The Advocate-Common’s opinion within the Kwantum v. Vitra referral is exceptional in a number of methods. The case issues the safety underneath Dutch copyright of the long-lasting “DSW” chair designed by American designers Charles and Ray Eames. Kwantum, a well-liked low-budget furnishings retailer chain, bought copies of the chair with out rightholder Vitra’s permission. Earlier than the Dutch courts the case turned on the interpretation of Article 2(7) of the Berne Conference – an exception to Berne’s floor rule of nationwide therapy. Based on Article 2(7) the designer of a piece of utilized artwork that originates in a BC nation the place such works should not eligible for copyright (however solely for particular design safety), just isn’t entitled to copyright safety in different Berne states. The logic behind this provision is the shortage of worldwide consensus on the safety of works of utilized artwork. Whereas the European Design Safety Directive and Regulation require EU Member States to use copyright and design proper cumulatively, a number of nations outdoors Europe exclude or severely prohibit copyright safety of commercial designs. One such nation is america. Based on US copyright regulation, the design of a so-called “helpful article” could also be copyrighted solely insofar as its aesthetic facets are separable from is utilitarian options. The coverage rationale behind Article 2(7)’s reciprocity rule is to stop nations just like the US from asymmetrically benefiting from copyright safety in different states. Certainly, the US helpful article doctrine mixed with Article 2(7) BC has made it troublesome if not unimaginable for American designers to depend on copyright safety in EU states.
In a transfer that shocked each events to the Dutch proceedings and the Dutch Advocate Common, the Supreme Court docket of the Netherlands determined to remain the proceedings and ask inquiries to the CJEU. Impressed by the CJEU’s RAAP choice, which held that EU regulation doesn’t enable a Member State to disclaim remuneration rights to artists and report producers, primarily based on a reservation clause within the WPPT however with out a clear authorized foundation in EU regulation, the Dutch Supreme Court docket requested the European Court docket whether or not EU regulation does enable the Netherlands to use Article 2(7) of the Berne Conference.
Ignoring the recommendation of the governments of France, Belgium and the Netherlands, the reply AG Szpunar proposes is a powerful no. Whereas this reply might not shock in gentle of RAAP, the way in which the AG involves his opinion is exceptional. The questions requested by the Dutch Supreme Court docket might have (and, in my view, ought to have) impressed a deep dive into the advanced interrelationship between the Berne Conference, EU copyright regulation and the IP clause of the EU Constitution (Article 17(2)).
As a substitute, the AG’s argument may be summarized in only a few sentences. It begins by stating that the Info Society Directive (Directive 2001/29), as interpreted by the CJEU in Cofemel and Brompton, has harmonized the requirements for copyright safety of works of utilized artwork according to works normally. A design should due to this fact be authentic and its expression identifiable with ample precision and objectivity. “The place a subject has these traits and due to this fact constitutes a piece, it should qualify for copyright safety, in accordance with Directive 2001/29” [para. 26].
The AG goes on to look at that “neither Directive 2001/29, nor the case-law on the idea of ‘work’ throughout the which means of that directive lay down a situation that their applicability is proscribed to works originating in Member States or nations belonging to the European Financial Space (EEA)”. Due to this fact, the AG concludes, “that directive should be construed as which means that it’s irrelevant, for a piece to have the ability to qualify for the safety conferred by the directive, whether or not its nation of origin is a Member State of the EEA or a 3rd nation” [para. 27]. Based on the AG, “it isn’t even essential to consult with the European Union’s worldwide obligations. The wording of Directive 2001/29 is ample in itself” [para. 31].
That’s mainly it. The InfoSoc Directive doesn’t expressly incorporate Article 2(7) BC. Due to this fact, it applies to all works of utilized artwork, no matter their provenance. Reciprocity just isn’t allowed, because the Directive doesn’t say it’s. US designs are to be copyright protected within the Member States on the identical footing as designs originating within the EU.
Whereas simplicity is commonly the hallmark of fact, I’m not satisfied by the AG’s reasoning. The AG’s argument hinges on a literal studying of the InfoSoc Directive, or slightly: on a literal studying of silence. “In regulation, silence may be as specific as phrases”, ruminates the AG elsewhere in his opinion [para. 49]. Sure, a requirement of reciprocity is talked about nowhere within the Directive, however that is hardly stunning. The Directive was by no means meant to harmonize issues of worldwide utility. The Directive did no extra (and no much less) than harmonize a core set of financial rights (replica, communication and distribution) and corresponding exceptions and limitations. To deduce from the Directive’s silence on issues of worldwide utility an specific legislative option to put aside Berne’s rule of reciprocity, is a travesty.
Other than distorting the Directive’s authorized historical past, the Opinion suffers from different weaknesses. The AG is true that after Cofemel and Brompton works of utilized artwork are topic to the identical substantive necessities as different classes of works: originality and specificity. However guidelines of worldwide utility are of a totally totally different nature. To say, because the AG does, that harmonization of the idea of “work” essentially implies that each one works that meet these substantive necessities are, due to this fact, robotically protected underneath EU regulation, ignores the basic distinction between guidelines of substance and guidelines of utility.
The AG’s argument additionally has huge unintended penalties. The InfoSoc Directive is silent not solely on reciprocity, but additionally on nationwide therapy. If the AG’s argument have been to be adopted by the Court docket, all works of authors anyplace on the planet will probably be protected within the EU – no matter Berne, WCT or WTO membership. The EU will grow to be a haven of common copyright utility. That spells excellent news not just for designers from the US, but additionally for authors from Eritrea, Iraq, Iran, and different nations which have by no means adhered to the Berne Conference. And really unhealthy information for the EU Member States that will probably be held liable underneath Francovich for failure to guard US designers and non-Berne authors previously.
In any case, no matter would be the final result of the Kwantum reference, the AG’s Opinion makes clear that it’s excessive time for the EU legislature to take care of issues of worldwide utility of IP regulation, ideally by means of Regulation. Contemplating the EU’s worldwide commerce relationships, that is an pressing matter that ought to function excessive on the subsequent Fee’s agenda.
