AG says peeking isn't distribution

Here's a copyright opinion from AG Sharpston in Peek & Cloppenberg. Cassina had an exclusive right to manufacture Le Corbusier furniture in Germany. P & C bought Le Courbusier-designed chairs, made by a different company, in Italy where, at the time, they were not protected by copyright. The furniture was used in P & C’s German branches in rest areas for customers (weary husbands/ boyfriends/ partners no doubt) and a table was used as part of a window display. The items were protected by copyright law in Germany. Cassina argued that this infringed its distribution right under copyright law. A reference from the German court to the ECJ ensued:

‘1.(a) Can it be assumed that there is a distribution to the public otherwise than by sale, within the meaning of Article 4(1) of [the Copyright Directive], in the case where it is made possible for third parties to make use of items of copyright-protected works without the grant of user involving a transfer of de facto power to dispose of those items?

(b) Is there a distribution under Article 4(1) of the [Copyright] Directive also in the case in which items of copyright-protected works are shown publicly without the possibility of using those items being granted to third parties?

2. If the answers are in the affirmative:

Can the protection accorded to the free movement of goods preclude, in the abovementioned cases, exercise of the distribution right if the items presented are not under copyright protection in the Member State in which they were manufactured and placed on the market?’

According to AG Sharpston, question 1(a) had to be answered in the negative. The definiton of ‘distribution’ implied a transfer of ownership. Such a reading would be in accordance with the relevant international conventions, and would also allow for the free movement of goods. A rule which found infringement where a defendant lawfully purchased protected goods in a territory where they were not protected by copyright, and then made them available temporarily where they were not so protected was not necessary to protect the specific subject matter of copyright. The fact that a narrow definition of the distribution right here contrasted with a wide definition in relation to intangible works, such as cinematographic or musical works, did not matter greatly, since intangible works were by their nature ‘, susceptible to being distributed in different ways from tangible works’.

It followed a fortiori that displaying the works in a shop window (question 1(b)) also did not infringe the distribution right.

It was therefore not necessary for the AG to answer question 2, but she found that the free movement rules did not point to a different conclusion.

She also stressed that it made no difference that the copyright owner hadn’t consented to the Italian sale.

The IPKat says that this looks like a victory for common sense. Surely copyright infringement can’t ever have been intended to stop the use (rather than the manufacture) of furniture? He’s not quite sure about the AG’s discussion of intangible works – isn’t all IP intangible?