Opinion of the European Copyright Society on Certain Selected Aspects of Case C-227/23, Kwantum Nederland and Kwantum België

• Published in: IIC - International Review of Intellectual Property and Competition Law 2024-09, Vol.55 (8), p.1316-1328
• Main Authors: van Eechoud, Mireille, Metzger, Axel, Quintais, João Pedro, Rognstad, Ole-Andreas
• Format: Article
• Language: English
• Subjects: Intellectual Property; IT Law; Law; Law and Criminolgy; Media Law; Opinion
• ISSN: 0018-9855; 2195-0237
• DOI: 10.1007/s40319-024-01504-1

The Berne Convention underscores the national treatment of foreign authors, allowing countries of the Union to protect designs through various means. Article 2(7) of the Convention (Berne) introduces a material reciprocity test, limiting copyright protection for works of applied art not protected in their country of origin. The Kwantum case (C-227/23), involving a dispute over a work of design or applied art, questions the application of the reciprocity test in the light of harmonised copyright law and the decision by the Court of Justice of the European Union (CJEU) in RAAP (C-265/19). The Dutch Supreme Court seeks clarity on whether EU law mandates a copyright limitation through reciprocity, especially for non-EU right holders. In EU law, the Design Directive and Design Regulation govern the relationship between copyright and design protection for works of applied art. Both instruments stress the possibility of the cumulation of rights, allowing registered designs to qualify for copyright protection. Judicial harmonisation, notably in Cofemel (C-683/17) and Brompton Bicycle (C-833/18), extended the originality requirements to all works – including works of applied art – and thus limited EU Member States’ autonomy. The proposed Design Directive and Design Regulation maintain the cumulation principle, aligning with CJEU case-law on originality. In this Opinion, the European Copyright Society (ECS) does not make any pronouncement on the desirability of cumulation. On the topic of material reciprocity, the CJEU ruled in RAAP that Art. 8(2) of the Rental and Lending Directive (RLD) prohibited a Member State from excluding non-EEA performers from equitable remuneration for communication to the public of their recordings. The Court clarified that limitations to this right could be introduced only by the EU legislature and had to comply with Art. 52(1) of the Charter of Fundamental Rights of the European Union (CFREU). Any limitation had to be clearly defined by law. The Court emphasised that any exclusion of non-EEA right holders from remuneration must be explicit, as the right fell within the fundamental right to intellectual property of Art. 17(2) CFREU. Additionally, the Court stated that Art. 8(2) RLD should not be interpreted as granting a remuneration right solely to the phonogram producer and excluding the performer who contributed to the phonogram. The ECS criticised the potential wider implications of RAAP , proposing an alternative interpretation of t