Under Directive 2001/29/CE, on copyright, EU member states have the obligation to recognise in their legal system the exclusive right in support of the author to authorise or prohibit any way of distributing his works publicly.
This copyright exists as long as the copyright holder of the work does not make the first sale of the said object in the EU, which is understood to be the physical medium in which the work is represented.
The CJEU, in the context of a preliminary ruling, case C-419/13, had the opportunity to comment on whether the copyright to authorise or prohibit the work from being distributed reoccurs assuming that a work already placed on the market in the EU is marketed in a different physical medium from that authorised at the beginning.
The litigation under which the preliminary ruling was discussed occurred as a result of the company Allposter, dedicated among other things to selling posters with reproductions of works from different painters covered by the operating licence granted to this effect by the copyright collecting society Pictoright, starts marketing canvases that, through a chemical process, has the original painted ink from the various posters transferred to canvases.
In this regard, the CJEU declared that “the fact that the ink is saved during the transfer cannot affect the finding that the image’s physical medium has been altered,” and that “the consent of the copyright holder does not cover the distribution of an object incorporating his work if that object has been altered after its initial marketing in such a way that it constitutes a new reproduction of that work.” It concludes that “in such an event, the distribution right of such an object is exhausted only upon the first sale or transfer of ownership of that new object with the consent of the rightholder.”
By virtue of the above, it can be concluded that the copyright authorising or prohibiting the distribution of works is not affected by the authorisation that may have been granted in order to distribute the established work in a specific medium. As a result, the author can prohibit the commercialisation of his work in other physical mediums.
Vilá Abogados
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26th June 2015
