Displaying a chair does not infringe its copyright, says Advocate General

Clothes chain Peek & Cloppenburg used furniture made from designs by Le Corbusier in its shops in Germany. Another German company, Cassina, had the exclusive right to manufacture Le Corbusier-designed furniture in Germany.

Cassina sued Peek & Cloppenburg for copyright infringement, arguing that the use of the furniture violated its exclusive distribution right of the copyright-protected chairs. Peek & Cloppenburg had bought the chairs from a manufacturer in Italy. At the time of manufacture, the chairs were not protected by copyright in Italy.

The German Federal Court of Justice asked the European Court of Justice for guidance on the issue. "The Court is asked whether such use of the furniture constitutes a ‘distribution to the public by sale or otherwise’ within the meaning of Article 4(1) of the Copyright Directive," it was asked. "If so, the Court is asked whether the exercise of that distribution right in the circumstances of the present case is compatible with Article 28 EC."

The European Court of Justice is assisted by Advocates General who can give opinions on cases before the judges come to a decision. The decision of an Advocate General tends to be highly influential though it is not binding. Advocate General Eleanor Sharpston QC was asked to investigate Cassina's claim.

It was undisputed that Cassina had an exclusive right to distribute Le Corbusier furniture in Germany, but the Court was asked whether the display and use of such furniture in a shop interfered with that right.

Cassina argued that because the law gives protection against "any form of distribution, by sale or otherwise", the mere display of the furniture in a shop was a violation.

"Such an interpretation would be consistent with the broad concept of distribution right used in other copyright instruments before the Copyright Directive, such as the directives on rental and lending rights, on the legal protection of computer programs and on the legal protection of databases," it argued.

Advocate General Sharpston rejected those arguments, pointing out that elsewhere in the Copyright Directive distribution is defined as "first sale or other transfer of ownership", which does not cover the use of chairs in a shop.

Cassina had argued that copyright law was designed to give broad protection to the owners or licensees of copyrights. But Sharpston said that while this was true, it did not decide this case. "It is of course the case that the Copyright Directive seeks to provide for a high level of protection of intellectual property," she said. "It would, however, in my view be an oversimplification to assume that any ambiguity in the scope of ‘distribution to the public’ should automatically be decided in favour of the rightholder."

The chairs were bought in Italy at a time when copyright law there did not extend to industrial designs, such as chair designs because Italy was still to implement a European Directive on the subject. Sharpston said that stopping this legal acquisition would do nothing to protect the copyright in question.

"It is not at all obvious to me that to permit a rightholder in such circumstances to prevent a person who has lawfully bought the protected goods in another Member State from making them available for temporary use by the public safeguards the rights which constitute the specific subject-matter of the copyright," she said in her opinion.

The opinion distinguished between tangible goods such as furniture and intangible ones such as music or films. Cassina argued that everything should receive the broad protection offered in film rental, but Sharpston disagreed.

"Intangible works are, by their nature, susceptible to being distributed in different ways from tangible works," she wrote. "It is precisely for that reason that first the Court in its case-law and then the Community legislature in the directive on rental and lending rights provided for more extensive copyright protection for intangibles."

The court ruling is expected in a few months.