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.
