1709 Blog: for all the copyright community

Thursday, 4 December 2014

Mies's Pieces: when an offer for sale might be "distribution"

Ludwig Mies van der Rohe:
so much name, so little chair ...
Our friends in Curia have spared us an English version of Case C-516/13 Dimensione Direct Sales srl, Michele Labianca v Knoll International SpA, a Court of Justice of the European Union reference upon which Advocate General Pedro Cruz Villalón delivered his Opinion this morning. For those who enjoy a more detailed and lucid account of this Opinion than this blogger can provide, fellow blogger Eleonora -- a talented linguist as well as a copyright enthusiast -- has posted this analysis on the IPKat.

This is a reference from the German Bundesgerichtshof on the InsoSoc Directive, asking:
1. Does the distribution right under Article 4(1) of Directive 2001/29 include the right to offer the original or copies of the work to the public for sale?

If the first question is to be answered in the affirmative:

2. Does the right to offer the original or copies of the work to the public for sale include not only contractual offers, but also advertising measures?

3. Is the distribution right infringed even if no purchase of the original or copies of the work takes place on the basis of the offer?
What is this case all about? In brief, Knoll International SpA is the Italian bit of the Pennsylvania-based Knoll International Group, which makes and sells furniture worldwide. This furniture includes copyright-protected items designed by Marcel Breuer and Ludwig Mies van der Rohe. Knoll holds the exclusive rights of exploitation of furniture designed by Marcel Breuer and non-exclusive rights in the furniture of Ludwig Mies van der Rohe.

Dimensione (the company involved in Case C-5/11 Donner) is an Italian company managed by Labianca; it distributes designer furniture direct sales and offers furniture for sale on its website, in German among other languages. In 2005 and 2006, Dimensione advertised its services in Germany in various newspapers and magazines as well as a flyer which stated:
"Buy your furniture in Italy and pay only when removing or delivery by a carrier entitled to receive payment (service provided on request)".
Knoll International seised [Google Translate offers "grabbed"] the Landgericht Hamburg (Germany), applying for injunctive relief and the disclosure of information. An order was granted in Knoll's favour and this decision was affirmed on appeal.  Dimensione then appealed further to the Bundesgerichtshof. which asked the questions above.

This morning the Advocate General advised the Court of Justice to rule that Article 4(1) of the InfoSoc Directive must be interpreted as meaning that the distribution right includes the right of the copyright owner of the original or copies of a copyright work to prohibit any person from offering the original or copies for sale to the public without consent, including where such offer has led to any acquisition, provided that such an offer was made with the clear intention to enter into contracts of sale or other act involving a transfer of ownership in them.

It's up to the Court of Justice to decide whether to adopt this Opinion or not; the odds are in favour of it doing so in light of its earlier case law -- though this is a bit of an affront to the notion of "distributing" as being actually moving something from one place to another.  This blogger confines himself to one short comment which is that we have become so used to thinking of copyright-infringing acts as being connected to the internet and communication technologies that it's refreshing to be reminded that it applies to solid objects too.

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