Titus Alexander Jochen Donner.
Date: 2012-06-21
23. Since Directive 2001/29 serves to implement in the European Union its obligations under, inter alia, the CT and, according to settled case-law, European Union 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 (see, to that effect, Case C-456/06 Peek & Cloppenburg [2008] ECR I-2731, paragraphs 29 to 32).
24. The notion of ‘distribution to the public ... by sale’ in Article 4(1) of Directive 2001/29 must accordingly, as observed by the Advocate General in points 44 to 46 and 53 of his Opinion, be construed as having the same meaning as the expression ‘making available to the public … through sale’ in Article 6(1) of the CT.
25. As observed by the Advocate General in point 51 of his Opinion, the content of the notion of ‘distribution’ under Article 4(1) of Directive 2001/29, must moreover be given an independent interpretation under European Union law, which cannot be contingent on the legislation applicable to transactions in which a distribution takes place.
26. It must be observed that 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 Article 4(1) of Directive 2001/29 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.
27. 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.
28. In circumstances such as those at issue in the main proceedings, where the delivery to a member of the public in another Member State is not effected by or on behalf of the trader in question, it is therefore 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’ under 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.
29. In the circumstances giving rise to the case in the main proceedings, factors such as the existence of a German-language website, the content and distribution channels of Dimensione’s advertising materials and its cooperation with Inspem, as an undertaking making deliveries to Germany, may be taken as constituting evidence of such targeted activity.
35. Moreover, as observed by the Advocate General in points 67 to 70 of his Opinion, the protection of the right of distribution cannot, in circumstances such as those of the main proceedings, be deemed to give rise to a disproportionate or artificial partitioning of the markets in a manner contrary to the Court’s case-law (see, to that effect, Case 78/70 Deutsche Grammophon Gesellschaft [1971] ECR 487, paragraph 12; Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International  [1981] ECR 147, paragraph 14; and EMI Electrola , paragraph 8).