Brussels, 25/06/2012 (Agence Europe) - A member state may bring an action under national criminal law against a transporter for the offence of aiding and abetting the prohibited distribution of copyright-protected works on national territory, even where those works are not protected by copyright in the vendor's member state, ruled the Court of Justice of the EU in a judgment handed down on Thursday 21 June in case C-5/11.
The Court was responding to the Bundesgerichtshof (Federal Court of Justice, Germany), which is hearing an appeal by Titus Alexander Jochen Donner, the manager of an Italian transport company, against a ruling by a German court which found him guilty of aiding and abetting the prohibited commercial exploitation of copyright-protected works in Germany. Donner had transported replicas of furnishings, made in Italy, for sale on behalf of an Italian internet sales site, to buyers in Germany. The replicas were protected by copyright in Germany but not in Italy. On delivery of the goods, the drivers working for Donner's company collected the purchase price and freight charges from the customers. Even though, from a legal point of view, ownership of the goods was transferred in Italy to the German customers, the German court took the view that the distribution for the purposes of copyright did not take place in Italy, but rather in Germany, where it was prohibited in the absence of authorisation from the copyright holders. The German federal court asked therefore if a member state can initiate criminal proceedings against a carrier for aiding and abetting in the distribution of replicas in Germany when these pieces are not under copyright in the country of the seller, Italy.
The Court observed that: - application of criminal law in the present case presupposes that there has been, on the national territory, a “distribution to the public” (Directive 2001/29/EC): a trader who directs his advertising at members of the public residing in a given member state and creates or makes available to them a specific delivery system and payment method, or allows a third party to do so, thereby enabling those members of the public to receive delivery of copies of works protected by copyright in that same member state, makes, in the member state where the delivery takes place, such a distribution; - in the present case, even though the prohibition on distribution in Germany, which is punishable under national criminal law, is a restriction on the free movement of goods, such a restriction may be justified by reasons relating to the protection of industrial and commercial property and cannot be deemed to give rise to a disproportionate or artificial partitioning of the markets. The restriction in question is “based on the differing conditions of copyright protection operating across the EU. These differences are inseparably linked to the very existence of those rights”. The application of criminal law provisions may, therefore, be considered necessary to protect the specific subject-matter of the copyright, which confers inter alia the exclusive right of exploitation. The restriction in question thus seems to be justified and proportionate to the objective pursued. (FG/transl.rt)