CJEU: No exhaustion rule for transformed works

Europe’s highest court has said that an EU law governing the exhaustion of a distribution right cannot be applied when a copyrighted work has been transformed from its original form.

The Court of Justice of the European Union (CJEU) was ruling on a case between Allposters, which sells posters online, and Dutch collecting society Pictoright.

Allposters offers clients reproductions of copyright protected posters on canvases.

In order to produce an image on canvas, a synthetic coating (laminate) is applied to a paper poster depicting the chosen work. The image is then transferred from the paper to a canvas through a chemical process.

Pictoright, which manages copyright for a host of artists, opposed the reproduction of its clients’ works without their consent and called on Allposters to stop offering the service.

The case, which has been raging since 2010, reached the Dutch Supreme Court (Hoge Raad der Nederlanden) last year. That court asked the CJEU for a preliminary judgment on its interpretation of EU law.

Europe’s highest court was asked to issue guidance on the exhaustion doctrine concerning the distribution right.

That exhaustion doctrine, which concerns a copyright holder’s distribution right and its exhaustion, is outlined under article 4(2) of the EU’s directive on the information society (InfoSoc).

In its judgment, published yesterday (January 22), the CJEU said that in a situation like in this case, the exhaustion right cannot be applied as the new work has undergone a transformation.

It said: “Article 4(2) of the directive must be interpreted as meaning that the rule of exhaustion of the distribution right does not apply in a situation where a reproduction of a protected work … has undergone an alteration of its medium, such as the transfer of that reproduction from a paper poster onto a canvas, and is placed on the market again in its new form.”

Neither Allposters nor Pictoright responded to a request for comment.