Case C‑169/15

Montis Design BV

v

Goossens Meubelen BV

(Request for a preliminary ruling from the Benelux Gerechtshof)

‛Reference for a preliminary ruling — Industrial and commercial property — Copyright and related rights — Directive 93/98/EEC — Article 10(2) — Term of protection — No revival of protection due to Berne Convention’

Summary — Judgment of the Court (Third Chamber), 20 October 2016

Approximation of laws — Copyright and related rights — Directive 93/98 — Terms of protection — Application to rights before 1 July 1995 — Not permissible — Protection of those rights not revived by the effects of the Berne Convention

(Council Directive 93/98, Arts 10(2) and 13(1))

Article 10(2) of Council Directive 93/98 harmonising the term of protection of copyright and certain related rights, read together with Article 13(1) of that directive, must be interpreted as meaning that the terms of protection laid down by that directive do not apply to copyright in a work of applied art which was initially protected by national legislation but which was extinguished prior to 1 July 1995.

Consequently, Directive 93/98 must be interpreted as not precluding national legislation which, initially, had granted copyright protection to such a work, but which, subsequently, caused that copyright to be definitively extinguished, before 1 July 1995, by reason of non-compliance with a formal requirement.

The fact that, apparently, the extinction of that copyright, prior to 1 July 1995, may not have been compatible with Article 5(2) of the Berne Convention, under which the enjoyment and exercise of copyright is not to be subject to any formality, is not such as to call into question that interpretation of Directive 93/98.

The EU legislature chose to refer, by means of the first condition laid down in Article 10(2) of Directive 93/98, to all works and subject matter which, on 1 July 1995, are protected ‘pursuant to national provisions on copyright or related rights’. It follows that it is neither the object nor the effect of that provision to determine the conditions under which that protection could be extinguished before 1 July 1995, that question continuing to be governed by the applicable national legislation.

As regards the second condition laid down in Article 10(2) of Directive 93/98, according to which the terms of protection laid down by that directive apply to all works and subject matter which on 1 July 1995 meet the criteria for protection under Directive 92/100, that does not apply to works of applied art, such as those at issue, which are not covered by Directive 92/100, which, in accordance with Article 2(3) thereof, does not cover rental and lending rights in relation to such works.

It is therefore apparent that neither of the two alternative conditions laid down in Article 10(2) of Directive 93/98 is satisfied.

It follows that Directive 93/98 must be held not to preclude repeal provisions in national legislation that do not effect any restitution and therefore leave rights in works of applied art definitively extinguished, notwithstanding the fact that the extinction of those rights, prior to 1 July 1995, is not compatible with Article 5(2) of the Berne Convention.

(see paras 38, 39, 42-44, 46, operative part)