Opinion of the European Copyright Society on sure chosen elements of Case C-227/23, Kwantum Nederland and Kwantum België – Cyber Tech

This weblog publish comprises 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 therapy of international authors, permitting Union states to guard designs via varied means. Article 2(7) introduces a cloth 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 applying of the reciprocity take a look at in gentle of harmonized copyright regulation and the Court docket of Justice of the EU (CJEU) determination in RAAP (C-265/19). The Dutch Supreme Court docket seeks readability on whether or not EU regulation mandates copyright limitation via reciprocity, particularly regarding non-EU proper holders.

In EU regulation, the Design Directive and Regulation govern the connection between copyright and design safety for works of utilized artwork. Each devices stress the potential 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 regulation 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 Court docket clarified that limitations to this proper, as per reservations beneath 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 Elementary Rights of the EU (CFREU). Any limitation should be clearly outlined by regulation. The Court docket emphasised that exclusion of non-EEA rightholders from remuneration should be express, as the correct falls inside the elementary proper to mental property in Article 17(2) CFREU. Moreover, the Court docket 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 an alternate interpretation for the remuneration proper beneath 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 Court docket’s reliance on the CFREU, significantly viewing harmonized rights as summary relatively than particular person, creating uncertainty about limitations. The Court docket’s conclusion that solely the EU legislature can restrict the correct for nationals of third states raises considerations 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 regulation. The Court docket pressured that materials reciprocity should be express in statutory regulation, with solely the EU legislature defining limitations beneath harmonized guidelines like Article 8(2) RLD. Nonetheless, EU design laws permits Member States autonomy, regardless of harmonized ideas established in circumstances like Cofemel and Brompton Bicycle.

Not like RAAP, the CJEU could have extra flexibility in decoding EU copyright regulation for utilized artwork within the Kwantum case. Precedents like Cofemel and Brompton Bicycle permit the Court docket to interpret materials reciprocity beneath Article 2(7) Berne Conference with out legislative intervention. Two options for the Court docket are decoding Article 2(7) to mandate materials reciprocity, stopping inside market points, or declaring Member States’ utility appropriate with Union regulation, whether or not they apply materials reciprocity or provide unreserved nationwide therapy to works of utilized artwork based mostly on Article 19 of the Berne Conference.

Evaluating RAAP and Kwantum, materials reciprocity differs beneath 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 beneath Article 19 of Berne, if the CJEU views Article 2(7) as limiting copyright as an mental property proper beneath Article 17(2) CFREU, the necessities in Article 52(1) CFREU are already fulfilled with out legislative intervention.

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

In conclusion, Kwantum displays the uncertainty stemming from RAAP. The ECS advocates a nuanced strategy to the worldwide utility 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 may both apply the reciprocity rule set out in Article 2(7) Berne Conference instantly as a primary step or go away it to the Member States to resolve on materials reciprocity or nationwide therapy, in accordance with the rules of the Berne Conference. As a second step the EU legislature could be effectively suggested to handle the questions raised by RAAP and Kwantum at a extra elementary degree via legislative intervention.

Readers that need to focus on these and different cutting-edge copyright matters are invited to affix the ECS Convention this yr in Frankfurt.