Article Bernt Hugenholtz: Everything is harmonized. The CJEU’s decision in Kwantum v. Vitra

Article by Bernt Hugenholtz. This article was previously published on Kluwer Copyright Blog. Just seven weeks after the release of the AG’s Opinion the Kwantum v. Vitra case was decided by the European Court. For Dutch background and early criticism, see my earlier blog. The main question asked to the Court was whether a Member State may unilaterally apply the Berne Convention’s rule of material reciprocity (Article 2(7) BC) to non-EU works. According to this provision, Berne states are not obliged to grant copyright protection to works that originate from a country that does not itself provide for copyright protection of industrial designs. One of such countries is the United States, the country of origin of the Eames chair in the case at hand. Given the short time frame between opinion and decision, the Court’s answer does not surprise. It is for the EU legislature, not the individual Member States, to restrict the scope of application of harmonized EU copyright law. Since the acquis does not provide for material reciprocity, works of applied art are unconditionally protected in the EU.

The Court’s reasoning relies heavily on the AG’s Opinion and the Court’s earlier decision in RAAP. In that case the CJEU had decided that Member States may not unilaterally invoke material reciprocity regarding the remuneration right accorded to phonogram producers and performing artists under Article 8(2) of Directive 2006/115/EC. Like the AG, the Court emphasizes that the Information Society Directive, which harmonizes the main rights of exploitation, does not comprise a rule of material reciprocity – in contrast to the Term Directive and the Artist’s Resale Right Directive that do. Allowing individual Member States to individually apply Article 2(7) BC would undermine the InfoSoc Directive’s aim of reducing fragmentation of the internal market.