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Re: "GPL requirement could have a chilling effect on derivativedistros"

From: Alexander Terekhov
Subject: Re: "GPL requirement could have a chilling effect on derivativedistros"
Date: Mon, 03 Jul 2006 11:57:57 +0200

Merijn de Weerd wrote:
> The full cite is
> HR 19 januari 1979, NJ 1979, 412 (Hovener/Poortvliet)
> I noted it got cited in Canada:

That is really helpful. Thanks.

> Since it's from 1979, no one has thought to put up an
> English-language translation of the case.
> However the case did not center on 'derivative work' but instead
> asked the question if the effect of a first sale (exhaustion)
> would be annulled by exploiting the work "in a new way".
> And the Dutch Supreme Court said yes.

To quote the Supreme Court of Canada,

63 Under the civiliste tradition, and particularly in France, the right
of reproduction was interpreted to include not only the right to make
new copies of the work (reproduction stricto sensu) but also what is
called by French jurists the “right of destination” (droit de
destination).  The right of destination gives the author or artist the
right to control to a considerable extent the use that is made of
authorized copies of his or her work:  see generally A. Lucas and H.-J.
Lucas, Traité de la propriété littéraire & artistique (1994), at p. 235;
F. Pollaud-Dulian, Le droit de destination: le sort des exemplaires en
droit d’auteur (1989).  See also Crim., January 28, 1888, Bull. crim.,
No. 46, p. 68; Crim., December 2, 1964, Bull. crim., No. 320, p. 672;
Crim., October 20, 1977, Bull. crim., No. 315, p. 801; Civ. 1st, May 5,
1976, Bull. civ., No. 161, p. 128; Paris, March 18, 1987, D.
1988.Somm.209, note Colombet; Civ. 1st, April 19, 1988, Bull. civ., No.
112, p. 76; Paris, April 27, 1945, Gaz. Pal. 1945.1.192.

64 The “droit de destination” applies in other civiliste jurisdictions. 
Thus in Hovener/Poortvliet, HR January 19, 1979, NJ  412, brought to our
attention by counsel for the respondent, the Netherlands Supreme Court
found a violation of the droit d’auteur where a purchaser of an
authorized art calendar cut out the pictures, stuck them to coasters,
and resold them.  This was regarded by the court as an altogether new
and different “publication”.  In Frost v. Olive Series Publishing Co.
(1908), 24 T.L.R. 649 (Ch. Div.), by contrast, the English court did not
regard as an infringement the cutting out of pictures from books,
pasting them on cards, and reselling.  “[The recirculation of] objects
already in existence is not reproduction in a material form”:  Laddie et
al., supra, at p. 614.

65 It seems to me that the respondent is pursuing a form of “droit de
destination” in this case.  But, under our Copyright Act, the “right of
destination” as such does not exist. Generally, the copyright holder
does not by virtue of his or her economic rights retain any control over
the subsequent uses made of authorized copies of his work by third party
purchasers.  Where in specified situations the Act gives the copyright
holder some power to control or benefit from subsequent uses of
authorized copies of his work, the relevant provisions are narrowly
framed to apply only to very specific forms of reproduction, as in the
case of sound recordings (s. 15(1)) or computer programs (s. 3(1)(h)). 
If a general right to control subsequent usage existed, it would not
have been necessary to make specific provision in these cases.

Note that 3(1)(h) is about renting and lending. Similarly, I don't 
think that “droit de destination” applies to software in any civiliste
jurisdictions in the EU. I mean DIRECTIVE 2001/29/EC OF THE EUROPEAN
PARLIAMENT AND OF THE COUNCIL of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the information
society which doesn't allow "first sale" of software be preempted by
“droit de destination”.


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