2. Article 2(a), Article 3(1) and Article 4(1) of Directive 2001/29

must be interpreted as meaning that subject matter which reflects the personality of its author as an expression of his or her free and creative choices constitutes a work, for the purposes of those provisions. Choices dictated by various constraints, particularly technical, which bound that author during the creation of that subject matter are not free and creative, and nor are choices which, while free, do not bear the imprint of the author's personality by giving that subject matter a unique appearance. Circumstances such as the author's intentions during the creative process, his or her sources of inspiration and the use of shapes that are already available, the likelihood of a similar independent creation or the recognition of that subject matter in professional circles may be taken into account where appropriate, but are not, in any event, necessary or decisive for the purpose of establishing the originality of the subject matter for which protection is claimed.

3. Article 2(a), Article 3(1) and Article 4(1) of Directive 2001/29

must be interpreted as meaning that in order to establish a copyright infringement, it is necessary to determine whether creative elements of the protected work have been reproduced in a recognisable manner in the allegedly infringing subject matter. The same overall visual impression created by the subject matter in conflict and the degree of originality of the work concerned are irrelevant. The possibility of a similar creation cannot justify a refusal to grant protection.

2. Article 2(a) and Article 4(1) of Directive 2001/29, read in conjunction with Article 17(2) and Article 52(1) of the Charter of Fundamental Rights of the European Union,

must be interpreted as meaning that, as EU law currently stands, they preclude Member States from applying, in national law, the criterion of material reciprocity laid down in the second sentence of Article 2(7) of the Convention for the Protection of Literary and Artistic Works, signed in Berne on 9 September 1886 (Paris Act of 24 July 1971), as amended on 28 September 1979, in respect of a work of applied art the country of origin of which is a third country and the author of which is a national of a third country. It is for the EU legislature alone, in accordance with Article 52(1) of the Charter of Fundamental Rights, to provide, by means of EU legislation, whether the grant in the European Union of the rights laid down in Article 2(a) and Article 4(1) of that directive should be limited.

Article 4(1) of 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 must be interpreted as meaning that the storage by a retailer of goods bearing a motif protected by copyright on the territory of the Member State where the goods are stored may constitute an infringement of the exclusive distribution right, as defined by that provision, when that retailer offers for sale, without the authorisation of the copyright holder, goods identical to those which he is storing, provided that the stored goods are actually intended for sale on the territory of the Member State in which that motif is protected. The distance between the place of storage and the place of sale cannot, on its own, be a decisive element in determining whether the stored goods are intended for sale on the territory of that Member State.

2. EU law, and in particular Article 6 of Directive 2006/115, must be interpreted as not precluding a Member State from making the application of Article 6(1) of Directive 2006/115 subject to the condition that the digital copy of a book made available by the public library must have been put into circulation by a first sale or other transfer of ownership of that copy in the European Union by the holder of the right of distribution to the public or with his consent, for the purpose of Article 4(2) of 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.

Article 4(1) of 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 must be interpreted as meaning that it allows a holder of an exclusive right to distribute a protected work to prevent an offer for sale or a targeted advertisement of the original or a copy of that work, even if it is not established that that advertisement gave rise to the purchase of the protected work by an EU buyer, in so far as that advertisement invites consumers of the Member State in which that work is protected by copyright to purchase it.

Article 4(2) of 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 must be interpreted as meaning that the rule of exhaustion of the distribution right set out in Article 4(2) of Directive 2001/29 does not apply in a situation where a reproduction of a protected work, after having been marketed in the European Union with the copyright holder's consent, has undergone an alteration of its medium, such as the transfer of that reproduction from a paper poster onto a canvas, and is placed on the market again in its new form.

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/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.

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 copies of copyright-protected works where copies of 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.

The concept of distribution to the public, otherwise than through sale, of the original of a work or a copy thereof, for the purpose of Article 4(1) of 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, applies only where there is a transfer of the ownership of that object. As a result, neither granting to the public the right to use reproductions of a work protected by copyright nor exhibiting to the public those reproductions without actually granting a right to use them can constitute such a form of distribution.

1. Consideration of the first question does not reveal any information such as to affect the validity of Article 4(2) of 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.

2. Article 4(2) of Directive 2001/29 is to be interpreted as precluding national rules providing for exhaustion of the distribution right in respect of the original or copies of a work placed on the market outside the European Community by the rightholder or with his consent.