Peek v. Cassina on copyrigth and distrubution rights

Fabio Angelini

The ECJ has decided on April 17, Case C‑456/06, Peek & Cloppenburg KG v Cassina SpA. Cassina manufactures furniture and its collection includes furniture manufactured (through a licensing agreement) according to the designs of Charles-Édouard Jeanneret (Le Corbusier). Peek & Cloppenburg (Peek) operates menswear and womenswear shops throughout Germany. In a display window of its outlet, Peek placed an armchair which was copy of Le Courbusier’s chairs for decorative purposes.

These items of furniture did not come from Cassina but were manufactured without Cassina’s consent by an undertaking in Bologna (Italy). Such furniture was not protected at the time by copyright in the Member State in which it was manufactured. Cassina brought an action against Peek seeking an order that it must desist from that practice and provide Cassina with information and pay damages.

After the Landgericht Frankfurt had granted Cassina’s application and the appeal court had, essentially, confirmed the judgment given at first instance, Peek & Cloppenburg brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice) (Germany). The Bundesgerichtshof decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) (a) Can it be assumed that there is a distribution to the public otherwise than by sale, within the meaning of Article 4(1) of Directive 2001/29 ..., in the case where it is made possible for third parties to make use of items of copyright-protected works without the grant of user involving a transfer of de facto power to dispose of those items? (b) Is there a distribution under Article 4(1) of [Directive 2001/29] also in the case in which items of copyright‑protected works are shown publicly without the possibility of using those items being granted to third parties?

(2) If the answers are in the affirmative: Can the protection accorded to the free movement of goods preclude, in the abovementioned cases, exercise of the distribution right if the items presented are not under copyright protection in the Member State in which they were manufactured and placed on the market?’".

The ECJ in a tersely written opinion (which seems to be the standard in response to certain German-originated requests for preliminary ruling) said no to question 1 and thus did not need to examine the second question.

For the ECJ, the concept of distribution to the public, otherwise than through sale, of the original of a work or a copy thereof, applies only where there is a transfer of the ownership of that object (quite intuitively…).

As a result, neither granting to the public the right to use reproductions of a work protected by copyright nor exhibiting to the public those reproductions without actually granting a right to use them can constitute such a form of distribution". Germans will need to re-assess their laws and Cassina will likely to pay lots of restitution and legal fees to Peek…