Criminal proceedings against Imran Syed.
Date: 2018-12-19
20


It should be observed that, since Directive 2001/29 serves to implement in the European Union the obligations of the Union under, inter alia, the CT and since, 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 of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 23 and the case-law cited).
21


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 (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 24 and the case-law cited).
22


Taking that context into account, the Court has 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 (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 25 and the case-law cited).
23


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 (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 26).
24


In that regard, if distribution to the public must be considered as proven where a contract of sale and dispatch has been concluded, the same is true of an offer of a contract of sale which binds its author, since such an offer constitutes, by its very nature, an act prior to a sale being made (judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 27).
25


The Court has also held, in essence, that such an act can constitute an infringement of the exclusive distribution right, provided for in Article 4(1) of Directive 2001/29, even if that act is not followed by the transfer of ownership to a purchaser of the protected work or a copy thereof (see, to that effect, judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 32).
26


Therefore, an act prior to the actual sale of a work or a copy thereof protected by copyright, which takes place without the rightholder’s consent and with the objective of making such a sale, may infringe the distribution right as defined in Article 4(1) of Directive 2001/29 (see, to that effect, judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraph 28).
27


Although carrying out the sale is not a necessary element for the purpose of establishing an infringement of the right of distribution, it must nonetheless be proven, to that end, that the goods concerned are actually intended to be distributed to the public without the rightholder’s consent, inter alia by their being offered for sale in a Member State where the work at issue is protected (see, by analogy, judgment of 13 May 2015, Dimensione Direct Sales and Labianca, C‑516/13, EU:C:2015:315, paragraphs 29 and 32 and the case-law cited).