Maximum Protection Conferred by EU Directive on Copyright

While we are used to interpret EU directives in the sense that they define minimum requirements the national laws have to fulfil, an exception to this rule may be found in the ECJ case (Cassina ./. Peek & Cloppenburg ), which was initiated by the BGH in the case I ZR 247/03, known as “Le-Corbusier-Möbel II”.

The defendant, a well-known brand of fashion shops in Germany, had legally bought armchairs designed by Le Corbusier in Italy. At that time, the Italian Copyright excluded furniture from protection. The armchairs have been used in Germany in a lounge in front of the changing room and as a decoration in the window of the shop.

One of the questions conferred to the ECJ was whether or not this use was a “distribution to the public” in the sense of Article 4(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

The ECJ answered in the negative by pointing out that since the directive is intended to implement at Community level the Community’s obligations under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, the wording of the directive needs to be interpreted in the light thereof. Those Treaties link the concept of distribution exclusively to that of transfer of ownership.

The BGH argues that the german § 17 UrhG implementing the right to distribution to the public of Article 4(1) of Directive 2001/29/EC into german law has to be interpreted in conformity with the directive. This is not very surprising. More surprising is how this conformal interpretation is achieved. The BGH argues that the purpose of the directive is not only to ensure a minimum protection but rather to harmonize the application of copyright in the information society so as to prevent a refragmentation of the internal market due to significant differences in protection (cf. e.g. recital 6 of the directive). As a consequence, the interpretation has to respect this purpose.

The latter object, however, may only be achieved if the directive also defines a maximum protection conferred in the member states.

The interesting point for me is that the same argument can not only be applied to the right to distribution to the public but generally to any right conferred by the directive 2001/29/EC. It would be interesting to systematically check the consequences of this reasoning onto the national application of copyright law rather than waiting for the pertinent decisions of the BGH.