Distribution to the public in a Member State: when a trader targets the public in that Member State and enables delivery in that Member State, whether or not via a third party.
"28. In circumstances such as those at issue in the main proceedings, where the delivery to a member of the public in another Member State is not effected by or on behalf of the trader in question, it is therefore for the national courts to assess, on a case-by-case basis, whether there is evidence supporting a conclusion that that trader, first, did actually target members of the public residing in the Member State where an operation giving rise to a ‘distribution to the public’ under Article 4(1) of Directive 2001/29 was carried out and, second, whether he must have been aware of the actions of the third party in question.
29. In the circumstances giving rise to the case in the main proceedings, factors such as the existence of a German-language website, the content and distribution channels of Dimensione’s advertising materials and its cooperation with Inspem, as an undertaking making deliveries to Germany, may be taken as constituting evidence of such targeted activity.
30. Accordingly, the answer to the first part of the question referred is that 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, or allows a third party to do so, thereby enabling those members of the public to receive delivery of copies of
works protected by copyright in that same Member State, makes, in the Member State where the delivery takes place, a ‘distribution to the public’ under Article 4(1) of Directive 2001/29."
Articles 34 and 36 TFEU do not preclude (national) criminal prosecution for prohibited distribution to the public, concluded in Member State where works are not or no longer protected by copyright.
"34. Those same considerations apply a fortiori in circumstances such as those which gave rise to the main proceedings, since the disparity giving rise to restrictions on the free movement of goods results not from differences between the legal rules in force in the different Member States in question, but rather because those rules are, in practice, not enforceable as against third parties in one of those Member States. The restriction on a trader established in a Member State resulting from the prohibition on distribution under criminal law in another Member State is also, in that type of situation, based not on an act or the consent of the rightholder, but on the disparity, between the different Member States, in the conditions of protection of the respective copyrights.
37. Consequently, the answer to the second part of the question referred is that Articles 34 TFEU and 36 TFEU must be interpreted as meaning that they do not preclude a Member State from bringing a prosecution under national criminal law for the offence of aiding and abetting the prohibited distribution of copyright-protected works where such works are distributed to the public on the territory of that Member State in the context of a sale, aimed specifically at the public of that State, concluded in another Member State where those works are not protected by copyright or the protection conferred on them is not enforceable as against third parties."
C-5/11 - ECLI:EU:C:2012:370