Merijn de Weerd wrote: [...] > The full cite is > HR 19 januari 1979, NJ 1979, 412 (Hovener/Poortvliet) > > I noted it got cited in Canada: > http://scc.lexum.umontreal.ca/en/2002/2002scc34/2002scc34.html
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 dauteur (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 dauteur 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. regards, alexander. _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
