CJEU rules that EU Member States cannot set their own reciprocity clauses under the Berne Convention

The chair at the centre of the Dutch litigation on its own …

Last week, the Court of Justice of the European Union (CJEU) issued its much- (though not long-) awaited judgment in Kwantum, C-227/23, substantially upholding the Opinion of Advocate General (AG) Szpunar [IPKat here], which was only issued last month.

Let’s see more in detail how the CJEU (unsurprisingly) reasoned [for a background to the case, see IPKat here], before considering the broader implications.

The CJEU fully endorsed AG Szpunar’s reading of the InfoSoc Directive, notably that that legislation is not premised on any requirement that the author and/or the work originate from any particular country. Instead, like the EU treaties and as it was also noted in RAAP, the territorial scope of the InfoSoc Directive is the EU (including the Netherlands, where the background case is being litigated).

The InfoSoc Directive exhaustively defines a copyright holder’s exclusive rights and related exceptions/limitations. Its scope of application inter alia includes works of applied art. The latter are protected upon merely fulfilling a requirement of originality. In essence, any time that there is a ‘work’ as defined by the CJEU [see Levola Hengelo; IPKat here] that is marketed in the EU, the InfoSoc Directive shall apply.

Turning to the core of the referral – that is any national competence to set reciprocity clauses under Berne – the CJEU noted that:

• Both ‘work’ and ‘author’ in the InfoSoc Directive are autonomous concepts of EU law, given that no reference is made to national law in either respect. Hence, they must receive uniform interpretation and application across the EU;
• Unlike other directives (e.g., Article 7(1)(f) of Directive 2006/116), the InfoSoc Directive does not say anything regarding the geographic origin of a work or its author;
• The InfoSoc Directive was adopted to: (i) establish an internal market for copyright goods and services. Such an objective would be “disregarded” if the InfoSoc Directive “regulated, in the European Union, only copyright protection for works originating in a Member State or works the author of which is a national of a Member State.”; (ii) implement into the EU legal order the WIPO Internet Treaties. The WCT requires compliance with Articles 1 to 21 of Berne. Hence, “it would be contrary to the international obligations of the European Union implemented by [the InfoSoc Directive] in the field of intellectual property for that directive to harmonise copyright in respect of works the country of origin of which is a Member State or the author of which is a national of a Member State, while leaving it to the national law of the Member States to determine the legal regime applicable to works the country of origin of which is a third country or the author of which is a national of a third country.”

In light of the foregoing, the CJEU ruled that:

1. Member States cannot rely on Article 2(7) of the Berne Convention to exempt themselves from the obligations under the InfoSoc Directive. As such, they are not entitled to set their own reciprocity clauses;
2. Based on the wording of the InfoSoc Directive, the EU decided not to set a reciprocity clause, given that that directive – unlike other EU legislation (e.g., the already mentioned Article 7(1) of Directive 2006/116, but also Article 7(1) of Directive 2001/84) – protects works irrespective of the national origin of either the work or its author.

As already noted when the AG Opinion was released, considering well-established CJEU case law, it was unavoidable for the CJEU to rule as it did.

Those hoping for a different outcome might have had a legitimate wish, but also an unrealistic one. Something along the lines of: do fairies exist? One could wish that – and a fairy might even fall down dead somewhere if a child says that they do not believe in them – but whether that is also true is a different matter.

… and complete with resting Kat

For over 15 years – I would put the start to, once again, Infopaq [IPKat anniversary post here] – it has been clear that the CJEU conceives a copyright system where Member State’s discretion is extremely limited, if any at all. That extends well beyond international law to encompass EU (statutory) law itself: if one thinks of what the CJEU has done with originality alone – first the de facto harmonization under the InfoSoc Directive, then the extension thereof as sole criterion of protection to works of applied art, despite the different wording of EU design legislation – it is evident that the seeds of Kwantum were sown not with RAAP but well before that. If not Infopaq, then the outcome of Kwantum was already anticipated by Flos back in 2011 and then Cofemel in 2019.

As to works of applied art specifically, readers know that there are two referrals currently pending on them before the CJEU: Mio [IPKat here] and konektra [IPKat here]. Given the questions referred, the relevance of either referral is zero if the focus is on the conditions under which works of applied art are protected by copyright (it is originality alone). Their relevance is, instead, from the perspective of how originality is to be assessed and measured, notably having regard to the infringement test. In this sense, these referrals will be valuable alongside the other pending referral, Institutul G. Călinescu, concerning derivative works and what makes them protectable [IPKat here].

In sum, and to conclude: those who are upset with the CJEU for how Kwantum was decided should probably take a rest on a comfortable chair – whether it is an original DSW or a replica – and divert their energies to these other pending CJEU referrals instead.