|Not all alterations |
Following his Opinion earlier today in Pez Hejduk [here], AG Cruz Villalón has in fact just issued another one [once again, available in - amongst others - Italian but not English], this being the much-awaited Opinion in Case C-419/13 Art & Allposters International BV v Stichting Pictoright, a reference for a preliminary ruling from the Dutch Supreme Court seeking clarification as to the following:
To clarify, and as summarised by the AG himself, this very important case is just about this question: "Can the person who owns copyright to a painting and has previously consented to having the image represented therein marketed as a poster later object to the commercialisation of the same image transferred on canvas?"
As readers will remember, 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 to transfer the images on canvas first, and sell them afterwards over the internet. It is worth adding that this process involves, first, the placing of a special cover on the poster and, secondly the transfer of the image from the poster to the canvas by means of a chemical process.
|Kat-inspired artistic adaptations|
This Kat is not an expert in Dutch copyright law, 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 stay the proceedings and seek guidance from the Court of Justice of the European Union (CJEU).
The AG Opinion
|But there was "right of adaptation"|
|It's all about the demon |
of artistic inspiration
|At last Gregory has found |
an acceptable tangible support
This part of the Opinion is extremely important, and prompts the question (not at stake in this case!) as to whether EU law would allow digital exhaustion for subject-matter other than software, say ebooks [watch this space because tomorrow there will be a post on the new Dutch reference to the CJEU on this].
According to the AG, changing the material support has a bearing in determining whether there has been exhaustion of the right of distribution. In the case at hand (which might also involve, he said, an infringement of the right of reproduction by the way) there could be no exhaustion because the alteration by Art & Allposters was particularly relevant. Such relevance follows from the fact that the alteration concerned the same support which was used for the original artworks, and this might create a likelihood of confusion [look: another reference to the language of trade mark law in a copyright case]
The AG did not consider necessary to say what in abstract the criteria referred to by the national court in Question 2(b) could be. The AG also said that it is left to the national court to determine whether Portlievet and its progeny are compatible with EU law (Question 2(c)).
Let's now wait for the CJEU judgment!