German clothes chain Peek & Cloppenburg bought replica Le
Corbusier chairs from an Italian manufacturer and used them in
window displays and as seats for customers in its shops.
Another German company, Cassina, had the exclusive right to
manufacture Le Corbusier replica furniture in Germany and sued
P&C in Frankfurt for copyright infringement.
Cassina relied on the fact that copyright law gave it protection
against another person engaging in "any form of distribution, by
sale or otherwise" of the furniture.
P&C said that it had acquired the chairs lawfully from an
Italian manufacturer. At the time of their making Italy did not
have legal protections for industrial designs and so the chairs had
been made legally.
The Copyright Directive provides that: "Member states shall
provide for authors, in respect of their original works and copies
thereof, the exclusive right to authorise or prohibit any form of
distribution of their works to the public".
Cassina won its case in Frankfurt but P&C appealed to the
Federal Court of Justice. That court referred questions to the
European Court of Justice. It asked whether the distribution right
could be broadly interpreted to prohibit the use of protected items
in a public setting. The ECJ said it could not.
"The concept of distribution to the public, otherwise than
through sale, of the original of a work or a copy thereof, for the
purpose of [the Copyright Directive] covers acts which entail, and
only acts which entail, a transfer of the ownership of that
object," said the ECJ's judgment. "The information provided by the
referring court shows that that clearly does not apply to the acts
at issue in the main proceedings."
The Copyright Directive was, the Court said, designed to
implement an international agreement brokered by the World
Intellectual Property Organisation (WIPO), the Copyright Treaty
(CT) and the Performances and Phonograms Treaty (PPT).
The ECJ said that it must interpret the Directive in line with
the international treaties it implemented.
"Article 6(1) of the CT defines the concept of the right of
distribution enjoyed by the authors of literary and artistic works
as the exclusive right of authorising the making available to the
public of the original and copies of their works through sale or
‘other transfer of ownership’," said the ruling. "Moreover,
Articles 8 and 12 of the PPT contain the same definitions of the
right of distribution enjoyed by performers and producers of
phonograms. Thus, the relevant international Treaties link the
concept of distribution exclusively to that of transfer of
ownership."
"It is not for the Court to create, for authors’ benefit, new
rights which have not been provided for by [the] Directive and by
so doing to widen the scope of the concept of distribution of the
original of a work or a copy thereof beyond that envisaged by the
Community legislature," said the ECJ.
The ECJ said that distribution in the Copyright Directive had to
involve a transfer of ownership. "Neither granting to the public
the right to use reproductions of a work protected by copyright nor
exhibiting to the public those reproductions without actually
granting a right to use them can constitute such a form of
distribution," it said.
The ECJ followed the advice of ECJ Advocate General Eleanor
Sharpston QC who advised it earlier this year to reject Cassina's
claims.
