Court of Justice of the European Union

Protection of works of applied art of foreign origin

ECJ 24.10.2024, C-227/23 – Kwantum / Vitra, referring court: Hoge Raad der Nederlanden;
Advocate General: Maciej Szpunar

Main findings (non-official):

1. The substantive provisions of the Berne Convention have indirect effect in the EU, both under the WIPO Copyright Treaty (WCT), to which the Union is a party, and under the TRIPs Agreement. The CJEU may therefore find it necessary to construe the provisions of the Convention.

2. The scope of application of Union law is territorially defined and corresponds to the territories of the Member States, which is why neither the regulations in the country of origin of the work nor in the homecountry of its authors‘ are relevant. Also, the Information Society Directive applies to all works that fulfill the protection criteria set out in the Directive at the time of its implementation. The fully harmonised exploitation rights in this Directive (reproduction, distribution and communication to the public) also do not differentiate according to the country of origin of the work or the nationality of its author. Nothing to the contrary follows from the term ‘author’ either.

3. For works of applied art, it is therefore exclusively a question of whether they contain elements in which – according to the relevant provisions of EU law – the author’s own intellectual creation is expressed.
4. The equal treatment of works whose country of origin within the meaning of the Berne Convention is a third country also follows from the principle of national treatment in international copyright treaties.

5. The application of the material reciprocity rule provided for in Article 2(7) of the Berne Convention requires a legal order (Article 17(2) of the CFR in conjunction with Article 52(1) of the TFEU), the competence for which has been transferred from the Member States to the European Union. Also, material reciprocity is not set out as an exception or limitation in the exhaustive catalogue of Article 5 of the Information Society Directive either. In contrast to the comparison of terms of protection rule and the regulation of the resale right, Union law does not provide for an exception (material reciprocity) for works of applied art.

6. Member States may not invoke obligations under a treaty that entered into force prior to 1 January 1958 pursuant to Article 351(1) of the TFEU either, if there is no obligation to take a specific measure (here: application of material reciprocity). This in particular applies to Article 2(7) of the Berne Convention, especially since Member States can always go beyond the minimum protection of the Convention, according to Article 19 of the Berne.

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