LA IMPORTANCIA DEL RITUAL FUNERARIO EN LA SOCIEDAD ROMANA

From a legal perspective, a significant achievement of the InfoSoc Directive was that of defining (and distinguishing) the scope of the rights applicable to the different forms of circulation of copyright works in the digital environment. Articles 3 and 4 of the Directive established a careful distinction between the right of communication to the public of copyrighted works (which extends to making content available in an interactive manner, i.e. the ‘Internet way’) and the distribution right, which is strictly confined to the sale of physical media that incorporate a protected work.

As anticipated above, the Directive defines the right of making content available through digital networks by strictly delimiting the right of distribution of copyrighted works. The Directive refers to ‘distribution’ with exclusive regard to the circulation of physical (i.e. tangible) media that incorporate a protected work. The preamble of the Directive (cf. Recital 28) clarifies that copyright protection covers “the exclusive right to control distribution of the

60 _{C-466/12 Svensson v. Retriever Sverige AB (2014), hereinafter Svensson.} 61 _{See Svensson, par. 26-28.}

work incorporated in a tangible article”, in such a way that the principle of EU-wide exhaustion cannot apply to the dissemination of intangible copies over networks.63 _The distribution right has been interpreted by the CJEU in a few judgments that acknowledged the application of such right only to the sale of physical copies of copyright works. In particular, the CJEU’s case law made it clear that Article 4 of the InfoSoc Directive does not leave Member States with the freedom to provide for a rule of exhaustion having effects outside of the EU (i.e. international exhaustion).64 _{Moreover, the Court found that} the distribution right is not exhausted if a physical medium incorporating a copyright work has been altered after the sale of the medium in its original format without the copyright owner’s consent.65

Despite the clarity of the principle that links exhaustion (just) to physical media, in a landmark decision the CJEU caught the European Commission and copyright experts by surprise, holding that this principle can be applied also in the online environment. The Court held that the exclusive right of distribution of the owner of a computer programme should be regarded as being exhausted in relation to the sale of a copy of the programme that customers downloaded from the copyright holder’s site after having purchased it under a license granted for an unlimited period of time.66_{According to the CJEU, when this type of} sale occurs, the copyright owner is no longer entitled to block a second-hand market for such copies. This means that third parties who acquire the software licenses from the original users and sell them, while transferring also the related right to download updated copies of the computer programme, to their own customers do not infringe the right of distribution of the copyright owner. The CJEU reached this conclusion with specific regard to the Software Directive that – unlike the InfoSoc Directive – does not incorporate a right of making computer programmes available as a species of the right of communication to the public. The

UsedSoft judgment clarified that, for the distribution right to be exhausted with regard to computer programmes, the first acquirer should delete or make the original copy of the programme downloaded onto his/her computer unusable at the time of resale.67

63 _{According to Article 4(2), which draws from the acquis communautaire on exhaustion, the} distribution right ‘should not be exhausted within the Community in respect of the original or copies of the work, except where the first sale or other transfer of ownership in the Community of that object is made by the right-holder or with his consent.’

64 _{C-479/04 Laserdisken ApS v. Kulturministeriet (2006), par. 23-26.}

65 _{C-419/13 Art & Allposters BV v. Stichting Pictoright (2015), par. 37 to 40, and par. 46. This case} concerned a business (Art & Allposters) which markets through its websites posters and other kinds of reproductions of copyright works of art by famous painters. The claimant (Pictoright) was a Dutch collecting society having the mandate to exploit copyright on behalf of the copyright holders. Among other products, Art & Allposters sells images on canvases, which are obtained through a chemical process by which images incorporated in posters are transferred from paper to canvas and then stretched over a wooden frame. Pictoright successfully claimed that this process and the related business was unlawful without the copyright owner’s consent and the exercise of the distribution right concerning the posters was not exhausted when it comes to canvases.

66 _{C-128/11 UsedSoft GmbH v. Oracle International Corp. (2012), hereinafter UsedSoft.}

67 _{See UsedSoft, par. 78-79. As acknowledged by the CJEU, ascertaining whether such a copy has been} made unusable may prove to be difficult. Still – as the Court emphasised – copyright owners distributing computer programmes through physical media (e.g. CD-ROM or DVD) have to face the same problem, since it is only with great difficulty that they can make sure the original acquirer has not made copies of the programme that she continues to use after having sold her material medium.

This judgment clearly shows a problem of compatibility between the concepts of ‘distribution’ and ‘exhaustion’ incorporated in the InfoSoc Directive and the same notions under the lex specialis of the Software Directive. In short, this judgment showed a problem of alignment between these Directives that is mostly due to the fact that the EU software legislation was enacted (and kept in force, in spite of the recast of the Directive in 2009) when the online environment did not exist and distribution occurred exclusively through physical formats. The European Commission is fully aware of this problem, to such an extent that it intervened in UsedSoft to endorse the arguments of Oracle and to claim (unsuccessfully) the non-applicability of the ‘exhaustion’ principle in the online distribution of software, which should have been regarded as a form of making content available to the public on the grounds of Article 3 of the InfoSoc Directive (UsedSoft, par. 50).