On 5 November 2015, the German Federal Court of Justice ruled that a copyright holder’s right to distribute its work to the public (Section 17 para. 1 of the German Copyright Act) includes the right to offer the original, or a copy, of a protected work to the public for sale. Thus, any unauthorized advertisement of the original or a copy of that work constitutes copyright infringement.

Background

The case before the Federal Court of Justice covers three separate proceedings: In the first two proceedings, the defendant, a company resident in Italy, offered for sale reproductions of certain furniture designs which enjoy copyright protection in Germany but not in Italy. The company made online and print advertising in German (directed at German citizens) to come to Italy to buy those pieces and take them home. In a third proceeding, the defendant offered for sale a DVD with a non-authorized live recording of the musician Al Di Meola performing in Tokyo.

In all three proceedings, the plaintiffs sought to prevent the advertisement of works (or copies thereof) which are protected by copyright, or, in the latter case, a neighboring right of the performing artist (section 77 para. 2 of the German Copyright Act). The plaintiffs argued that included in the exclusive right of the copyright holder to distribute its work to the public (Section 77 para. 2 of the German Copyright Act) is the right to advertise the original, or any copy of that work.

Reference for a Preliminary Ruling

The Federal Court of Justice stayed the proceedings and asked the Court of Justice of the European Union (CJEU) whether the distribution right established in Article 4(1) of Directive 2001/29 includes the right to offer the original or a copy of a protected work to the public for sale. If that question was answered in the affirmative, then the Federal Court of Justice asked first, whether the right to offer the original of a work or copies of it also includes the exclusive right to advertise those objects and, second, whether the distribution right is infringed where no purchase of such an original or such copies takes place on the basis of the offer for sale of them.

In its ruling on 13 May 2015, the CJEU (C-516/13) responded in the affirmative to all questions and held that Article 4(1) of Directive 2001/29 must be interpreted to allow a holder of an exclusive right to prohibit any form of distribution to the public by sale or otherwise. This shall include the right to, inter alia, prevent an advertisement of the original or a copy of that work, even if it is not established that that advertisement gave rise to the purchase of the protected object by an EU buyer. It was sufficient that the advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it.

Decision of the Federal Court of Justice

The Federal Court of Justice followed the CJEU’s ruling and held that a copyright holder has the right to prevent the unauthorized advertising of copies of a protected work, or the work itself, even if no actual sales have taken place. It is sufficient that the advertisement invites consumers in Germany – where the work enjoys copyright protection – to purchase it. The same rights shall be conferred to the holder of a neighboring right of the performing artist (section 77 para. 2 of the German Copyright Act).

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