The Supreme Court of the Netherlands has recently requested the European Court of Justice – in proceedings C- 419/13 – to issue a decision on the following prejudicial issues:
(1) if, pursuant to Article 4 of the Copyright Directivet, the right of distribution of the copyright’s holder, who has already transferred ownership of the object, can still be exercised with respect to a reproduction of the original which has been changed from a formal point of view prior to its marketing;
2(a) if the circumstance that the reproduced work has undergone an alteration is relevant in order to determine if the exhaustion principle provided by article 4.2. of the Copyright directive has been excluded;
2(b) what criteria should then be applied in order to determine whether an alteration exists in respect of the form of the reproduction which hinders or interrupts exhaustion;
2(c) if the above criteria leave room for the criterion developed in Netherlands national law to the effect that there is no longer any question of exhaustion on the sole ground that the reseller has given the reproductions a different form and has disseminated them among the public in that form.
The above prejudicial issues have been raised in a dispute that has been brought in the Netherlands between Stichting Pictoright (hereinafter: “Pictoright”) – Dutch company that is in charge of collecting and protecting the copyright belonging to the heirs of some renowned painters – and Art & Allposters International BV (hereinafter: “Allposters”) - company marketing, via the internet, art reproductions of famous works of art on posters, framed posters, posters on wood or canvas. In particular, the Pictoright complained that the reproduction of the work on canvas by AllPosters generated a new publication of the work, as it had been disclosed to the public in a form other than that for which the protection afforded by copyright was already exhausted, and brought the matter before the Court in order to obtain the inhibition of the Dutch AllPosters from the creation and subsequent sale of copies made on canvas.
On 11 September 2014, the Attorney General expressed its reasoned opinion on the questions above, and specifically held that the exclusive right of distribution of Pictoright is not be considered exhausted in relation to works on canvas. According to the Advocate General, in fact, the amendment made by AllPosters to the copy of the work by transferring it to the canvas - support of the same nature as that in which the intellectual creation was originally built - is so important to create an "equivalent of the picture in itself, which is something different than the reproductions of works whose distribution rights had been exhausted.
The last word on the issue now is due to the Court of Justice of the European Union. If the Court were to disagree with the view expressed by the Advocate General, the decision issued would greatly strengthen the warranties granted to the owners of intellectual property rights. Such a decision would, in fact, consent to the author to preserve the right to distribute its works on physical media significantly different from those for which, on the other hand, the exploitation rights were already exhausted as a result of the marketing of the work by the same author or with his consent.