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Sweet CJEU dreams |
If
you were asked the typical summertime question/Buzzfeed-style quiz, ie which
copyright case currently pending before the Court of Justice of the European
Union (CJEU) you are most looking forward to after the summer break, what would
you reply?
It
is not an easy question as there is a number of interesting references for a
preliminary ruling dealing with issues that span from the notion of parody
under EU copyright [this is the Deckmyn case,
on which see here, here and here; see also here for
the recently approved UK exception for parody caricature and pastiche, which
will enter into force on 1 October],
private copying levies [this is Copydan,
on which see here:
this case is particularly topical to UK debate on private
copying, in that it will require the CJEU to interpret – among other things
– the de minimis rule in the last sentence of Recital 35 to
the InfoSoc
Directive and the exclusion of the fair compensation requirement], linking [C
More Entertainment is about linking by means of paywall
circumvention, while BestWater concerns
embedded links], to (again) jurisdiction in alleged
online infringement cases [Pez
Ejduk will possibly require the CJEU to re-consider the intention
to target approach, rejected in Pinckney,
on which see here, here and here], and everything in between, including the
resale royalty right [this is Christie's
France].
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.
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Visual synopsis of the case: Canvases + exhaustion |
Background
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.
In Art & Allposters the Court of Appeal
held that, because of Poortvliet, an altered canvas transfer made
from a poster lawfully sold in the European Economic Area is not subject to
Article 4(2) of the InfoSoc Directive and its Dutch equivalent.
The litigation eventually reached the Supreme Court, that decided to refer the
following questions to the CJEU:
Does
Article 4 of the [InfoSoc] Directive govern the answer to the question
whether the distribution right of the copyright holder may be exercised with
regard to the reproduction of a copyright-protected work which has been sold
and delivered within the European Economic Area by or with the consent of the
rightholder in the case where that reproduction had subsequently undergone an
alteration in respect of its form and is again brought into circulation in that
form?
(a) If
the answer to Question 1 is in the affirmative, does the fact that there has
been an alteration as referred to in Question 1 have any bearing on the answer
to the question whether exhaustion within the terms of Article 4(2) of the
Copyright Directive is hindered or interrupted?
(b) If
the answer to Question 2(a) is in the affirmative, what criteria should then be
applied in order to determine whether an alteration exists in respect of the
form of the reproduction which hinders or interrupts exhaustion within the
terms of Article 4(2) of the Copyright Directive?
(c) Do
those criteria leave room for the criterion developed in Netherlands national
law to the effect that there is no longer any question of exhaustion on the sole
ground that the reseller has given the reproductions a different form and has
disseminated them among the public in that form (judgment of the Hoge Raad of
19 January 1979 in Poortvliet, NJ 1979/412)?
Why
this case is important
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Charles is very adaptable when it comes to accommodation (the best might do), but has the right of adaptation been harmonised? |
1) Can the right of adaptation be considered (implicitly)
harmonised at the EU level?
This blog has recently addressed this
very issue by referring to the leaked Impact
Assessment on EU copyright, in which the EU Commission stated:
"Contrary to the reproduction right and the
communication to the public/making available right, there is no express rule
with respect to adaptations in the InfoSoc Directive (unlike the Software and
in the Database Directive). However, the broad manner in which the reproduction
right in Article 2 of that Directive is formulated and the CJEU's
jurisprudence on the scope of the reproduction right notably in Infopaq and Eva-Marie
Painer seem to cover adaptations which give rise to a further
reproduction within the meaning of Article 2. The pending
case Allposters will shed further light on the scope of Article 2."
If the Court concludes that adaptation
falls within the broad right of reproduction, then – among other things – it may
be questionable whether national rules like Poortvliet are still compatible
with EU law.
From a different, more policy-oriented
perspective, national initiatives like those advanced in Ireland and
providing for the adoption of innovation and fair
use exceptions would not be admissible under EU law.
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Is copyright a democracy? |
2) A hierarchy between rights?
The question(s) posed by the Dutch Supreme Court is heavily
dependent on the Portvliet rule. Yet, Article 4 is about the right of distribution and
its exhaustion. It is not about altered reproductions (adaptations) of a
copyright-protected work which has been sold and delivered within the European
Economic Area by or with the consent of the rightholder. Should the CJEU decide
otherwise, would this imply that there is a hierarchy between economic rights,
and also between these and moral rights? While
moral rights have not
been harmonised at the EU level, Article
6bis of the Berne Convention states that moral rights are
independent of the author's economic rights.
3) What about the Poortvliet rule?
The above appears to require a reconsideration of the Poortvliet rule, that would possibly result in
scaling down its value as a general principle and instead recognising it for it
is, ie a very fact-specific conclusion.
Overall, the idea of a general
transformation-preventing-exhaustion rule does not seem quite right.
As the CJEU recalled in UsedSoft (though
a case concerning the Software - not InfoSoc - Directive), "the
objective of the principle of the exhaustion of the right of distribution of
works protected by copyright is, in order to avoid partitioning of markets, to
limit restrictions of the distribution of those works to what is necessary to
safeguard the specific subject-matter of the intellectual property concerned".
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It's the (internal) market, baby! |
References to internal market-building concerns are
repeatedly present in the InfoSoc Directive and have been increasingly made by
the CJEU in its judgments, also to achieve unexpected outcomes (USedSoft itself is an example). Is it
compatible with the realisation of an internal market free from barriers to
trade to have a national rule that allows a copyright holder to avoid
exhaustion of the right of distribution anytime a work lawfully sold in the
territory of the Community is transformed, no matter whether the transformation
may be permissible under one of Article 5 exceptions/limitations and does not amount to a violation of the
author's (national) moral rights, notably integrity?
It is also worth recalling that, despite references in the
InfoSoc Directive and CJEU case law to the need of providing rightholders with
a high level of protection, in FAPL (a
case not concerning exhaustion though), the CJEU held that "the
specific subject-matter of the intellectual property does not guarantee the
right holders concerned the opportunity to demand the highest possible
remuneration. Consistently with its specific subject-matter, they are ensured –
as recital 10 in the preamble to the [InfoSoc] Directive and recital 5 in the
preamble to the Related
Rights Directive envisage – only appropriate remuneration for each use
of the protected subject-matter."
Overall, if not other arguments, internal market
partitioning concerns might have a significant weight in orienting the decision
of the CJEU.
Let’s now wait for the AG Opinion next month.
" Article 6bis of the Berne Convention states that moral rights are independent of the author's moral rights."
ReplyDeleteI think you meant "..independent of the author's economic rights"
Thanks, Andy! Since everyone else is busy, I've corrected this.
ReplyDeleteWhich one is more interesting depends much on perspective, but who is first seems beyond doubt: Deckmyn will be published on September 3rd!
ReplyDeleteHow exciting! Thanks Anonymous: I am really looking forward to that one.
ReplyDeleteIt would be nice to see a description of what Allposters is actually doing, ie is it just sticking a paper print on to canvas, and trimming, or is it doing something else (eg putting several of the works together on a canvas)?
ReplyDelete