Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

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61995J0349 European Court reports 1997 Page I-06227 12 1999 no 481 - Rechtspraak van de week 1999 p.392 (résumé) NOTES Klauer, Irene: St. Galler Europarechtsbriefe 1997 p.635-639 Idot, Laurence: Europe 1998 Janvier Comm. no 34 p.22 Mok, M.R.: TVVS ondernemingsrecht en rechtspersonen 1998 p.28-29 Hodson, Sarah: European Intellectual Property Review 1998 p.N52-N53 Pérez, M.G.: Revue du marché unique européen 1998 no 1 p.158-160 Berr, Claude J.: Journal du droit international 1998 p.504-505 Hermitte, Marie-Angèle: Journal du droit international 1998 p.559 Norman, Helen: European Intellectual Property Review 1998 p.306-312 Gonzalez Vaqué, Luis: Revista de Derecho Comunitario Europeo 1998 p.233-241 Spoor, J.H.: Bijblad bij de industriele eigendom 1998 p.272-273 Di Garbo, Gianfranco: Giustizia civile 1998 I p.1479-1483 Clark, Andrew: European Intellectual Property Review 1998 p.328-334 Vilmart, Christine: La Semaine juridique - entreprise et affaires 1998 p.1821-1829 Peyron, Luca: Giurisprudenza italiana 1998 p.1866-1868 Van Nispen, C.J.J.C. ; Verkade, D.W.F.: Bijblad bij de industriele eigendom 1998 p.12-13 Verkade, D.W.F.: Nederlandse jurisprudentie ; Uitspraken in burgerlijke en strafzaken 1999 no 216 PROCEDU Reference for a preliminary ruling ADVGEN Jacobs JUDGRAP Gulmann DATES of document: 11/11/1997 of application: 13/11/1995 © An extract from a JUSTIS database 224
61997J0061 European Court reports 1998 Page I-05171 1 Judgment of the Court of 22 September 1998 Foreningen af danske Videogramdistributører, acting for Egmont Film A/S, Buena Vista Home Entertainment A/S, Scanbox Danmark A/S, Metronome Video A/S, Polygram Records A/S, Nordisk Film Video A/S, Irish Video A/S and Warner Home Video Inc. v Laserdisken. Reference for a preliminary ruling: Retten i Ålborg - Denmark. Copyright and related rights - Videodisc rental. Case C-61/97. 1 Free movement of goods - Industrial and commercial property - Copyright and related rights - National legislation giving the holder of the copyright in a film the right to oppose its renting out - Rental of copies of a film in a Member State with the consent of the copyright holder - Opposition by the rightholder to rental in another Member State - Whether permissible (EC Treaty, Arts 30 and 36) 2 Approximation of laws - Copyright and related rights - Directive 92/100 - Business of renting and lending originals and copies of works protected by copyright - Exclusive rental right introduced by the directive - That right not exhausted by sale or any other act of distribution (Council Directive 92/100, Art. 1) 1 It is not contrary to Articles 30 and 36 of the EC Treaty for the holder of an exclusive rental right to prohibit copies of a film from being offered for rental in a Member State even where the offering of those copies for rental has been authorised in the territory of another Member State. The principle of exhaustion of distribution rights where copyright works are offered for sale by the rightholder or with his consent is expressed in the settled case-law of the Court according to which the exclusive right guaranteed by the legislation of a Member State on industrial and commercial property is exhausted when a product has been lawfully distributed on the market in another Member State by the actual proprietor of the right or with his consent. However, literary and artistic works may be the subject of commercial exploitation, whether by way of public performance or of the reproduction and marketing of the recordings made of them. By authorising the collection of royalties only on sales to private individuals and to persons hiring out video cassettes, it is impossible to guarantee to makers of films a remuneration which reflects the number of occasions on which the video cassettes are actually hired out and which secures for them a satisfactory share of the rental market. The release into circulation of a picture and sound recording cannot therefore, by definition, render lawful other acts of exploitation of the protected work, such as rental, which are of a different nature from sale or any other lawful act of distribution. Just like the right to present a work by means of public performance, rental right remains one of the prerogatives of the author and producer notwithstanding sale of the physical recording. The same reasoning must be followed as regards the effects produced by the offer for rental. The specific right to authorise or prohibit rental would be rendered meaningless if it were held to be exhausted as soon as the object was first offered for rental. 2 It is not contrary to Directive 92/100 on rental right and lending right and on certain rights related to copyright in the field of intellectual property for the holder of an exclusive rental right to prohibit copies of a film from being offered for rental in a Member State even where the offering of those copies for rental has been authorised in the territory of another Member State. In Case C-61/97, REFERENCE to the Court under Article 177 of the EC Treaty by Retten i Ålborg (Denmark) for a preliminary ruling in the proceedings pending before that court between Foreningen af danske Videogramdistributører, acting for Egmont Film A/S, Buena Vista Home Entertainment © An extract from a JUSTIS database 225
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