On October 14, 2024, in the case of Kwantum Nederland and Kwantum België (C-227/23), the Court of Justice of the European Union (CJEU) issued a judgment clarifying important aspects of the protection of foreign works of art within the Union.
The Case
A Swiss company producing design furniture, holder of intellectual property rights over certain chairs created by Mr. and Mrs. Charles and Ray Eames, deceased U.S. citizens, including the Dining Sidechair Wood, first presented in 1950 at a design competition at the Museum of Modern Art in New York, sued the Dutch company Kwantum for marketing a chair called the “Paris chair”, which allegedly infringed the copyright on the Dining Sidechair Wood.
The Supreme Court of the Netherlands, which had to decide the case, turned to the Court of Justice of the European Union to resolve some preliminary questions regarding the protection of works of applied art from third countries and authors who are not citizens of EU Member States.
The Legal Framework: Directive 2001/29/EC and the Berne Convention
The question raised by the Supreme Court of the Netherlands primarily concerns the scope of application of Directive 2001/29/EC, known as the “Copyright and Information Society Directive“, which harmonizes the protection of copyright within the European Union, with the aim of adapting the protection of works to new digital contexts.
The decision is particularly important considering that, in international law, the Berne Convention operates, which establishes that authors of the signatory countries enjoy, in the other signatory countries, the same rights as national authors, but there is an exception for works of applied art – objects created with a practical purpose but having artistic value – under which the contracting parties have agreed on a clause of “substantial reciprocity”, provided for in Article 2(7) of the Convention.
This rule reserves to the legislations of the signatory countries the determination of the conditions and scope of protection of works of applied art and industrial designs.
In particular, for works protected, in the country of origin, solely as designs and models, it provides that only the special protection granted therein to designs and models may be claimed in another country party to the Convention, thus establishing a criterion of substantial reciprocity.
The CJEU Judgment
The CJEU judgment has clarified that even works of applied art fall within the protection by copyright offered by Directive 2001/29/EC, provided that they can be qualified as “works”, i.e. if they are original, if they reflect the personality of their author and demonstrate creativity.
It has therefore been highlighted that the principle of substantial reciprocity cannot be invoked by Member States to limit the protection of works of applied art from third countries and whose author is a citizen of a third country, if these works are present and marketed in a Member State of the Union.
Only uniform European legislation could establish whether and how to introduce specific limitations for works from third countries, and Member States are required to protect works of art present in the territory of the Union, regardless of the country of origin of the works or the citizenship of the author.
The Role of the European Union Legislator
The Court has referred to Article 52(1) of the Charter of Fundamental Rights of the European Union (CFREU), specifying that any limitations on the grant of exclusive rights to authors (such as the right to authorize or prohibit the reproduction and distribution to the public of their works) must be established only by the Union legislator.
In particular, the Court refers to the rights enshrined in Article 2(a) and Article 4(1) of Directive 2001/29/EC. These rights confer on authors the power to decide whether or not to allow the reproduction and distribution of their works, rights that are at the heart of the protection offered by copyright.
Any limitation on these rights must be justified by public interest needs and can only be introduced through Union legislation, thus avoiding fragmentation that would undermine the single market.
Implications for the Protection of Works of Art by Non-EU Authors
The Kwantum Nederland and Kwantum België judgment clarifies, therefore, that all works of art present in the territory of the European Union must be protected without discrimination based on the nationality of the author or the country of origin of the work. This principle aligns with the Union’s objective of promoting a single market where works of art, including objects of applied art, are protected in a homogeneous manner, for the benefit of both authors and consumers.
The Court’s decision reinforces the idea of a “European copyright” that transcends national borders and guarantees uniform protection for all works of art. On the one hand, therefore, third-country authors who market their works in the territory of the Union will see their copyright recognized with the same guarantees as a European citizen; on the other hand, Member States will not be able to introduce national legislative barriers that limit such rights by virtue of reciprocity.
In this way, the protection of artistic and cultural heritage becomes a shared responsibility of the entire Union, in line with the principles of equality and non-discrimination that are at the heart of the European project.
Teresa Franza