Distribution right may be infringed by advertising sale of protected works, according to CJEU

The German Bundesgerichtshof (Federal Court of Justice) asked the Court of Justice of the European Union (CJEU) to clarify questions regarding the distribution right in the case Dimensione Direct Sales srl and Michele Labianca v Knoll International SpA, C-516/13.

On 13 May 2015, the CJEU issued its decision, ruling that the right of distribution under Article 4(1) of Directive 2001/29/EC encompasses the right to prevent "an offer for sale or a targeted 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 work by an EU buyer, in so far as that advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it".
 
In its findings, the CJEU observed that the notion of ‘distribution’ constitutes an independent concept of EU law, and that the notion of ‘distribution to the public (...) by sale’ in Article 4(1) of Directive 2001/29/EC has the same meaning as the expression ‘making available to the public (…) through sale’ in Article 6(1) WCT. Consequently, there may be an infringement of the distribution right "where a trader, who does not hold the copyright, sells protected works or copies thereof and addresses an advertisement, through its website, by direct mail or in the press, to consumers located in the territory of the Member State in which those works are protected in order to invite them to purchase it”. Hence, in the CJEU’s view, it is irrelevant, for a finding of an infringement of the distribution right, that such advertising is not followed by the transfer of ownership of the protected work or a copy thereof to the purchaser.