Free movement of goods
Copyright may restrict free movement, court rules
By Nathalie Vandystadt | Friday 22 June 2012
The free movement of goods in the European Union is not absolute. It may be restricted by copyright, holds the EU Court of Justice in a 21 June ruling (Case C-5/11). An accomplice, such as a “transporter of protected works,” may be liable to prosecution.
The case concerns Titus Alexander Jochen Donner, a German national, found guilty by the Munich regional court for “aiding and abetting the prohibited commercial exploitation of copyright protected works”. The counterfeits concerned are replicas of furnishings in the so-called Bauhaus style, protected by copyright in Germany.
The replicas of the works originated in Italy, where at the time of the facts – 2002-2007 - they were not protected by copyright. The objects were then sold to customers residing in Germany by the Italian firm Dimensione Direct.
Transport was provided by an Italian company, In.Sp.Em, of which Donner was the principal director. After the ruling against him, Donner lodged an appeal with the German Federal Court, which referred the matter to the EU Court of Justice.
The EU court was not any more lenient, however. It held, firstly, that the transporter is responsible for distribution: “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 […] makes, in the member state where the delivery takes place, such distribution”.
The court added that the prohibition on distribution in Germany, which is sanctioned by national criminal law, constitutes a restriction on the free movement of goods in the EU. Such a restriction may, however, be justified by reasons relating to the protection of industrial and commercial property, particularly since the practical conditions of copyright protection vary across the EU.