AG Szpunar extends a generous hand to foreign authors

In her IPKat article of yesterday, Prof. Eleanor Rosati explains the Opinion of AG Szpunar, published on 5 September 2024, in the pending CJEU case Kwantum Nederland BV, Kwantum België BV v Vitra Collections AG (Case C‑227/23).  As she says, it is an important opinion on the extent of national treatment of foreign authors. I imagine the Court will follow the AG's opinion, but I - respectfully - have my doubts.

EU copyright takes it all … including Article 2(7) of the Berne Convention: AG Szpunar advises CJEU to rule that EU Member States can no longer rely on reciprocity clause for works of applied art - The IPKat (ipkitten.blogspot.com)

Essentially, the case concerned the alleged infringement of the Dutch (and Belgian) copyright of Vitra, a Swiss company, in an Eames chair.  The defendant sought to argue that Article 2(7) of the Berne Convention (directly applicable in the monist Netherlands) allows countries to limit the national treatment of works of applied art in relation to copyright protection to works which are protected by copyright in their countries of origin. The defendants argued that the Eames chair was not protected by copyright in the US, its country of origin, so was not so protected in the Netherlands.  On 31 March 2023, the Dutch Supreme Court referred certain questions to the CJEU.  

The question of infringement at issue between the parties is a narrow one and not of the greatest interest. The Court of Appeal, in a remarkably learned judgment of 14 July 2020, had held that even if the Berne limitation applied, the Eames chair was in principle protected by copyright in the US, and so was not excluded from protection in the Netherlands.  The reasoning of AG Szpunar, however, if adopted by the CJEU, would have striking consequences, effectively extending copyright protection in the EU to all countries of the world, irrespective of their treaty commitments to EU countries.

According to AG Szpunar, the full array of EU-harmonised rights must be available to all non-EU authors, whether or not the national treatment commitments of their countries of nationality extend those rights to EU authors: "First, the European Union’s international obligations do not allow authors who are nationals of third countries to be left outside the harmonised copyright framework, irrespective of the country of origin of their works... Second, since the EU legislature has used the term ‘authors’ without specifying their nationality or place of residence, that term must be interpreted as referring to any author seeking to protect his or her rights within the internal market" (para. 33).  

It will be noted that this argument rests on an interpretation of the word "author".  AG Szpunar says that if the word is not qualified, it must mean all authors. The problem with this is that there is no language confining that class of global authors to nationals of states which have entered into national treatment obligations with the EU country in question.  

A further complication, given that the question is ex hypothesi a matter of EU law, is that the EU is not a party to the Berne Convention, so it is hard to see how the definition of "authors" could be limited to the beneficiaries of national treatment under that treaty.  And while it may be pointed out that the EU is a party to the TRIPS Agreement, which incorporates the substantive provisions of the Berne Convention (other than Article 6bis), the membership of TRIPS is not as extensive as that of Berne (and, incidentally, the substantive provisions do not bind the 37 least developed countries party to TRIPS (Article 66(1)). IIt was the application of the Berne Convention, not the TRIPS Agreement, which was in issue in the national litigation. And in any case, it is difficult to see how the EU could be in breach of its TRIPS obligations in this connection, since copyright is a national right - there is no "EU copyright" to confer or withhold.

It seems that when the EU adopted the 2001 Directive it was regulating the external market as well as the internal market, notwithstanding the limitations on its competence.

It will be a happy discovery for third states negotiating FTAs with DG Trade to know that they need no longer offer anything in return for copyright protection - EU Member States must protect every author in the world, including those from Iran, Iraq and other non-Berne countries, and even beyond the international obligations of Member States - Iraqi authors, look forward to collecting your public lending right royalties!

It seems to me that the simple point is this. The Berne Convention says nothing about the copyright protection of domestic right holders. It is about protecting foreign authors. The 2001 Directive says nothing about the treatment of non-domestic right holders. Member States are entitled to determine how they are to comply with their international obligations, including the definition of the word "author" in that context, unless and until the EU legislator rules otherwise.  But for the CJEU the extension of EU law to the exclusion of Member State discretion is a guiding light...

When copyright protects more than economic interests

Yesterday the Rights Alliance, Denmark’s very effective anti-piracy organization, published a news item about an unusual piracy case implicating the moral rights of performers under the copyright law.

In May 2023, the Rights Alliance became aware of the appearance on Reddit of compilations of scenes from films featuring Danish actresses, showing the performers naked or in scenes of a sexual nature. When it attracted public attention, the Reddit site was made private, but the Rights Alliance was able to investigate and reported the matter to the National Special Crime Unit (the NSK).  Yesterday, the NSK arrested a 39-year old man and charged him with infringing copyright by sharing clips from Danish films and television series in a private group on Reddit and on pornographic websites.  Many of the actors concerned have expressed their hurt and anger at the distortion of their performances.

Normally copyright and related rights infringement concerns the economic rights of the artists and producers involved.  However, related rights law also protects the performer against, in the words of the 1996 WIPO Performances and Phonograms Treaty (WPPT), “any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation”.  The WPPT addresses aural (typically musical) performers.  The 2012 Beijing Treaty on Audiovisual Performances covers performers in audiovisual productions. 

Not all countries have signed up to these treaties, and in fact Denmark has not ratified the Beijing Treaty.  However, Article 3(2) of the Danish Copyright Act (Ophavsretten) provides that the work “must not be altered or made available to the public in a manner or in a context which is prejudicial to the author's literary or artistic reputation or individuality.”  Article 65(6) of the Act provides that Article 3 shall apply correspondingly to performers’ live and recorded performances.

Article 76 provides that it is an offence punishable by fine to infringe Article 65 intentionally or with gross negligence.  If the offence is committed intentionally and in aggravating circumstances, the maximum sentence is a year and a half.  If the offence is committed for unlawful gain or otherwise under particularly aggravating circumstances, the maximum sentence is 6 years’ imprisonment (Article 299b, Danish Criminal Code).

The Rights Alliance made the complaint on behalf of the national broadcaster DR, the Danish Actors’ Association, the Danish Film Directors’ Association and the producers whose films had been pillaged.  However, it was clearly the actors who were the principal victims of the alleged offence (it is necessary to recall that there has yet to be a trial) and their interest was essentially personal, not economic.  This seems to be a rare example where a criminal remedy for moral rights infringement is unquestionably proper.

Not all countries have criminal remedies for moral rights infringement – the UK, for example. Perhaps they should?