Keywords: copyright infringement, Germany, CJEU,
On 5 November 2015, the German Federal Court of Justice (I ZR 91/11, I ZR 76/11, I ZR 88/13) ruled that the copyright holder's right to distribute its work to the public shall include the right to offer the original or a copy of a protected work to the public for sale. Thus, any unauthorized advertisement of the original or a copy of that work constitutes copyright infringement.
The case before the Federal Court of Justice covers three separate proceedings: In the first two proceedings the defendant, a company resident in Italy, offered for sale reproductions of certain furniture designs which enjoy copyright protection in Germany, but not in Italy. The company made online and print advertising in German language (directed at German citizens) to come to Italy to buy those pieces and take them home. In a third proceeding, the defendant offered for sale a DVD with a non-authorized live recording of the artist "Al Di Meola" playing in Tokyo. In all three proceedings, the plaintiffs sought to prevent the advertisement of works (or copies thereof) which are protected by copyright, or in the latter case a neighboring right of the performing artist (section 77(2) of the German copyright Act). The plaintiffs argued that the exclusive right of the copyright holder to distribute its work to the public (section 17(1) of the German Copyright Act) included the right to advertise the original or any copy of that work.
Reference for a Preliminary Ruling
The Federal Court of Justice stayed the proceedings and asked the Court of Justice of the European Union (CJEU) whether the distribution right laid down in Article4(1) of Directive 2001/29 includes the right to offer the original or a copy of a protected work to the public for sale and, if that question was to be answered in the affirmative: 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.
In its ruling on 13May 2015, the CJEU (C-516/13) responded in the affirmative to all questions and held that Article4(1) of Directive 2001/29 must be interpreted as meaning that it allows a holder of an exclusive right to prohibitany formof distribution to the public by sale or otherwise. This shall include the right to,inter alia, prevent an 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 object by an EU buyer.It was sufficient that the advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it.
Decision of the Federal Court of Justice
The Federal Court of Justice followed the CJEU's ruling and held that a copyright holder has the right to preventthe unauthorized advertising of copies of a protected work or the work itself, even if no actual sales have taken place.It is sufficient that the advertisement invites consumers in Germany in which that work enjoys copyright protection to purchase it. The same rights shall be conferred to the holder of aneighboring right of the performing artist (section 77(2) of the German copyright Act).Originally published November 19, 2015
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