1709 Blog: for all the copyright community

Tuesday, 23 September 2014

Copyright Wars on a bigger battlefield

In June 2012 this blog reviewed Hollywood's Copyright Wars: from Edison to the Internet, by Peter Decherney.  A new set of copyright war stories has now been published, The Copyright Wars: Three Centuries of Trans-Atlantic Battle. Its author is Peter Baldwin (Professor of history at the University of California, Los Angeles, Global Distinguished Professor at New York University and author of the captivatingly titled The Narcissism of Minor Differences: How America and Europe Are Alike).  The two tomes should be expected to have some common ground, since both deal with Hollywood, but the battlefield in this volume, as its title suggests, is considerably wider.

This blogger has not yet seen a review copy, so he quotes from the publishers' website:
Today’s copyright wars can seem unprecedented. Sparked by the digital revolution that has made copyright—and its violation—a part of everyday life, fights over intellectual property have pitted creators, Hollywood, and governments against consumers, pirates, Silicon Valley, and open-access advocates. But while the digital generation can be forgiven for thinking the dispute between, for example, the publishing industry and Google is completely new, the copyright wars in fact stretch back three centuries—and their history is essential to understanding today’s battles. The Copyright Wars—the first major trans-Atlantic history of copyright from its origins to today—tells this important story.

Charles Dickens
Peter Baldwin explains why the copyright wars have always been driven by a fundamental tension. Should copyright assure authors and rights holders lasting claims, much like conventional property rights, as in Continental Europe? Or should copyright be primarily concerned with giving consumers cheap and easy access to a shared culture, as in Britain and America? The Copyright Wars describes how the Continental approach triumphed, dramatically increasing the claims of rights holders. The book also tells the widely forgotten [by some, perhaps, but not by anyone who has taken an interest in Charles Dickens] story of how America went from being a leading copyright opponent and pirate in the eighteenth and nineteenth centuries to become the world’s intellectual property policeman in the late twentieth. As it became a net cultural exporter and its content industries saw their advantage in the Continental ideology of strong authors’ rights, the United States reversed position on copyright, weakening its commitment to the ideal of universal enlightenment—a history that reveals that today’s open-access advocates are heirs of a venerable American tradition.
Published by Princeton University Press, the book's web page is here.

Monday, 22 September 2014

Extended copyright licensing: the MOCA survey

Coffee and Copyright: both
start with "C" and both can
be pretty good stimulants ...
The MOCA, which is a short-hand way of saying "The Ministry of Copyright, Cultural, Creators' Assets", is not actually a government department -- though this blogger would be happy to know that an official agency of that name existed if it could be guaranteed to look after the interests of creators.  Nor is it a mis-spelled Arabian coffee bean or the homophone of a popular chocolate-flavoured coffee drink.  Rather, it is a highly specialised consultancy agency that offers over quarter of a century's expertise and media industry advice on copyright policy and legislation, rights management and business development.  Be that as it may, MOCA has taken to heart the need to enlighten the creative community as to the consequences of some significant legislative changes in the United Kingdom.  As the organisation explains:
"By October this year copyright legislation [in the United Kingdom] will change so that authorised legal entities will be able to reuse and collect payments for re-use of creators' works even if they are not members of a collecting society. This change in legislation (ECL [= Extended Copyright Licensing, explained by the UK government here]) will affect all creators in the UK whether they have published their works or made these available via social media sites. Creators who are not happy with this arrangement will have the opportunity to opt out (a) all schemes prior to an ECL commencement or (b) specific licences which may or may not contain your work within 21 days from the published notice".
With this in view, MOCA is running a voluntary independent survey to give everyone an opportunity to have their say about ECL, what they would expect of an Opt-Out procedure and how they think it may affect their business. All information gathered from this survey will be reported back to relevant parties such as rights holders, collecting societies and to the UK Intellectual Property Office. This questionnaire should take less than five minutes to complete.

The closing date for submitting surveys is 25 October 2014. If you are affected by ECL, if you think that you might be, or if you have any friends, family, acquaintances or household pets who might be, do please let them know about it.

Friday, 19 September 2014

Berne leniencies: now it's Bangladesh's turn to opt for them

The trend towards making use of the relaxations of copyright, provided by the Berne Convention's 1971 Appendix, continues. By Berne Notification No. 269: Berne Convention for the Protection of Literary and Artistic Works we learn that Bangladesh is following in the recent footsteps of Thailand, Vietnam and the UAE (Yemen having also renewed this facility). For those who enjoy the pomp and circumstance of formal diplomatic circumlocution, the notification reads like this:
Declaration by the People's Republic of Bangladesh

The Director General of the World Intellectual Property Organization (WIPO) presents his compliments to the Minister for Foreign Affairs and has the honor to refer to the deposit by the Government of the People's Republic of Bangladesh, on February 4, 1999, of its instrument of accession to the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Paris on July 24, 1971 (see Berne Notification No. 200).

In this respect, the Director General has the honor to notify the deposit, on September 5, 2014, by the Government of the People's Republic of Bangladesh of the following declaration:
- "Pursuant to Article I of the Appendix of the Paris Act of the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886, as revised at Paris on July 24, 1971, this state will avail itself of the facilities provided for in Articles II and III of the said Appendix during the 10-year period that will expire on October 2024."
The said declaration shall enter into force, with respect to the territory of the People's Republic of Bangladesh, on December 5, 2014.
To remind readers, Article II of the Appendix deals with leniences in relation to the translations of certain works, while Article III deals with leniencies in regard to reproductions.

Thursday, 18 September 2014

In Brussels and interested in EU copyright law and policy? Here's an event for you

Aww ... is there anything more wonderful 
than discussing EU copyright in Brussels?
Can you think of anything more exciting than EU copyright law and policy? It's hard indeed, but the task becomes clearly impossible when it comes to discussing it where everything happens (at least policy-wise), ie Brussels.

This is why on Tuesday 28 October I am organising a new event entitled The wonderful life of EU copyright law and policy, hosted in the Brussels offices of superstar law firm Allen & Overy.

The focus of this seminar  will be on recent judicial, policy and legislative activity in our beloved EU copyright world.

The past year alone has been in fact one of intense activity for EU copyright: the Court of Justice of the European Union (CJEU) has issued several copyright decisions and touched upon a number of topical issues, spanning from jurisdiction in online infringement cases to hyperlinking, from blocking injunctions to the notion of parody; the Commission has been busy consulting with interested stakeholders about possible reform interventions, while two draft key documents (the Impact Assessment and White Paper) have been leaked; the EU legislative has adopted a new directive on collective rights management.

This seminar will provide an opportunity to both discuss the above in detail, including the practical impact of EU developments on copyright law and policy, and highlight what issues might be addressed in the near future at the judicial, policy and legislative levels.  

Topics will include:
  • CJEU case law from the past year, including Case C-170/12 Pinckney, Case C-355/12 Nintendo, Case C-466/12 Svensson, Case C-351/12 OSA, Case C-314/12 TelekabelCase C-435/12 ACI Adam, Case C-360/13 PRCACase C-201/13 Deckmyn [the latter will be discussed in great detail by Allen & Overy's chairman of the Global IP Group, Geert Glas], Case C-117/13 Ulmer.
  • Impact of CJEU case law on national copyright laws, with a special focus on exceptions and limitations.
  • Policy activity of the EU Commission, including the Public Consultation and the relevant Responses, and the leaked draft Impact Assessment and White Paper.
  • Directive 2014/26/EU and the future of collective rights management.
  • What to expect next, especially at the CJEU and Commission levels. 

Places are limited (with some tickets available for full-time students) so to provide everybody with the opportunity to discuss fully the present and future of EU copyright law and policy.

For further information and registration, click here.

Tuesday, 16 September 2014

Could Ladybird bring the first parody challenge?

Conceptual art ?
Back in March we reported that artist, comedian and writer Miriam Elia was facing the potential of a copyright action from the book publisher Penguin after she self published here own spoof version of a 'Ladybird' Book -  which she titled 'We Go To The Gallery' - exploring modern art where the traditional characters of Mummy, Peter and Jane grappled with Tracey Emin-style conceptual art. One page, 'God Is Dead', depicts an empty room, in which Mummy introduces the children to a severe form of Nietzschean nihilism, whilst another page pokes fun at the giant inflatable animals that the artist and former Wall Street commodities broker Jeff Koons is famous for.  In the 1960s and 1970s Ladybird's Key Words Reading Scheme (launched in 1964) was heavily used by British primary schools, using a reduced vocabulary to help children learn to read. This series of 36 small-format hardback books presented stereotyped models of British family life – the innocence of Peter and Jane at play, Mum the housewife, and Dad the breadwinner. Many of the illustrations in this series were by Harry Wingfield and Martin Aitchison. The image and text above is from Elia's spoof. 

Whilst we suggested in March that Penguin hadn't been too heavy handed - a reported 15 page legal letter and several thousand pounds in legal costs for Elia perhaps suggest otherwise: And the Times (15.09.14) updates us on the spat. It details that Elia self published 1,000 copies of We Go to the Gallery selling at £20 each. The book contained collages made from scenes cut from old Ladybird books, and also contains the artist's own work. In March it seemed Penguin had allowed Elia to sell at least some texts - it seemingly said that it would allow her one month to sell enough books to cover her costs, but any more of the self published book have to be destroyed. Elia has now said she found the legal threats 'terrifying". It seems she spent three and a half months in correspondence and hired a lawyer - but realised that less was more - the the best (and cheaper) way forward was to 'stop responding' to lawyers letters . On their part, Penguin said "we take our copyrights and trade mark rights very seriously - not least around our Ladybird brand, which has been developed over many years to help very young children read".
This might help your child read English

Back in March we said that it was "interesting to consider what difference will the new UK planned exception for parody and pastiche will add to this scenario - from this blogger's perspective certainly an arguable defence". Well, it seems Elia has now made some changes to the book to take advantage of that very defence for parody which comes into play on the 1st October in the UK. The children are now called John and Susan, and the LadyBird logo has been replaced with a dung beetle. However, the question remains, will that be enough for Penguin? Of course parody has much been on the mind of the 1709ers: Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others was a keenly-awaited decision which went some way to explaining how the InfoSoc Directive exception for the purpose of caricature, parody or pastiche should be applied in Europe:  The Court of Justice for the European Union noted that ‘parody’ must be defined in accordance with its usual meaning in everyday language and also found that a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied saying "the only, and essential, characteristics of parody are, on the one hand, to evoke an existing work while being noticeably different from it and, on the other, to constitute an expression of humour or mockery 

In addition The CJEU also held that that the application of the exception for parody must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception: the media release at the time explained "If a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message". It is for national courts to balance interests.

This is NOT about rioting
The United Kingdom's Intellectual Property Office's March 2014 guidance on the new exceptions explains that fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work, and has this to say:

The words “caricature, parody or pastiche” have their ordinary dictionary  meanings. In broad terms, parody imitates a work for humorous or  satirical effect, commenting on the original work, its subject, author, style, or some other target. Pastiche is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. A caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.


It is important to understand, however, that this change in the law only permits use for the purposes of caricature, parody, or pastiche to the extent that it is “fair dealing.” Fair dealing allows you only to make use of a limited, moderate amount of someone else’s work

Not usually Ladybird topics .......
So will Elia be able to successfully avail herself of the defence? The CopyKat suspects she will, but to an extent it's virgin territory in the United Kingdom. And it may not be the only test - it remains to be seen how far authors and publishers will allow themselves to be be pushed before they push back. The CopyKat has recently fallen for the charms of that FaceyBookie platform, and it was here he also spotted a link to a rather witty June 2014 posting on a blog called BAG OF DELIGHTS which is also a series of LadyBird spoofs ....... including book 'titles' such as 'Hot Dads', 'The Futility of Existence' and 'Blackmail'. Is this another spat waiting to happen or will Penguin allow this one to pass? That the titles 'Timmy's First Riots' or 'Bombs Made Easy' could ever be in any way be confused with 'Helping at Home' and 'Things We Like' and  'Kings and Queens' seems the most unlikely scenario imaginable. The images are another matter.

In Deckmyn, AG Cruz Villalon referred to "burlesque intention" as a requirement of parody. 
However, when considering the effect of a parody, he held that it is a common understanding that a parody must have a somehow humorous effect, and that it is left to (seemingly the courts) Member States to define what is humorous, also depending on different national sensitivities.  With a near blank slate, the English courts will need to look carefully at the parodied work and the rights of those whose work is parodies: what's funny, or what's not funny, might be a harder nut to crack. And will be interesting to see how moral rights  - the Section 80 CDPA author's right not to have his or her work subjected to derogatory treatment - might dovetail into any deliberations. Eleonora recently blogged about this over on the IPKat under the self explanatory header "Has the CJEU in Deckmyn de facto harmonised moral rights?". Of interest perhaps to Ladybird (or Ladybird authors) is the position in other EU states: In France the author has the perpetual right “au respect de son nom, de sa qualité et de son oeuvre” although other droit d’auteur countries (eg Italy) qualify the right of integrity by limiting it to distortions, mutilations or any other alterations prejudicial to the author’s honour or reputation. German law provides that alterations to a work that the author cannot reasonably refuse shall be permissible. Of particular interest might be the observation that in France parodies [subject to a specific exception under Article L-122-5 No 4 of the Code de la propriété intellectuelle] must be transformative and not harm the legitimate author, whether economically or morally. The article is well worth a visit as courts in the UK begin to come to terms with the reality of this new exception.

Will Ladybird be first to test this? Elia's work made me chuckle and the Bag of Delights titles are, to me, very amusing indeed. It may be that Ladybird chose a trade mark action before copyright in light of the new exception - even with a dung beetle now replacing the Ladbird logo - at least in Elia's tome. Time will tell.

For those interested in parody and all things locked in the 1970s can I recommend writer and designer Richard Littler's Scarfolk Council's facebook pages - the collection of erotic, submissive Christian/religious albums is an eye opener.

Monday, 15 September 2014

Scottish referendum: not an issue for publishers?

"North of a Border? Writers and the Scottish Referendum" is a feature article in the latest issue of the Authors' Lending and Collecting Society's ALCS News. Written by Scottish novelist Sara Sheridan (of the Mirabelle Bevan mysteries), this piece includes the following passage:
"... It remains to be seen how publishing models will be affected, if at all, by a Yes vote. Publishing Scotland has not issued a statement of its view, remaining strictly neutral, like many institutions, until the polling is complete. The publishing industry is worth around £3 billion a year to the Scottish economy and remains vibrant and well-funded by Creative Scotland (the Scottish Arts Council). There is no reason to believe that London-based publishers will change their view on publishing Scottish talent simply because of a boundary – they certainly don’t mind publishing Irish talent - it’s the talent that is key. In fact, the recent decision to provide public lending rights (PLR) payments from Ireland for UK writers proves that administering payments for rights across international boundaries is entirely possible ..."
This blogger thinks that this is certainly the case.  Whatever issues cause Scottish voters to side with a continuation of their Union with the rest of the United Kingdom or to go their own way when they vote later this week, it is unlikely that the impact of independence on publishing models on either side of the border will be a decisive factor.  Scotland will be expected to adhere to the same portfolio of international copyright and related rights obligations as it is presently committed to by its being part of the United Kingdom,  and this too would not appear to cause problems.

Do readers agree?

Friday, 12 September 2014

The CopyKat - reform is in the air ......

But will there be reform in Australia?
The Australian Finacial Review reports that Google and Facebook are fighting back against what they see as tough anti-piracy measures being ­considered by the Australian government which have resulted form the proposed reform review driven by Attorney-General George Brandis. These include a graduated response scheme, potentially making internet service providers liable for the piracy of their customers, and blocking overseas websites that host illegal content, such as The Pirate Bay. The submission by the Computer & Communications Industry Association (CCIA), which represents Google, Facebook, eBay and others says that rather than push for “graduated response schemes”, which would give illegal downloaders a series of warnings before punishing them, the government should consider the lack of legal content in Australia saying “There is little or no evidence that such schemes are successful, but there is no shortage of examples where such schemes have been distinctly unsuccessful” adding “Online copyright infringement is a global issue and any regulatory or legislative moves in one country tend to generate interest among stakeholders far beyond national shore.  And interestingly, even the government seems to sense no one is happy. Pay television provider Foxtel said in its submission that the proposal is "broader than it needs to be" although Foxtel CEO Richard Freudenstein said it would become uneconomic to make expensive, high-quality programs unless illicit downloading is tackled ("There will be a lot more cats on skateboards; we'll have a lot less Game of Thrones," he said);  Music Rights Australia warns it "will not be effective" and risks creating greater legal uncertainty for all parties. "Unanimous" opposition to the Australian government's proposed copyright law changes will force it "back to the drawing board" to tackle online piracy, Communications Minister Malcolm Turnbull has now said at a public forum in Sydney where Telstra executive director Jane van Beelen told the forum that there do not need to be any changes to copyright law. Rather, ISPs and rights holders should work together on a voluntary scheme to discourage internet users from infringing copyright. Turnbull concluded
"What is being canvassed in the discussion paper around authorisation liability - that is essentially the law that makes a person liable for the copyright infringement of another - those changes, I'd say there's been unanimity in that everyone has criticised them and found them inadequate from one level or another," 

The CCIA also said any move to hinder Australian ISPs and tech companies would put them “at a significant comparative disadvantage versus the European Union and the United States” as well as criticising  "cumbersome and restrictive territorial copyright restrictions" and bad "licensing conduct" in the music business. The CCIA also questions the content industries' stats about piracy, and the effectiveness particularly of three-strikes, where internet service providers are forced to send stern letters to file-sharing customers, including the threat of some sanction if infringement continues.

And on the same topic, Australian service provider iiNet has responded on a number of issues including privacy concerns, data retention plans and the effectiveness of the graduated response, as well as the contentious idea of blocking repeat offenders. iiNet’s chief regulatory officer Steve Dalby condensed the key points into a post on the ISP’s official blog, stating that the issue of copyright infringement can’t be dealt with by “applying a band aid” — it will require a “long term solution” that reduces piracy not by punishing infringers, but given people less reasons to download content illegally. He also saysthat most Australian consumers would be happy to pay for content, if someone actually offered it locally. He cites Foxtel’s own report of the success it’s had with season four of Game of Thrones, with the pay TV provider recording some 500,000 purchases and the “lengths” people go to in order to subvert geo-blocking for services such as Netflix. Dalby also hits out at rights holders’ use of “‘lobbynomics’ rhetoric” such as misleading information on the ecomonic imapct of piracy and the impact on employment - and the effect these claims have on policy and the media. The ISP also slammed the federal government for referring to online infringements as "theft", saying that it is a "moral rhetoric".

Michael Geist
TechDirt reveals that the leak of the complete CETA text  (the trade agreement between Canada and the EU) shows that Canada "fought off EU demands for more extreme copyright rules" and the leak has allowed Michael Geist to perform an analysis of how the copyright provisions in CETA have evolved since the first leak of the chapter covering intellectual monopolies, posted by Wikileaks back in 2009. At that time, the European Union was pushing for some "serious beefing-up of Canadian law" in this area: The leak seemingly reveals: "The starting point for copyright in CETA as reflected in 2009 leaked document was typical of European demands in its trade agreements. It wanted Canada to extend the term of copyright to life of the author plus 70 years (Canada is currently at the international standard of life plus 50 years), adopt tough new rules for Internet provider liability, create criminal sanctions for some copyright infringement, implement new rights for broadcasters and visual artists, introduce strict digital lock rules with minimal exceptions, and beef up enforcement powers. In other words, it was looking for Canada to mirror its approach on copyright" but with Geist concluding "The major European copyright demands were ultimately dropped and remaining issues were crafted in a manner consistent with Canadian law."

4CHan, the online image-based bulletin board where anyone can post comments and share images, has pledged to implement a Digital Millennium Copyright Act policy to allow content owners to get material that has been illegally shared removed.. The move comes after the site was the first to host recently leaked private photos from a number of celebrity's mobile phones on its discussion boards. And Reddit, which had mass postings of the celebrity nude shots, admits that copyright might well be the best defence against 'revenge porn' saying "We take down things we’re legally required to take down, and do our best to keep the site getting from spammed or manipulated, and beyond that we try to keep our hands off” with Jason Harvey, a Reddit systems administrator, explaining "But when it came to the nude photos, “it became obvious that we were either going to have to watch these subreddits constantly, or shut them down. We chose the latter.” : Despite the obvious privacy violations, the apparent harassment, and — in many cases, including this one — the overwhelming evidence of computer crimes - "the quickest, easiest way to get compromising images off the Internet is frequently copyright law". More on the Washington Post

I know little about this next matter apart from this brief post - any updates from our readers on this story would be much appreciated here on the 1709 Blog but it looks very inetresting. It appears that Netherlands has reached a settlement with the copyright organisation Norma after the suspension of the private-copy tax in 2007. Norma will receive EUR 10 million in damages for it's members. Norma won a ruling in the Dutch Courts earlier this year. The copy levy was collected on media players and storage devices to compensate copyright holders.  What more can you tell us?

Music publisher BMG has announced that it had entered into a direct deal with American streaming service Pandora covering its catalogue of songs that are otherwise repped by US collecting societies ASCAP and BMI. It means that those songs will now be licensed to Pandora directly by the music rights company, rather than via the collective licensing system. BMG told reporters that the new deal, "creates marketing and business benefits for Pandora, BMG and the songwriters it represents".

And with our poll now closed - more on that Black Macaque monkey selfie here .

Thursday, 11 September 2014

Canvassing Opinion: a guest post on Art & Allposters

One of the most fascinating copyright references to the Court of Justice of the European Union (CJEU) in recent times is Case C-419/13 Art & Allposters International BV [so far available in 17 languages, but not English].  1709 Blog team member has already written on this decision for the IPKat weblog (here), having warned the world that this was the best of the bunch of rulings in the pipeline (here).  We now have the pleasure of hosting the following comment on the Advocate General's Opinion in that case from Valentina Torelli, who summarises the Opinion as follows:
"What if you wanted to experience the great sensation of furnishing your home with a canvas reproducing a work made by famous painters, let's say 'The singing fish' from Joan Miró?

Today, Advocate General Pedro Cruz Villalón released his Opinion in Case C-419/13 Art & Allposters International BV, which dealt with the exhaustion of the right of distribution of a copyright protected work's reproduction, sold or otherwise put in the market of the European Economic Area (EEA) with the consent of the right holder, and afterwards modified and redistributed in that new form.

The story started when Art & Allposters International BV marketed reproductions of famous paintings on the internet in the form of posters, framed posters, posters on wood or reproductions on canvas. In particular, the latter were obtained by applying the method called 'canvas transfer': this entails that a poster be affixed on a laminate coating and then through a chemical process the image impressed on the poster passes to a canvas which is framed afterwards.

The Dutch collective society Stichting Pictoright, representing among the others various famous painters' heirs, unsuccessfully sued Allposters before the Dutch Roermond Court in order to prevent it from infringing its clients' rights. Later, Pictoright won in the appeal as the ’s-Hertogenbosch Court applied the Dutch Supreme Court's Poortvliet jurisprudence, which recognized the existence of a new publication of a copyright work when this work is distributed in a different form from the one in which the right holder originally placed the work in the market. The Dutch Court of Appeal concluded that the canvas transfer entailed a deep alteration of the work and that the right holders' consents were needed.

The dispute arrived before the Hoge Raad. On one hand, Allposters claimed that the case-law mentioned above had been erroneously applied because the exhaustion of the distribution right had been harmonized by Article 4 of Directive 2001/29 and that the subsequent alteration of the work's support did not affect the exhaustion of rights (occurring with the first commercialization of the tangible object by the right holder or with its consent). On the other hand, Pictoright argued that the right of adaptation has not yet been harmonized in the EU and that the Dutch case-law was thus still relevant.

The Hoge Raad referred the following two questions to the CJEU for a preliminary ruling:
Question no. 1

Does Article 4 of the Copyright 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 EEA by or with the consent of the right-holder 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?

Question no. 2

(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)?
Advocate General's conclusions regarding Question 1

Contrary to what Pictoright argued, the Advocate General advised that the canvas transfer did not entail any adaptation of the original work and that only the work's material support had been altered. In fact the transfer did not affect the image in the paintings as the method of reproduction was precisely directed to obtain the highest degree of identity with the original work while transferring the creation from the poster to the canvas.

The Advocate General explained that adaptation regards the work as an artistic creation, being possible to recognize the most emblematic form of adaptation in the cinematic reproduction of a literary work. One of the main features of the adaptation is the the use of different media and artistic techniques where the content of the artistic creation shape to the peculiarities of expression of the various arts. Further, adaptation may also occur in the light of an intervention on a work by means of a different media to create a totally different work in comparison to the original.

Accordingly the exact reproduction of posters on canvas precluded the dispute at issue from involving the adaptation of copyright-protected work. Thus, agreeing with Allposters, Advocate General Villalón concluded that Article 4 of the Copyright Directive was applicable, in that the present case referred to the right of authorizing or prohibiting any form of distribution of the original work or of its copies, with complete harmonization of the exhaustion of such distribution right.

Advocate General's conclusions regarding Question 2

The alteration of a work's reproduction as regards the support did have a consequence as to whether the exhaustion of the distribution right had been hindered or excluded, said the Advocate General. He draw these conclusions considering that the right of distribution either can be transferred in relation to all material support of a work or only in relation to some of them.

In fact, Article 4(2) links the exhaustion of the distribution right to the first sale or other transfer of the object in the EU by the right holder or with his consent. It is paramount to understand the case and the Advocate General's conclusions by taking into account that, when the propriety of a work's material support is transferred, the right of distribution is exhausted, while exhaustion of the copyright in a work (the subject-matter of which is the artistic creation) is a different matter. As observed by the Advocate General, all these considerations are also supported by the Recital 28 of the Directive 2001/29, which reads:
...The first sale in the Community of the original of a work or copies thereof by the right-holder or with his consent exhausts the right to control resale of that object in the Community. This right should not be exhausted in respect of the original or of copies thereof sold by the right-holder or with his consent outside the Community.
The Advocate General added that the canvas form in which Allposters sold the posters, which they had first acquired, resulted in such an alteration that a substantial modification of the copyright-protected work occurred. Indeed, Allposter incorporated the image of copyright-protected works in a canvas which was the same material support as for the original creations. To this extent the Advocate General went so far as to say that Allposter sold not the image of paintings but an equivalent of the paintings themselves. In any event, given the relevance of the alteration in which the works had been commercialised, Advocate Villalón concluded that Pictoright kept the right to control the distribution of the works' reproductions as it had not exhausted with the sale of the posters. Finally, the General Advocate did not pronounce on the specific conditions where the alteration is such to exclude that any exhaustion of the distribution right took place.

As to the relevance of the Dutch Poortvliet jurisprudence in the present case, the Advocate General reminded the court that the CJEU is only called to give guidelines on the compatibility of domestic law with the EU legislation.