Distribution of a copyright work requires transfer of ownership, rules ECJ

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.