May furniture that was produced without the consent of the copyright holder be placed in a store and made available for use by the public? Does this constitute an infringement of copyright? A decision by the Federal Court of Justice provides answers.

Infringement

Through furniture from

Le Corbusier.

22. July 2009

from

Clemens Pfitzer

May furniture that was produced without the consent of the rights holder be placed in a store and made available for public use? Does this constitute an infringement of copyright? A decision by the Federal Court of Justice provides answers.

What is it all about?

An Italian company produces upholstered furniture, including furniture based on Le Corbusier’s designs. To this end, it has concluded an exclusive license agreement with the rights holder of Le Corbusier’s designs for the production and distribution of the furniture.

The company Peek & Cloppenburg furnished one of its stores with furniture based on Le Corbusier’s designs. However, the furniture did not come from the aforementioned Italian company, but from a competitor, also from Italy. This competitor did not have the laws on Le Corbusier’s designs, but in the past there was no copyright protection available in Italy for works of applied art such as furniture.

The Italian furniture company then sued Peek & Cloppenburg for injunctive relief. The legal dispute, which was also referred to the ECJ in the meantime, finally ended before the Federal Court of Justice.

Decision by the court

In its decision(judgment of 22.09.2009 – Ref. I ZR 247/03), the Federal Court of Justice dismissed the action brought by the Italians.

Although the works are protectable as works of applied art under the applicable German law, there is no infringement of the distribution right to which the Italians are entitled. The right of distribution is the law to offer the original or reproductions of the work to the public or to place it on the market.

On the basis of the ECJ’s reference for a preliminary ruling ( judgment of April 17, 2008 – case no. C-456/06), a distribution in the sense of copyright law only exists if the distribution takes place by way of sale or if ownership of the work is transferred. In the ECJ’s opinion, merely making the work available to the public for use or presenting it to the public does not constitute a form of distribution.

There was therefore no infringement of the copyright of the rights holder due to the lack of distribution. Furthermore, the Information Society Directive prohibits the EU member states from exceeding the protection of the directive, so that the standards set out by the ECJ in its decision must be applied.