Readers will remember that this was a complex reference for a preliminary ruling from the Dutch Supreme Court encompassing a number of topical issues, notably: (1) the right of adaptation; and (2) exhaustion of the distribution right under Article 4 of the InfoSoc Directive.
Today the Court ruled that:
- With regard to the adaptation right, it is true that the InfoSoc Directive does not mention it. However, a situation like the one at hand, ie paper poster and canvas transfer of copyright-protected works, falls within the scope of Article 4(1) of the InfoSoc Directive;
- Exhaustion of the right of distribution under under Article 4(2) of the InfoSoc Directive only applies to the tangible support of a work.
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 involved, 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.
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) as to the following:
The AG Opinion
|Only analogically exhausted ...|
|... But InfoSoc adaptable|