Does Article 4 of Directive 2001/29 govern the answer to the question whether the distribution right of the copyright holder may be exercised with regard to the reproduction of a copyright-protected work which has been sold and delivered within the EEA by or with the consent of the rightholder in the case where that reproduction had subsequently undergone an alteration in respect of its form and is again brought into circulation in that form?

The rule of exhaustion does not apply in such situations where the medium of the work is altered.

If the answer to Question 1 is in the affirmative, does the fact that there has been an alteration as referred to in Question 1 have any bearing on the answer to the question whether exhaustion within the terms of Article 4(2) of [Directive 2001/29] is hindered or interrupted?

The alteration of the medium interrupts the exhaustion of the distribution right.

If the answer to Question 2(a) is in the affirmative, 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 within the terms of Article 4(2) of [Directive 2001/29]?

The alteration must result in a new object, such as changing the medium from paper to canvas.

Do those 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 (judgment of the Hoge Raad of 19 January 1979 in Poortvliet, NJ 1979/412)?

The national doctrine is not compatible as EU law provides a specific rule for exhaustion.

Exhaustion of distribution right does not apply if medium of work is altered before resale.

European Court of Justice (Fourth Chamber) · 22 januari 2015 · Judgment · Preliminary ruling

‛Reference for a preliminary ruling — Intellectual property — Copyright and related rights — Directive 2001/29/EC — Article 4 — Distribution right — Exhaustion rule — Concept of ‘object’ — Transfer of the image of a protected work from a paper poster to a painter’s canvas — Replacement of the medium — Impact on exhaustion’

Rechtsvraag

Does the rule of exhaustion of the distribution right under Article 4(2) of Directive 2001/29/EC apply when a reproduction of a protected work, initially marketed in the EU with the copyright holder's consent, undergoes a medium alteration, such as transferring an image from a paper poster to a canvas, and is re-marketed in its new form?

Regel

Art. 4(2), Directive 2001/29/EC (distribution right exhaustion rule)
Art. 6(1), WIPO Copyright Treaty (exclusive right of authors to authorize distribution)
Recital 28, Directive 2001/29/EC (copyright protection includes the exclusive right to control distribution of work in a tangible article)
Art. 2(a), Directive 2001/29/EC (exclusive reproduction right for authors)

Conclusie

The court concluded that the exhaustion of the distribution right under Article 4(2) of Directive 2001/29/EC does not apply when a reproduction of a protected work, after being marketed with the copyright holder's consent, undergoes a medium alteration and is re-marketed in its new form. The creation of a new object from the alteration requires new authorization from the copyright holder to distribute the new object.

Tijdlijn

20-12-1996 The World Intellectual Property Organization (WIPO) adopts the WIPO Copyright Treaty in Geneva.
16-03-2000 The European Community approves the WIPO Copyright Treaty by Council Decision 2000/278/EC.
22-05-2001 Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society is adopted.
22-09-2010 Rechtbank Roermond dismisses Pictoright's action against Allposters regarding copyright infringement.
03-01-2012 Gerechtshof te ’s-Hertogenbosch annuls the decision of Rechtbank Roermond and upholds most of Pictoright's claims.
12-07-2013 The Hoge Raad der Nederlanden decides to stay proceedings and refer questions to the ECJ for a preliminary ruling.
24-07-2013 The ECJ receives the request for a preliminary ruling from the Hoge Raad der Nederlanden.
22-05-2014 The ECJ conducts a hearing regarding the preliminary questions referred by the Hoge Raad der Nederlanden.
11-09-2014 The Advocate General delivers an opinion at the ECJ sitting.
22-01-2015 The ECJ delivers its judgment stating that the rule of exhaustion of the distribution right does not apply when the medium of a protected work is altered and resold.