Opinion of the European Copyright Society on sure chosen points of Case C-227/23, Kwantum Nederland and Kwantum België – Go Well being Professional

Supply: European Copyright Society

This weblog submit incorporates an edited model of the European Copyright Society’s Opinion on Case C-227/23, Kwantum Nederland and Kwantum België.


The Berne Conference underscores the nationwide remedy of overseas authors, permitting Union states to guard designs via numerous means. Article 2(7) introduces a fabric reciprocity take a look at, limiting copyright safety for works of utilized artwork not protected of their nation of origin. The Kwantum case (C-227/23), involving a dispute over a piece of design or utilized artwork, questions the appliance of the reciprocity take a look at in gentle of harmonized copyright legislation and the Courtroom of Justice of the EU (CJEU) choice in RAAP (C-265/19). The Dutch Supreme Courtroom seeks readability on whether or not EU legislation mandates copyright limitation via reciprocity, particularly regarding non-EU proper holders.

In EU legislation, the Design Directive and Regulation govern the connection between copyright and design safety for works of utilized artwork. Each devices stress the opportunity of cumulation of rights, permitting registered designs to qualify for copyright safety. Judicial harmonization, notably in Cofemel (C-683/17) and Brompton Bicycle (C-833/18), prolonged the originality necessities to all works–together with works of utilized artwork–limiting Member States’ autonomy. The proposed Design Directive and Regulation preserve the cumulation precept, aligning with CJEU case legislation on originality. On this Opinion, the ECS doesn’t make any pronouncement on the desirability of cumulation.

On the subject of fabric reciprocity, the CJEU in RAAP dominated that Article 8(2) of the Rental and Lending Directive (RLD) prohibits a Member State from excluding non-EEA performers from equitable remuneration for communication to the general public of their recordings. The Courtroom clarified that limitations to this proper, as per reservations underneath the WIPO Performances and Phonograms Treaty (WPPT), can solely be launched by the EU legislature and should adjust to Article 52(1) of the Constitution of Basic Rights of the EU (CFREU). Any limitation should be clearly outlined by legislation. The Courtroom emphasised that exclusion of non-EEA rightholders from remuneration should be specific, as the suitable falls throughout the elementary proper to mental property in Article 17(2) CFREU. Moreover, the Courtroom acknowledged that Article 8(2) RLD shouldn’t be interpreted to grant a remuneration proper solely to the phonogram producer, excluding the performer who contributed to the phonogram.

The ECS criticized the potential wider implications of RAAP, proposing another interpretation for the remuneration proper underneath Article 4(2) WPPT, suggesting that it ought to apply solely to performers in the direction of whom a direct and unreserved obligation exists on the premise of the WPPT. The ECS additionally criticized the Courtroom’s reliance on the CFREU, significantly viewing harmonized rights as summary slightly than particular person, creating uncertainty about limitations. The Courtroom’s conclusion that solely the EU legislature can restrict the suitable for nationals of third states raises issues about previous materials reciprocity purposes by Member States, and the retroactive results of the interpretation stay unclear, contributing to authorized uncertainty.

In RAAP, the CJEU interpreted the WPPT, emphasizing compliance with TRIPS and the Berne Conference’s core provisions in EU legislation. The Courtroom confused that materials reciprocity should be specific in statutory legislation, with solely the EU legislature defining limitations underneath harmonized guidelines like Article 8(2) RLD. Nevertheless, EU design laws permits Member States autonomy, regardless of harmonized ideas established in instances like Cofemel and Brompton Bicycle.

In contrast to RAAP, the CJEU could have extra flexibility in decoding EU copyright legislation for utilized artwork within the Kwantum case. Precedents like Cofemel and Brompton Bicycle permit the Courtroom to interpret materials reciprocity underneath Article 2(7) Berne Conference with out legislative intervention. Two alternate options for the Courtroom are decoding Article 2(7) to mandate materials reciprocity, stopping inner market points, or declaring Member States’ software appropriate with Union legislation, whether or not they apply materials reciprocity or supply unreserved nationwide remedy to works of utilized artwork based mostly on Article 19 of the Berne Conference.

Evaluating RAAP and Kwantum, materials reciprocity differs underneath Article 4(2) WPPT and Article 2(7) Berne Conference. RAAP handled a conditional exception, whereas Article 2(7) of Berne seems as a compulsory rule, implying that Union nations should deny copyright safety to works solely protected as designs and fashions of their nation of origin. Whereas nations can select to put aside materials reciprocity underneath Article 19 of Berne, if the CJEU views Article 2(7) as limiting copyright as an mental property proper underneath Article 17(2) CFREU, the necessities in Article 52(1) CFREU are already fulfilled with out legislative intervention.

Making use of these issues to the Kwantum case, it’s famous that Dutch legislation doesn’t present larger safety than Article 2(7) Berne Conference. Given Article 2(7)’s priority over home legislation within the Dutch authorized order, Dutch courts should apply the fabric reciprocity clause until EU legislation dictates in any other case. In our view, the CJEU might both acknowledge materials reciprocity as a requirement of Union legislation or declare Member States’ guidelines mirroring Berne’s reciprocity clause as appropriate with EU legislation.

In conclusion, Kwantum displays the uncertainty stemming from RAAP. The ECS advocates a nuanced method to the worldwide software of EU copyrights and associated rights, the place due consideration is taken to the regulation of worldwide conventions as a part of the EU authorized order. Within the case of copyright safety of works of utilized artwork, the CJEU might both apply the reciprocity rule set out in Article 2(7) Berne Conference immediately as a primary step or depart it to the Member States to determine on materials reciprocity or nationwide remedy, in accordance with the rules of the Berne Conference. As a second step the EU legislature could be effectively suggested to deal with the questions raised by RAAP and Kwantum at a extra elementary stage via legislative intervention.


Readers that need to talk about these and different cutting-edge copyright subjects are invited to hitch the ECS Convention this 12 months in Frankfurt.

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