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
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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On 8 September 2016 (C-160/15), the CJEU ruled that the posting of a hyperlink to copyright-protected works located on another website does not constitute copyright infringement when the link poster does not seek financial gain.
The chapter on the UK summarises the IP court and litigation system in the UK, recent developments in relation to IP law and practice, the forms and availability of IP protection and trends and outlook in the IP sphere.
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