Source: EURLEX
Language: en
Format: md

[**Avis juridique important**](../../../editorial/legal_notice.htm)

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# 61987J0341

**Judgment of the Court (Sixth Chamber) of 24 January 1989. - EMI Electrola GmbH v Patricia Im- und Export and others. - Reference for a preliminary ruling: Landgericht Hamburg - Germany. - Copyright - Different protection periods. - Case 341/87.** 
  
*European Court reports 1989 Page 00079  
 Swedish special edition Page 00001  
 Finnish special edition Page 00001*

  

[Summary](#SM)  
[Parties](#I1)  
[Grounds](#MO)  
[Decision on costs](#CO)  
[Operative part](#DI)

## Keywords

  
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1 . Free movement of goods - Industrial and commercial property - Copyright - Related rights to reproduce and distribute sound recordings - Application of Article 36 of the Treaty

( EEC Treaty, Art . 36 )

2 . Free movement of goods - Industrial and commercial property - Copyright - Musical works protected in more than one Member State - Expiry of the protection period in one Member State - Marketing in that State, without the consent of the copyright owner, of sound recordings incorporating those works - Importation into and marketing in a Member State in which protection still exists - Opposed by the copyright owner - Restrictions on trade resulting from the disparity between national laws - When acceptable - Conditions

( EEC Treaty, Arts 30 and 36 )*

## Summary

  
*1 . The protection of industrial and commercial property within the meaning of Article 36 of the Treaty covers literary and artistic property including copyright, to the extent in particular that it is commercially exploited . Consequently, it includes the protection of exclusive reproduction and distribution rights in sound recordings to the extent to which that protection is assimilated under the applicable national legislation to copyright protection .

2 . Articles 30 and 36 of the EEC Treaty do not preclude the application of a Member State' s legislation which allows a producer of sound recordings in that Member State to rely on the exclusive rights to reproduce and distribute certain musical works of which he is the owner in order to prohibit the sale, in the territory of that Member State, of sound recordings of the same musical works when those recordings are imported from another Member State in which they were lawfully marketed without the consent of the aforesaid owner or his licensee and in which the producer of those recordings had enjoyed protection which has in the mean time expired .

In so far as the disparity between national laws relating to the protection of literary and artistic property may give rise to restrictions on intra-Community trade in sound recordings, such restrictions are justified under Article 36 of the Treaty if they are the result of differences between the rules governing the period of protection and this is inseparably linked to the very existence of the exclusive rights . No such justification would exist if the restrictions on trade imposed or accepted by the national legislation were of such a nature as to constitute a means of arbitrary discrimination or a disguised measure to restrict trade .*

## Parties

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