|What would the designer think |
of Italian advertisements?
Article 4 par. 1 of the Copyright directive 2009/29 provides that "Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorize or
prohibit any form of distribution to the public by sale or otherwise".
The referral is about the "or otherwise" piece of this Article.
In an earlier referral (C-256/06 Peek & Cloppenburg/Cassina), the ECJ had decided that the words"or otherwise" should be interpreted narrowly in the sense "that the concept of distribution to the public, otherwise than through sale, .... , applies only where there is a transfer of the ownership of that object" (cf. margin number 41 of the decision) such that the mere offering of a counterfeit for use would fall under the scope of this provision.
The AG proposes to answer that Art. 4(1) of the InfoSoc directive forecloses offering the original or copies for sale to the public without consent, including where such offer has led to any acquisition, provided that such an offer was made with the manifest intention to enter into contracts of sale or other acts involving a transfer of ownership in them.
This blogger wonders if the manifest intention is a sufficiently objective criterion. What if the future advertisements say come and test our fancy Marcel Breuer chairs in our shop in Italy rather than come and buy our fancy Marcel Breuer chairs in our shop in Italy as was in the case underlying the referral?
This opinion has been commented by Eleonora Rosati here and by Jeremy Philipps here.