The CJEU has today given an important judgment concerning the exhaustion of rights when copyright works in altered form are distributed in the EU.Art & Allposters (C-419/13 here) is a copyright
The CJEU has today given an important judgment concerning the exhaustion of rights when copyright works in altered form are distributed in the EU.
Art & Allposters (C-419/13 here) is a copyright infringement case involving the transfer of images of protected works from a paper poster to a painter's canvas (a "canvas transfer") and the sale of those images. The CJEU was asked to consider whether the rule of exhaustion of the distribution right set out in Article 4 of the InfoSoc Directive 2001/29/EC applies in a situation where the reproduction of a protected work has undergone an alteration after having been marketed in the EU with the copyright holder's consent.
The CJEU confirmed that both a paper poster and a canvas transfer containing the image of a protected artistic work were copies of the protected work. Article 4(1) recognises the exclusive right of authors, in respect of the original or copies of their works, to authorise or prohibit any form of distribution to the public by sale or otherwise. Under Article 4(2), this distribution right is not exhausted in respect of the original or copies of a work, except where the first sale or other transfer of ownership in the EU of that object is made by the rightholder with his consent. The CJEU noted that Article 4(2) used the term "that object" and recital 28 refers to "works incorporated in a "tangible article"". This showed that the legislature wished to give authors control over the initial marketing in the EU of each "tangible object" incorporating their intellectual creation.
The Court therefore concluded that the consent of the copyright holder does not cover the distribution of an object incorporating his work if that object has been altered after its initial marketing in such a way that it constitutes a new reproduction of that work. In such an event, the distribution right of such an object is exhausted only upon the first sale or transfer of ownership of that new object with the consent of the rightholder.
Comment
This case is clearly more restrictive than the principle set out in the UsedSoft decision (see here). This stated that a copyright owner's exclusive distribution right in respect of a computer program is exhausted on its first sale, whether that is made online or on a physical medium. However, the exhaustion principle in relation to software is dealt with expressly in the Software Directive (2009/24/EC) and not the InfoSoc Directive and the two directives use different language. In UsedSoft, the Court was able to rule that the first sale doctrine applies equally whether software is distributed in hard or soft copy form, because the language of the Software Directive refers to software "in any form". However, the Information Society Directive refers to "tangible articles" and "tangible objects".
The case does, however, seems to tally with the TV Catchup case (see here) where the CJEU held that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must be individually authorised by its author. In coming to this decision, the CJEU noted that the principal objective of the InfoSoc Directive is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works. The CJEU has today confirmed that this high level of protection applies to more traditional non-digital copyright works also protected by the InfoSoc Directive.
Copyright holders will certainly welcome the decision as it confirms a wide principle that they need to authorise every tangible form of their work. It would concern many in creative industries if companies were allowed to alter works without authority and resell them for commercial purposes. This decision allows copyright owners to continue to control how the public views their works, even after they have been placed on the market.
Art & Allposters (C-419/13 here) is a copyright infringement case involving the transfer of images of protected works from a paper poster to a painter's canvas (a "canvas transfer") and the sale of those images. The CJEU was asked to consider whether the rule of exhaustion of the distribution right set out in Article 4 of the InfoSoc Directive 2001/29/EC applies in a situation where the reproduction of a protected work has undergone an alteration after having been marketed in the EU with the copyright holder's consent.
The CJEU confirmed that both a paper poster and a canvas transfer containing the image of a protected artistic work were copies of the protected work. Article 4(1) recognises the exclusive right of authors, in respect of the original or copies of their works, to authorise or prohibit any form of distribution to the public by sale or otherwise. Under Article 4(2), this distribution right is not exhausted in respect of the original or copies of a work, except where the first sale or other transfer of ownership in the EU of that object is made by the rightholder with his consent. The CJEU noted that Article 4(2) used the term "that object" and recital 28 refers to "works incorporated in a "tangible article"". This showed that the legislature wished to give authors control over the initial marketing in the EU of each "tangible object" incorporating their intellectual creation.
The Court therefore concluded that the consent of the copyright holder does not cover the distribution of an object incorporating his work if that object has been altered after its initial marketing in such a way that it constitutes a new reproduction of that work. In such an event, the distribution right of such an object is exhausted only upon the first sale or transfer of ownership of that new object with the consent of the rightholder.
Comment
This case is clearly more restrictive than the principle set out in the UsedSoft decision (see here). This stated that a copyright owner's exclusive distribution right in respect of a computer program is exhausted on its first sale, whether that is made online or on a physical medium. However, the exhaustion principle in relation to software is dealt with expressly in the Software Directive (2009/24/EC) and not the InfoSoc Directive and the two directives use different language. In UsedSoft, the Court was able to rule that the first sale doctrine applies equally whether software is distributed in hard or soft copy form, because the language of the Software Directive refers to software "in any form". However, the Information Society Directive refers to "tangible articles" and "tangible objects".
The case does, however, seems to tally with the TV Catchup case (see here) where the CJEU held that, when a given work is put to multiple use, each transmission or retransmission of that work using a specific technical means must be individually authorised by its author. In coming to this decision, the CJEU noted that the principal objective of the InfoSoc Directive is to establish a high level of protection for authors, allowing them to obtain an appropriate reward for the use of their works. The CJEU has today confirmed that this high level of protection applies to more traditional non-digital copyright works also protected by the InfoSoc Directive.
Copyright holders will certainly welcome the decision as it confirms a wide principle that they need to authorise every tangible form of their work. It would concern many in creative industries if companies were allowed to alter works without authority and resell them for commercial purposes. This decision allows copyright owners to continue to control how the public views their works, even after they have been placed on the market.