Opinion of the Advocate General — ECLI:EU:C:2012:195
Date: 2012-03-29
Language of the case: German
Subject matter: Right of establishment;Free movement of goods;Intellectual, industrial and commercial property;Approximation of laws;Quantitative restrictions;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Distribution to the public — Definition — Advertising for copies of works not protected by copyright in a Member State directed, from that Member State, at members of the public residing in another Member State granting them copyright protection, and creation of a system for the delivery of such copies in that second Member State — Included (European Parliament and Council Directive 2001/29, Art. 4(1)) 2. Free movement of goods — Industrial and commercial property — Copyright — Protection — Prohibited sale of copies of works not protected by copyright in the vendor’s Member State and protected by copyright in the purchaser’s Member State — Criminal proceedings instituted in the Member State where the protected works are distributed against a party who aids and abets that distribution — Lawfulness (Arts 34 TFEU and 36 TFEU) 1. A trader who directs his advertising at members of the public residing in a given Member State and creates or makes available to them a specific delivery system and payment method, or allows a third party to do so, thereby enabling those members of the public to receive delivery of copies of works protected by copyright in that same Member State, makes, in the Member State where the delivery takes place, a ‘distribution to the public’ within the meaning of Article 4(1) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society. The distribution to the public is characterised by a series of acts going, at the very least, from the conclusion of a contract of sale to the performance thereof by delivery to a member of the public. Thus, in the context of a cross-border sale, acts giving rise to a ‘distribution to the public’ under that provision may take place in a number of Member States. In such a context, such a transaction may infringe on the exclusive right to authorise or prohibit any forms of distribution to the public in a number of Member States. A trader in such circumstances bears responsibility for any act carried out by him or on his behalf giving rise to a ‘distribution to the public’ in a Member State where the goods distributed are protected by copyright. Any such act carried out by a third party may also be attributed to him, where he specifically targeted the public of the State of destination and must have been aware of the actions of that third party. Where the delivery to a member of the public in another Member State is not effected by or on behalf of such a trader, it is for the national courts to assess, on a case-by-case basis, whether there is evidence supporting a conclusion that that trader, first, did actually target members of the public residing in the Member State where an operation giving rise to a ‘distribution to the public’ within the meaning of Article 4(1) of Directive 2001/29 was carried out and, second, whether he must have been aware of the actions of the third party in question. Factors such as the existence of a website in the language of the Member State of delivery, the content and distribution channels of the vendor’s advertising materials and his cooperation with such a trader, as an undertaking making deliveries in that Member State, may be taken as constituting evidence of such targeted activity. (see paras 26-30, operative part 1) 2. Articles 34 TFEU and 36 TFEU must be interpreted as not precluding a Member State from bringing a prosecution under national criminal law for the offence of aiding and abetting the prohibited distribution of copies of copyright-protected works where copies of such works are distributed to the public on the territory of that Member State in the context of a sale, aimed specifically at the public of that State, concluded in another Member State where those works are not protected by copyright or the protection conferred on them is not enforceable as against third parties. The restriction on the free movement of goods resulting from such protection is accordingly justified and proportionate to the objective pursued, in circumstances where the accused intentionally, or at the very least knowingly, engaged in operations giving rise to the distribution of protected works to the public on the territory of a Member State in which the copyright enjoyed full protection, thereby infringing on the exclusive right of the copyright proprietor. (see paras 36-37, operative part 2)