Advertising copyrighted goods without permission infringes distribution rights, says CJEU

The Court of Justice of the EU (CJEU) confirmed that EU copyright laws allow copyright holders the right to prevent others from advertising the availability of their copyright-protected products where they have not given distribution rights for those products to such advertisers.

The CJEU clarified the legal position in a case referred to it from Germany where a furniture company had taken legal action against an Italian-based distributor over marketing of allegedly counterfeit versions of its furniture by the distributor in German publications. The furniture business has claimed that the Italian distributor infringed its copyright by marketing imitations of its copyright-protected designs in Germany as it held the exclusive right to distribute those products in the German market.

The CJEU confirmed that there does not need to be a direct link between the sale of copyrighted works and the advertising of those works for the marketing activity to be held as infringing copyright.

"[The EU Copyright Directive] … allows a holder of an exclusive right to distribute a protected work to prevent an offer for sale or a targeted advertisement of the original or a copy of that work, even if it is not established that that advertisement gave rise to the purchase of the protected work by an EU buyer, in so far as that advertisement invites consumers of the member state in which that work is protected by copyright to purchase it," the CJEU ruled.

Under the Copyright Directive, copyright owners have the "exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise". Rights holders lose control over the way their works are distributed after they first sell or authorise the sale of those goods in the EU or otherwise transfer ownership of those works.