Dimensione Direct Sales srl and Michele Labianca v Knoll International Spa.
Date: 2015-05-13
17. In that regard, suffice it to note that, according to settled case-law of the Court, questions relating to the interpretation of EU law, referred by the national court in the legal and factual context which it defines under its jurisdiction, enjoy a presumption of relevance (see, inter alia, judgment in X , C‑651/11, EU:C:2013:346, paragraph 20 and the case-law cited). The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment in Chartered Institute of Patent Attorneys , C‑307/10, EU:C:2012:361, paragraph 32 and the case-law cited).
22. It should be borne in mind that the notion of ‘distribution’ under that provision, constitutes an independent concept of EU law, the interpretation of which cannot be contingent on the legislation applicable to transactions in which a distribution takes place (see, to that effect, judgment in Donner , C‑5/11, EU:C:2012:370, paragraph 25).
23. It also follows from the case-law of the Court that, since Directive 2001/29 serves to implement in the European Union its obligations under, inter alia, the CT and, according to settled case-law, EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union, the notion of ‘distribution’, contained in Article 4(1) of that directive, must be interpreted in accordance with Article 6(1) of the CT (judgment in Donner , C‑5/11, EU:C:2012:370, paragraph 23).
24. The notion of ‘distribution to the public ... by sale’ in Article 4(1) of that directive therefore has the same meaning as the expression ‘making available to the public … through sale’ in Article 6(1) of the CT (see, to that effect, judgment in Donner , C‑5/11, EU:C:2012:370, paragraph 24).
25. Taking that context into account, the Court specifically found that 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. 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 (judgments in Donner , C‑5/11, EU:C:2012:370, paragraphs 26 and 27, and in Blomqvist , C‑98/13, EU:C:2014:55, paragraph 28).
26. It follows from that line of case-law, including the words ‘at the very least’ used by the Court, that it is not excluded that the acts or steps preceding the conclusion of a contract of sale may also fall within the concept of distribution and be reserved, exclusively, to the holders of copyright.
27. Although the Court has already held that distribution to the public must be considered proven where a contract of sale and dispatch has been concluded (judgment in Blomqvist , C‑98/13, EU:C:2014:55, paragraph 29), the same is true of an offer of a contract of sale which binds its author. In fact, such an offer constitutes, by its very nature, an act prior to a sale being made.
28. As regards an invitation to submit an offer, or a non-binding advertisement for a protected object, those also fall under the series of acts taken with the objective of making a sale of that object. Indeed, the Court held in paragraph 30 of the judgment in Donner (C‑5/11, EU:C:2012:370) that 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, thereby enabling those members of the public to receive delivery of copies of works protected in that Member State, makes, in the Member State where the delivery takes place, a ‘distribution to the public’ under Article 4(1) of Directive 2001/29.
29. The Court has also held, concerning goods coming from a non-member State which are copies of goods protected in the European Union by copyright, that those goods may infringe that right where it is proven that they are intended to be put on sale in the European Union, such proof being provided, inter alia, where it turns out that the goods have been sold to a customer in the European Union or offered for sale or advertised to consumers in the European Union (see, to that effect, judgment in Blomqvist , C‑98/13, EU:C:2014:55, paragraph 32).
32. It follows from that conclusion that 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.
33. Indeed, although it is true that the Court has held, in its judgment in Peek & Cloppenburg (C‑456/06, EU:C:2008:232, paragraphs 33, 36 and 41), which concerned the option of using reproductions of a protected work, that the concept of distribution to the public of the original of a work or a copy thereof, for the purpose of Article 4(1) of Directive 2001/29, entails a transfer of the ownership of that object, the fact remains that an infringement of the distribution right can be observed where consumers located in the territory of the Member State in which that work is protected are invited, by targeted advertising, to acquire ownership of the original or a copy of that work.
34. That interpretation is consistent with the objectives of that directive set out in recitals 9 to 11, which state that the harmonisation of copyright must take as a basis a high level of protection, that authors have to receive an appropriate reward for the use of their work and that the system for the protection of copyright must be rigorous and effective (see judgment in Peek & Cloppenburg , C‑456/06, EU:C:2008:232, paragraph 37).