Sadly, so far the Opinion is not available in English or Italian, so this Kat had to attempt understanding somehow the French version.
As IPKat readers will remember, this is a reference for a preliminary ruling from the Bundesgerichtshof (Germany), seeking clarification as regards one of the sexiest economic rights, ie the right of distribution within Article 4 of the InfoSoc Directive.
- Does the distribution right under Article 4(1) of [the InfoSoc Directive] include the right to offer the original or copies of the work to the public for sale? [this Kat would say yes, especially following the decision in Cassina, here, in which the CJEU held (paras 31-33) that the concept of the right of distribution enjoyed by the authors of literary and artistic works is to be intended 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]
- If the first question is to be answered in the affirmative: Does the right to offer the original or copies of the work to the public for sale include not only contractual offers, but also advertising measures? [possibly 'no', courtesy of para 41 in the Cassina decision: "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 Article 4(1) of Directive 2001/29, applies only where there is a transfer of the ownership of that object."]
- Is the distribution right infringed even if no purchase of the original or copies of the work takes place on the basis of the offer? [probably not: it is true that para 34 in Cassina referred to "acts entailing a transfer of ownership", but it would not seem that an offer that is not followed by an actual purchase could be considered as an act entailing a transfer of ownership]
|Merpel's buen retiro, |
Knoll International SpA is an Italian company that trades in furniture. Also Dimensione Direct Sales (Mr Labianca is its director) is an Italian company that trades in furniture, which it offers for sale on its website www.dimensione-bauhaus.com. Apparently between 2005 and 2006 Dimensione Labianca offered for sale in Germany items that would infringe copyright in furniture to which Knoll International owns the copyright.
Litigation ensued before German courts, and Knoll succeeded at both first instance and appeal. The case eventually reached the Bundesgerichtshof, that decided to stay the proceedings and seek guidance from the CJEU.
The AG Opinion
The AG noted that the facts of this case are rather different from those in Cassina, Titus Donner [here; incidentally, Dimensione Direct Sales was also involved there] and Blomqvist [here], in that here Dimensione Direct Sales made clear its intention to market the alleged infringing furniture, but no sale or actual delivery of infringing goods actually occurred.
The AG referred extensively to the CJEU decision in Cassina and reached different conclusions from those advanced above, possibly on grounds that the offer for sale by Dimensione Direct Sales was fairly unequivocal.
In particular, he held that Article 4(1) of the InfoSoc Directive must be interpreted in the sense that the right to distribution within the meaning of that provision includes the right of the copyright owner of the original or copies thereof to prohibit anyone from offering for sale to the public said original or the copies without his/her consent, provided that such offer displays a clear intention to conclude a contract that would involve the transfer of ownership over the original or the copies of a work.
Is Dimensione Direct Sales and Labianca such a complex case that it required an AG Opinion in the first place? Perhaps ... But it is also probably no more complex than other references that the CJEU decided without an AG Opinion, notably Svensson [yet, this is not the only instance: see here], or even by means of an order [this is BestWater, here].
So: does Dimensione Direct Sales and Labianca raise "a new point of law" as per Article 20 of the Treaty on the European Union, while cases like - say - Svensson were much more straightforward?
The right answer seems to be: "unlikely".
Cases like Dimensione Direct Sales and Labianca may appear more important to the CJEU because they have a closer connection with free movement provisions (and so they have a more traditional EU dimension). Yet, are cases like these the most important ones to current and future EU copyright developments?