Court of Justice EU: Kwantum v Vitra and the criterion of material reciprocity
29-10-2024 Print this page
(Courtesy of Sven Klos, Allard Ringnalda and Jorn Torenbosch, KLOS c.s. and Margot van Gerwen and Charlotte Garnitsch, Taylor Wessing)
Subject matter of applied art falls within the material scope of EU law: Provided that that subject matter can be classified as a ‘work’ within the meaning of Directive 2001/29 (Infosoc). EU law precludes Member States from applying the criterion of material reciprocity to works of applied art of which the country of origin is a third country and the author of which is a national of a third country: ‘Work’ concept Infosoc-Directive also covers third-country works of applied art, application criterion of material reciprocity would undermine the harmonisation of copyright in the internal market and it is for the EU legislature alone to determine whether the grant of the rights laid down in Art. 2(a) and art. 4(1) Infosoc-Directive should be limited. Article 351 TFEU must be interpreted as not permitting a Member State to apply the criterion of material reciprocity to a work from the United States of America: A Member State cannot rely on Article 2(7) of the Berne Convention in order to exempt itself from the obligations arising from the Infosoc-Directive and the Berne Convention does not prohibit granting copyright protection to such works and it does not preclude a claim to the benefit of any greater protection.
In this judgment, the Court addresses the questions of the Supreme Court of the Netherlands regarding the criterion of material reciprocity of Article 2(7) Berne Convention (BC).
The facts that see to this case and the questions that have been referred can be found here.
The answer to the first question, according to the Court, is that a situation in which a company claims copyright protection for an applied art object marketed in a Member State falls within the material scope of EU law, provided that that object may be classified as a "work" within the meaning of Directive 2001/29.
Questions 2 to 4 are answered together by the Court. The reformulation reads:
“Do Articles 2(a) and 4(1) of Directive 2001/29 (Infosoc), read in conjunction with the Charter, preclude application by Member States of the criterion of the material reciprocity of Article 2(7) BC, to a work of applied art whose country of origin is a third country or whose author is a national of a third country?”
The purpose of the Infosoc Directive is to avoid differences in protection and thus to prevent restrictions on the free movement of services and products incorporating Intellectual Property. This objective would be prejudiced if Infosoc regulated in the EU only the copyright protection of works originating in a Member State or of which the author is a national of a Member State.
Infosoc intends to implement certain international obligations arising from the WCT. According to Article 9 (1) TRIPS ex Article 1 (4) WCT, the EU must comply with Articles 1 to 21 BC. It is clear from Article 5(1) BC that authors enjoy, for the works for which they are protected under this Convention, in the countries of the BC Union which are not the country of origin of the work or author, the rights which the various laws now or in the future grant or will grant to their own nationals. It would be contrary to the EU's international obligations for the Infosoc Directive to harmonize copyright for authors from its own member states, but in the case of works from third countries or by authors who are nationals of third countries, to leave it to the national law of the member states to determine which legal regime applies.
Articles 2a and 4(1) Infosoc apply to works of applied art originating from third countries or whose author is a national of a third country. This prevents the application of the criterion of material reciprocity in national law of member states because it undermines the harmonization of copyright in the internal market. Such an exception must be made by law and it is not for national legislatures to determine whether the granting of that right in the EU should be limited for works of which the country of origin is a third country or the author is a national of a third country.
By its fifth question, the referring court asks, in essence, whether the first paragraph of Article 351 TFEU must be interpreted as permitting a Member State, in derogation from the provisions of European Union law, to apply the criterion of reciprocity set out in the second sentence of Article 2(7) BC to a work whose country of origin is the USA. The BC displays the characteristics of an international agreement within the meaning of Article 351 TFEU and the BC entered into force before 1958, yet in answering questions 2 to 4, it was held that Member States can no longer avail themselves of the criterion of material reciprocity. Where a member state has entered into an international agreement before its accession to the Union that allows it to take a measure that is found to be contrary to EU law, but does not oblige it to do so, that member state must refrain from such a measure.
IPPT20241024, CJEU, Kwantum v Vitra
