|Sweet CJEU dreams|
There is however a national court that has referred pretty intriguing and challenging questions to the CJEU. It is the Dutch Supreme Court in Case C-419/13 Art & Allposters, which this blog has already mentioned on a number of occasions [here and here]. The news is that the Opinion of copyright-friend Advocate General Cruz Villalon is due in less than a month's time, ie on 11 September.
In this Kat's opinion, this reference has the potential to be more far-reaching than other cases that have been in the spotlight recently, such as Svensson and Meltwater. This not just because its outcome looks more unpredictable [really, how realistic was it for those two cases to end up differently from how they did?], but also because it will require the CJEU to consider:
- The right of adaptation: has it been (implicitly) harmonised at the EU level for subject-matter other than software and databases? Until recently the general opinion was that it has not.
- Exhaustion of the right of distribution as per Article 4(2) of the InfoSoc Directive, which is the EU equivalent of the US first sale doctrine and states that: "The distribution right shall not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent."
- The relationship between different exclusive rights, related exceptions and limitations, and possibly also moral rights [though these have not been harmonised at the EU level], as well as
- The compatibility of a peculiar Dutch judicial rule adopted in 1979 with the 2001 InfoSoc Directive and the more general pre-empting power of the latter with regard to national copyright laws.
|Visual synopsis of the case:|
Canvases + exhaustion
As explained much more in detail by EU Law Radar, the background proceedings concern the unauthorised making and selling by Art & Allposters of altered versions of copyright-protected artworks, whose rights are managed by collecting society Pictoright. Art & Allposters used authorised posters of the artworks in question [that presumably it had lawfully purchased] to transfer the images on canvas first, and sell them afterwards. The images were also cut to facilitate the placing on canvas.
Following an unsuccessful outcome at first instance, Pictoright won before the ’s-Hertogenbosch Court of Appeal. This court relied on the 1979 Poortvliet judgment to exclude that the right of distribution had been exhausted as per Article 12b of the Dutch Copyright Act and Article 4(2) of the InfoSoc Directive. This Kat is not an expert in Dutch copyright law [so any insights from Dutch readers are very welcome], but understands that in that ruling the Dutch Supreme Court had to deal with a very specific case, ie artist Poortvliet wishing to prevent the defendant who had purchased copies of his drawings embodied in calendars (for the realisation of which he had granted a limited licence) to sell them as separate reproductions after cutting them out from the calendars and fixing them on chipboard panels. The Supreme Court sided with Poortvliet and established the principle according to which a physical transformation of a physical copy prevents exhaustion. In other words: a transformation-preventing-exhaustion rule.
The litigation eventually reached the Supreme Court, that decided to refer the following questions to the CJEU:
|Charles is very adaptable |
when it comes to accommodation
(the best might do),
but has the right of adaptation
|Is copyright a democracy?|
|It's the (internal) market, baby!|