBM and IPR contested proceedings involving specialized communication systems.
CG Tech. Development, LLC, et al. v. DraftKings, Inc. (D. Nev. & D. of Del.). Patent infringement dispute and related IPR contested proceedings involving online contests.
Canon adv. Intellectual Ventures (D. Del). Patent infringement dispute involving various aspects of printer, scanner, digital camera, and Wi-Fi technologies.
Sirona Dental Systems v. Danaher (D. Del). Patent infringement dispute involving CMOS-based digital dental imaging products.
All Media Guide adv. MOEAC (W.D. Wisc.). Patent infringement dispute involving software for managing digital music.
IBM adv. Sky Technologies. Claims of patent infringement, trade secret misappropriation, breach of contract, conversion and unjust enrichment relating to e-commerce software.
Donnelly Corporation v. Johnson Controls, Inc. et al. (W.D. Mich.). Patent infringement dispute involving automotive electrochromic rearview compass mirrors.

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Home>Intellectual Property Issues>Do Treaties Imposing Mandatory Exceptions to Copyright Violate International Copyright Norms?
Do Treaties Imposing Mandatory Exceptions to Copyright Violate International Copyright Norms?
The World Intellectual Property Organization (WIPO) is discussing a possible treaty that would obligate member states to adopt exceptions and limitations to assist the access of the visually impaired to works of authorship.1 The U.S. Patent and Trademark Office and the Copyright Office in 2009 solicited comments on one of the proposed treaties. The U.S. government at the WIPO Standing Committee on Copyright and Related Rights (SCCRR) in December 2009 pronounced itself open to a variety of international efforts to influence countries to enhance the access of the visually impaired to copyrighted works, from model laws to a multilateral binding instrument.2 Because further treaties designed to limit the scope of copyright protection may be in the offing,3 it is appropriate to step back from the particular issues confronting the visually impaired to consider more broadly whether treaties imposing mandatory exceptions and limitations, whatever their substantive objectives, are in fact compatible with member states’ obligations under the Berne Convention and the reinforcement of these obligations through the TRIPs Accord. Careful examination of the structure and policies underlying the Berne Convention suggests a fundamental tension between that Convention’s norms and treaties whose goal is to limit the scope of copyright.
Art. 20 of the Berne Convention allows member states “to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” (emphasis supplied). Thus agreements among member states must not establish a level of protection inferior to that set by the Convention.
If the exceptions the new treaty would mandate are compatible with the “three-step test” framework for exceptions to the reproduction right set out in Art. 9(2) of the Berne Convention, and with other Berne exceptions or limitations on that right or other rights, then, at first blush, there would seem to be no problem with making obligatory those exceptions that are already permissible. For example, under this view, it would not be contrary to the Convention to enter into an agreement requiring member states to subject foreign literary or artistic works to free use “by way of illustration in publications, broadcasts or sound or visual recordings for teaching,” under the conditions set out in Berne Art. 10(2).
1. The substantive aspects of the Berne Convention (covered subject matter, minimum rights, permissible exceptions and limitations) apply only to foreign works. Art. 5(3) provides that “Protection in the country of origin is governed by domestic law.” Thus, Berne does not affect the domestic treatment of local works. Any new agreement that purports to make Berne exceptions mandatory will not, without more, impose those exceptions on member states’ own works. Berne’s explicit forbearance from interfering in domestic law gives rise to the first problem: If member states impose the exceptions only on foreign works, member states will violate the Berne Arts. 5(2) and 19 principle of national treatment, which forbids member states from according less protection to foreign-member-state works than to local works. Assuming that exceptions and limitations that would have been Berne-permissible had they applied to foreign works already existed in local laws, then to apply them to foreign works would create no imbalance between local and foreign works with respect to national treatment. But if a Berne-compatible exception were made mandatory for foreign works, without imposing a corresponding exception on local works, then foreign works would receive worse treatment than local works. This would be inconsistent with the principle of national treatment.
Thus, mandatory exceptions unaccompanied by equivalent exceptions for country of origin works are contrary to the spirit and structure of the Berne Convention, and therefore are “contrary to this Convention” within the meaning of Art. 20. Member states could avoid the disparity of treatment if they enacted equivalent domestic copyright exceptions. But in that event, there would be no need for mandatory exceptions at the multilateral level because the principle of national treatment would require member states to apply their Berne-compatible domestic exceptions to foreign works without any additional instrument. The following consequences therefore arise. Without concomitant limitations in domestic law, mandatory exceptions to the protection of foreign works are ineffective under Arts. 5(1) and 19. With concomitant limitations in domestic law, mandatory (Berne-compatible) limitations on the protection of foreign works are unnecessary.
2. Perhaps, even if unnecessary, a treaty requiring member states to incorporate mandatory exceptions into their domestic law would be desirable. Arguably, if member states would not on their own provide such limitations, an international obligation should do the job, although one might wonder why a member state unwilling on its own to implement publicly beneficial domestic exceptions, would, faced with the requisite treaty, in fact change its laws. Even assuming the (questionable) factual basis prompting the adoption of mandatory exceptions, their implementation through a treaty would nonetheless contravene a key feature of the Berne structure. By leaving domestic protection to the country of origin, Berne preserves the local lawmaking autonomy of its member states. So long as they extend Berne minimum protection to Union works, member states remain free to determine the scope of their own cultural policies. In the realm of limitations on copyright, member states may gauge the level of protection their own authors require in light of countervailing local needs and changing situations in the future.
Hence the second problem: A treaty binding member states to implement internally a supranational, worldwide standard of copyright limitations would deprive those states of the autonomy and flexibility (otherwise built into Berne) subsequently to modify or eliminate those exceptions should local experience prove them unwarranted; any change to domestic law would require revising the international agreement, or a withdrawal from the treaty, which is in fact both extremely unlikely and politically difficult. Perhaps the negotiation process will inevitably yield a text that is too vague and general to impose real constraints on member states’ local flexibility, but such an outcome is undesirable for two reasons. First, the instrument will lack the bite some member states claim to require to enact the aspired exceptions, and second, if the standards are in fact meaningless, all that will remain will be the symbolism of a treaty dedicated to the diminution of authors’ rights.
3. This observation brings us to the third, and in the overall scheme of international copyright, most significant problem: The envisioned mandatory exceptions treaties are profoundly inconsistent with the history and spirit of the Berne Convention because they would, for the first time, create an international instrument whose sole purpose is to diminish the rights of authors. Proponents of mandatory exceptions assert that a treaty will introduce “balance” into an allegedly monolithic pro-author/rightholder regime of Berne (and TRIPs). But the premise is false. Berne and TRIPs already include “balancing” features, such as exclusions from the subject matter of copyright, a panoply of permissible exceptions, most notably the “three-step test,” which allows member states broad leeway to allow copying “in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author,” and the Art. 10(1) requirement that member states permit “quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.” The Berne-TRIPs package therefore, while primarily designed to further the international circulation of works of authorship by ensuring effective protection, nonetheless from its inception has taken into account countervailing considerations of free expression and access to culture. One of the original Framers of the Berne Convention, Swiss jurist Numa Droz, recognized this in 1884 when he emphasized that “limits to absolute protection are rightly set by the public interest.”4 The one-sided treaty is the one WIPO is now considering. It would be a fateful step for WIPO to adopt international norms conceived not merely for the primary purpose, but for the single objective of cutting back on the protection of authors.
* This column derives from a report still in preparation, with Prof. Sam Ricketson and Dr. Silke von Lewinski. I do not claim that the column fully represents the views of my co-authors on the report. Thanks for further comments to my colleague June Besek, executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School.
1. See, e.g., SCCRR/22/16 (Nov. 4, 2011) (Chair’s proposal for an international instrument on limitations and exceptions for persons with print disabilities), http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=189521.
2. See documents collected at http://www.copyright.gov/docs/sccr/. This author, together with June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at Columbia Law School, filed comments, http://www.copyright.gov/docs/sccr/comments/2009/comments-2/ginsburg-besek-columbia-law-school.pdf.
3. See treaty proposals on exceptions and limitations for libraries and archives, and for educational and research institutions, discussed in World Intellectual Property Organization (WIPO), Standing Committee on Copyright and Related Rights (SCCRR), Twenty-Third Session, Geneva, Nov. 21-25, 28, 29 and Dec. 2, 2011, http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=190903.
4. Actes du Congrès de Berne de 1884, 67.
By Jane C. Ginsburg|2018-07-03T17:34:26-04:00February 28th, 2012|Intellectual Property Issues|Comments Off on Do Treaties Imposing Mandatory Exceptions to Copyright Violate International Copyright Norms?

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We appreciate you visiting and using our websites, our online shops, our applications and our social media pages (called the “Sites”). We trust you will enjoy learning more about LINDT & SPRÜNGLI, the story of our Brands and our products and services.
1.	WHEN DOES THIS PRIVACY NOTICE APPLY?
2.	HOW DO YOU CONSENT?
3.	HOW IS DATA COLLECTED BY LINDT & SPRÜNGLI?
- Personal contact information such as name, address, email, phone number, picture and demographic information, including age, gender, household or location.
- Account login information if you open an account with us or your details when you fill out a survey (name, email address, login ID, username, password and security question).
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- Employment information such as your CVs and references.
- We collect personal data from third party social networking sites (such as the “Like” functionality on Facebook, the “Follow” functionality on Twitter or the YouTube functionality) through so called social plug-ins. The purpose of the data collection and the further processing and use of the data by the providers on their pages as well as the rights and setting options for the protection of your privacy can be found in the data protection references of the respective providers. If you do not want the third party social networking site to allocate data collected through our Sites to your account with this social network, you must log out of the respective social networking site before visiting our Sites.
Collected information can include name, address, age, shopping habits, preferences and interests, online advertising; publicly available information such as user-generated content, blogs and postings, as permitted by law.
Most of our Sites are designed and intended for use by adults. Where a Site is offering content to a younger audience, we will gather consent from a parent or guardian prior to collecting personal information where we feel it is appropriate or where it is required by applicable laws and regulations (the age of consent varies per country). If we detect that children’s personal data has been transmitted to us, it will be deleted from our database. The parents (or legal guardians) of the child may contact us and request deletion of the data or de-registration (contact details see below). For this purpose, we may ask for a copy of an identification document, confirming the parental or guardian relationship.
5.	WHY DO WE COLLECT PERSONAL DATA AND USE IT?
-	to allow you to create and access your user account including any loyalty program associated with your account [so-called “request or contract legal basis (according Art. 6 para. 1 lit. b GDPR)”].
-	to process and ship your orders and purchases [so-called “request or contract legal basis (according Art. 6 para. 1 lit. b GDPR)”].
to send you information, products or samples that you have requested [so-called “consent legal basis (according Art. 6 para. 1 lit. a GDPR)”].
to contact you in relation with your queries, complaints or comments, via email, letter, telephone or online chat features [so-called “request or contract legal basis (according Art. 6 para. 1 lit. b GDPR)”].
to get you more actively engaged with our products and services by publishing your content for example [so-called “consent legal basis (according Art. 6 para. 1 lit. a GDPR)”].
to administrate contests or promotions [so-called “request or contract legal basis (according Art. 6 para. 1 lit. b GDPR)”].
to publish the contact details of the winners [so-called “legitimate interest legal basis (according Art. 6 para. 1 lit. f GDPR)”].
to allow you to participate in our loyalty program and interact with us within the program [so-called “request or contract legal basis (according Art. 6 para. 1 lit. b GDPR)” or based on your consent (according Art. 6 para. 1 lit. a GDPR)”].
to send you our newsletters, if you have subscribed to such a service.
to suggest products or services which we think may be of interest to you.
to offer you the opportunity to take part in competitions or promotions.
to contact you via mobile message service if you have subscribed to such services. If done via a partner, we will communicate its name to you.
to evaluate the use of our Sites, using data such as information about account login, computer usage, and/or previous website usage.
to evaluate the use of our Sites with tracking-tools. Find out more in our Cookie Notice.
to improve our products and services using demographic information, consumer profiling and consumer feedback.
to analyse the effectiveness of our advertisement and promotions, via cookies or tracking technologies.
to personalize your website experience based on targeted advertising.
- to offer you social features via community forums, tell-a-friend program or social networking features such as Facebook Connect [so-called “consent legal basis (according Art. 6 para. 1 lit. a GDPR)”].
- to process your job application for employment and possibly to determine whether you would be suitable for other positions available with our company [so-called “consent legal basis (according Art. 6 para. 1 lit. a GDPR)”].
to maintain the day-to-day operation, the maintenance and the security of LINDT & SPRÜNGLI Sites.
to conduct demographic studies or audits.
to contact you for consumer research.
to manage risks, disputes and records.
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-	authorities for legal reasons and potential buyers to carry a specific transaction.
a company receiving a query and transferring it to another company entitled to respond.
a company sharing a job application should it be addressed to another company.
a company transferring an account opened on its company site to another company site if so requested by you.
entities participating to a joint promotion or a loyalty program and wishing you to send you information if you have consented to it. Both LINDT & SPRÜNGLI and the partner might be joint controllers of your personal data. The privacy notice of such partner will apply to the processing of your personal information by the partner.
at your request, and provided we are under no legal obligation to keep it, we shall delete or anonymize your personal data from the Sites. However, you should note that your personal data may still be available in the partner’s own databases if transmitted prior to us receiving your request.
advertising, media and marketing agencies delivering and analysing our campaigns.
postal and logistic companies delivering a product you have ordered.
data processing entities acting upon instructions of LINDT & SPRÜNGLI, such as recruitment agencies, hosting or security providers.
governmental or law enforcement authorities requesting us to disclose the information based on applicable law.
entities to which LINDT & SPRÜNGLI divest all or a part of its business or a brand, or in connection with a merger, change in control, or liquidation of that business or brand.
We require such third parties, possibly based outside the country from which you have accessed the Sites, to comply with all relevant data protection laws and security requirements in relation to your personal data. Such third parties are obliged to protect data privacy to the same extent as we do ourselves. If the level of data protection in a country does not comply with Swiss or EU data protection laws, we contractually ensure that the protection of your personal data is the same as that in Switzerland or the European Economic Area (EEA) at all times.
Various third-party service providers have their residence in the USA. We would like to point out to users residing or based in Switzerland/EEA that in the USA there are monitoring measures taken by the US authorities that generally allow the storage of all personal data relating to all persons whose data has been transferred from Switzerland/EEA to the USA. This happens without differentiation, limitation or exception on the basis of the aim pursued and without an objective criterion that makes it possible to limit access to the data by US authorities and its later use to very specific, strictly limited purposes that may justify the intervention associated with both access to this data and use thereof. We would also like to point out that there are no judicial remedies in place in the USA for affected persons from Switzerland/EEA that would make it possible to receive access to the data relating to them and to have this corrected or deleted, as well as no effective legal protection against general access rights by US authorities. We refer the persons affected explicitly to this legal and factual situation so that they can make an appropriately informed decision on whether or not to consent to their data being used.
For users residing in EU Member States particularly, please note that, from the point of view of the European Union, the USA does not have sufficient data protection levels due, inter alia, to the issues mentioned in this section. To the extent that we have explained in this Privacy Notice that recipients of data (such as Google, Facebook and Twitter) are located in the USA, we will either based on a contract or by securing certification of these companies under the EU-US -Privacy Shield ensure that your data is protected at an appropriate level by our partners.
If we propose social plugins or if you connect your Account to your accounts on third party platforms like Facebook, we can collect and process account related information. If you connect with Facebook, your Facebook identity, name, email, location, friends list and profile picture will be stored and is used to connect with your Facebook account to provide certain functionality on the Sites. The third-party platform’s use of information collected from you (or as authorized by you) is governed by its own privacy notice and your settings on the service. For further information please check the privacy notice of the respective social network.
7.	HOW DO WE STORE AND SECURE DATA AND FOR HOW LONG?
You may request access to your personal data we hold by contacting us at Privacy.gbr@lindt.com. You have the right to tell us if you would like to correct, update or delete your personal data in our records. You also have the right to reclaim from us the data you have given us.
If your personal data is processed on the legal ground of legitimate interests you have the right to object processing. If the processing is based on your consent, you have the right to withdraw your consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal.
In order to assist us in dealing with your request, please provide your full name and details. For this purpose, we may require a copy of an identification document at our discretion.
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Lindt & Sprüngli (UK) LTD, located at 4 New Square, Feltham, Middlesex, TW14 8HA, is operating this Website and the Sites referring to this Privacy Notice. Lindt & Sprüngli acts as a “data controller” for the personal data it processes in the framework of this Privacy Notice.
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