Distribution copyrights extend to advertisements

European court ruled in case C‑516/13 Dimensione Direct Sales Srl,  Michele Labianca  срещу  Knoll International SpA. Делото касае следното:
Knoll belongs to the Knoll group, whose parent company, Knoll Inc., has its headquarters in Pennsylvania (United States). That group manufactures high-value furniture and sells it worldwide. Knoll distributes, inter alia, ‘Wassily’ chairs and ‘Laccio’ tables designed by Marcel Breuer and ‘Barcelona’ chairs, stools, couches and tables, ‘Brno’ and ‘Prague’ chairs, and a ‘cantilever’ chair designed by Ludwig Mies van der Rohe (together, ‘the protected designs’). Knoll is authorised to assert the exclusive copyright, held by its parent company, in those designs protected in Germany.
Dimensione is a private limited company whose Managing Director is Mr Labianca. Dimensione distributes designer furniture by direct sale in Europe and offers furniture for sale on its website.
In 2005 and 2006, Dimensione advertised furniture similar to the protected designs on its website, which is available in German, and in various German daily newspapers and magazines and in an advertising brochure, stating as follows:
‘Buy your furniture from Italy, but pay nothing until collection or delivery by a forwarding agent authorised to take payment (service arranged on request).’
Since it believed that the items of furniture offered for sale by Dimensione were imitations or counterfeit versions of the protected designs, Knoll brought an action against Dimensione and Mr Labianca before the Landgericht Hamburg (Regional Court, Hamburg) seeking an order prohibiting them from offering that furniture for sale in Germany. In support of its action, Knoll submitted that those items of furniture are protected under copyright law as works of applied art. In its view, by advertising copies of the protected designs in Germany, Dimensione infringed its rights and those of its parent company under Paragraph 17(1) of the Law on copyright and related rights of 9 September 1965, as amended.
The Landgericht Hamburg granted Knoll’s application. The Hanseatisches Oberlandesgericht Hamburg (Higher Regional Court, Hamburg), ruling on the appeal brought by Dimensione and by Mr Labianca, upheld the judgment given at first instance. Dimensione and Mr Labianca then brought an appeal on a point of law (‘Revision’) before the Bundesgerichtshof (the referring court).
The Bundesgerichtshof observes that the success of that appeal is dependent on the interpretation of Article 4(1) of Directive 2001/29 and in particular the question whether the distribution right laid down in that provision includes the right to offer the original or a copy of a protected work to the public for sale. If that question is to be answered in the affirmative two further questions arise, namely, first, whether the right to offer the original of a work or copies of it also includes the exclusive right to advertise those objects, and, second, whether the distribution right is infringed where no purchase of such an original or such copies takes place on the basis of the offer for sale of them. The referring court takes the view that those questions must be answered in the affirmative.
In those circumstances, the Bundesgerichtshof decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
1. Does the distribution right under Article 4(1) of Directive 2001/29 include the right to offer the original or copies of the work to the public for sale?
If the first question is to be answered in the affirmative:
2. Does the right to offer the original or copies of the work to the public for sale include not only contractual offers, but also advertising measures?
3. Is the distribution right infringed even if no purchase of the original or copies of the work takes place on the basis of the offer?’
The Court’s decision:
Article 4(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that it 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.

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