Directive 2001/29/EC (the Copyright Directive) provides for the harmonisation of certain aspects of copyright. The UK's implementing Regulations [1] came into force on 31 October 2003, amending the Copyright, Designs and Patents Act 1988 (CDPA).

At the time, the CDPA already provided for rights to prevent copying and distribution. However consideration of the scope of the wording of the Copyright Directive is of course relevant to the UK courts' implementation of the CDPA. The April 2008 case of Peek & Cloppenburg KG v Cassina SpA [2] provides such an opportunity, in this case in relation to the scope of "distribution" as a form of copyright infringement.

Peek operated clothing shops throughout Germany, and placed an armchair in a display window which had been held to be a copy of chairs in which Cassina held a licence of copyright. The offending chairs were manufactured without Cassina’s consent by an undertaking in Italy. At the time, Italian copyright law did not protect such furniture designs. Cassina therefore raised an action against Peek in Germany to cease the display and pay damages, based on its "distribution" in Germany.

The German court referred to the European Court of Justice (ECJ) the question of whether there was distribution to the public within the meaning of Article 4(1) of the Copyright Directive which provides:

"Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise."

The ECJ outlined that the Copyright Directive was designed to implement the World Intellectual Property Organisation (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, which define distribution as a right to authorise making available to the public the original or copies of works through sale or "other transfer of ownership".

The ECJ confirmed therefore that 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.

As a result, the ECJ confirmed that neither granting to the public the right to use reproductions of a work protected by copyright, nor exhibiting those reproductions to the public can constitute such a form of distribution.

This case provides a reassuring confirmation of the ECJ's views on "distribution" under the Copyright Directive.

[1] Copyright and Related Rights Regulations 2003 (SI 2003/2498)

[2] Case C 456/06

07 May 2008

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