CJEU rules: origin of applied art is no barrier to EU copyright

In a preliminary ruling referred by the Supreme Court of the Netherlands, the Court of Justice of the European Union (CJEU) has clarified that the material reciprocity exception to national treatment under Article 2(7) of the Berne Convention does not apply within the framework of EU law. EU member states are required to grant copyright protection to works of applied art that would have qualified for copyright protection if they had been created within the EU, irrespective of the works' country of origin or the author's nationality: Kwantum Nederland BV and Kwantum Belgie BV v Vitra Collections AG - Case C-227/23.

This decision has significant implications for creators and industries involved in industrial design where designs are in mass manufacture, as they will be more likely to receive copyright protection in the EU now even where they do not in their country of origin.

BACKGROUND

The case arose from a copyright dispute between Vitra, a furniture manufacturer holding intellectual property rights in a chair designed by two US nationals, and Kwantum, a furniture retailer operating in the Netherlands and Belgium. Vitra alleged that Kwantum was marketing a particular chair in breach of Vitra's copyright.

At the heart of the dispute was whether Vitra's chair was protected by copyright in the EU. Article 2(7) of the Berne Convention is a material reciprocity clause which provides an exception to the principle of national treatment in relation to works of applied art (objects or creations that integrate artistic design with practical functionality). Under Article 2(7), works that do not qualify for copyright protection in their country of origin and are protected solely as designs or models are not entitled to receive copyright protection in other signatory countries. On this basis, Kwantum argued that, because the United States excludes copyright protection for industrial designs, Vitra's chair was not entitled to protection in the Netherlands and Belgium.

INTERACTION BETWEEN THE BERNE CONVENTION AND EU COPYRIGHT LAW

The CJEU examined the interaction between the Berne Convention and EU Directive 2001/29, which defines a copyright holder’s exclusive rights within the EU of reproduction, communication and distribution. The CJEU viewed Directive 2001/29 as establishing a harmonised legal framework designed to ensure a high and even level of protection for such rights. Provided that the work of applied art meets the substantive conditions required to establish copyright – a work that is original and an expression of the author's own intellectual creation – the CJEU held that it will be classified as a 'work' and will qualify for copyright protection.

The CJEU ultimately ruled that Article 2(7) is incompatible with the harmonised objectives of Directive 2001/29 and thus EU member states are precluded from applying the material reciprocity clause to works of applied art. The CJEU emphasised that copyright protection in the EU extends to all qualifying works of applied art, irrespective of whether their origin or the nationality of the author is a third country. To do otherwise would undermine the EU legislature’s goal of harmonising copyright protection. And it is for the EU legislature alone, not the national legislatures, to determine limitations to copyright protection.

This ruling by the CJEU highlights the critical importance of harmonized copyright protections within the EU, particularly concerning works of applied art. Historically, inconsistencies in copyright laws across EU Member States created challenges for companies, creators and designers especially for designs that combine artistic expression and functional utility and that could be protected in EU jurisdictions under different regimes, such as registered designs or copyright. This ruling marks a significant step in starting to address these disparities, reinforcing the EU's commitment to a unified legal framework that supports creative industries and ensures consistent protection for intellectual property rights.