Copyright Protection for Non-EU Works: CJEU Advocate General Rejects Reciprocity Principle

The Advocate General of the European Court of Justice (CJEU) just published his opinion in the “Vitra/Kwantum” referral proceedings:

In short, he is of the opinion that the member states may not apply Article 2(7) of the Berne Convention. This provision, which was introduced almost 100 years ago due to the major international differences at the time, provides for an exception for designs to the principle according to which foreign authors are to be treated in the same way as nationals, i.e. the so-called reciprocity principle, which allows discrimination against foreigners. In this specific case, the copyright protection of the “DSW” chair created by the Americans Charles and Ray Eames in 1950 is at issue. According to the Advocate General, the EU Copyright Directive does not provide for exceptions for works by non-EU nationals, neither with regard to the protected “works” nor with regard to the protected “authors”. Accordingly, contrary to the questions of the referring Dutch Supreme Court, there is no need to invoke the EU Charter. Should the CJEU follow the Advocate General, this confirmation of the so-called universality principle would be a further step towards a fully harmonized copyright law.

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