Musik-Vertrieb membran GmbH and K-tel International v GEMA - Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte.
Date: 1981-01-20
8 IT SHOULD FIRST BE EMPHASIZED THAT SOUND RECORDINGS , EVEN IF INCORPORATING PROTECTED MUSICAL WORKS , ARE PRODUCTS TO WHICH THE SYSTEM OF FREE MOVEMENT OF GOODS PROVIDED FOR BY THE TREATY APPLIES . IT FOLLOWS THAT NATIONAL LEGISLATION WHOSE APPLICATION RESULTS IN OBSTRUCTING TRADE IN SOUND RECORDINGS BETWEEN MEMBER STATES MUST BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION WITHIN THE MEANING OF ARTICLE 30 OF THE TREATY . THAT IS THE CASE WHERE SUCH LEGISLATION PERMITS A COPYRIGHT MANAGEMENT SOCIETY TO OBJECT TO THE DISTRIBUTION OF SOUND RECORDINGS ORIGINATING IN ANOTHER MEMBER STATE ON THE BASIS OF THE EXCLUSIVE EXPLOITATION RIGHT WHICH IT EXERCISES IN THE NAME OF THE COPYRIGHT OWNER .
9 HOWEVER , ARTICLE 36 OF THE TREATY PROVIDES THAT THE PROVISIONS OF ARTICLE 30 TO 34 SHALL NOT PRECLUDE PROHIBITIONS OR RESTRICTIONS ON IMPORTS JUSTIFIED ON GROUNDS OF THE PROTECTION OF INDUSTRIAL AND COMMERCIAL PROPERTY . THE LATTER EXPRESSION INCLUDES THE PROTECTION CONFERRED BY COPYRIGHT , ESPECIALLY WHEN EXPLOITED COMMERCIALLY IN THE FORM OF LICENCES CAPABLE OF AFFECTING DISTRIBUTION IN THE VARIOUS MEMBER STATES OF GOODS INCORPORATING THE PROTECTED LITERARY OR ARTISTIC WORK .
10 IT IS APPARENT FROM THE WELL-ESTABLISHED CASE-LAW OF THE COURT AND MOST RECENTLY FROM THE JUDGMENT OF 22 JUNE 1976 IN CASE 119/75 TERRAPIN OVERSEAS LTD . ( 1976 ) ECR 1039 THAT THE PROPRIETOR OF AN INDUSTRIAL OR COMMERCIAL PROPERTY RIGHT PROTECTED BY THE LAW OF A MEMBER STATE CANNOT RELY ON THAT LAW TO PREVENT THE IMPORTATION OF A PRODUCT WHICH HAS BEEN LAWFULLY MARKETED IN ANOTHER MEMBER STATE BY THE PROPRIETOR HIMSELF OR WITH HIS CONSENT .
12 IT IS TRUE THAT COPYRIGHT COMPRISES MORAL RIGHTS OF THE KIND INDICATED BY THE FRENCH GOVERNMENT . HOWEVER , IT ALSO COMPRISES OTHER RIGHTS , NOTABLY THE RIGHT TO EXPLOIT COMMERCIALLY THE MARKETING OF THE PROTECTED WORK , PARTICULARLY IN THE FORM OF LICENCES GRANTED IN RETURN FOR PAYMENT OF ROYALTIES . IT IS THIS ECONOMIC ASPECT OF COPYRIGHT WHICH IS THE SUBJECT OF THE QUESTION SUBMITTED BY THE NATIONAL COURT AND , IN THIS REGARD , IN THE APPLICATION OF ARTICLE 36 OF THE TREATY THERE IS NO REASON TO MAKE A DISTINCTION BETWEEN COPYRIGHT AND OTHER INDUSTRIAL AND COMMERCIAL PROPERTY RIGHTS .
13 WHILE THE COMMERCIAL EXPLOITATION OF COPYRIGHT IS A SOURCE OF REMUNERATION FOR THE OWNER IT ALSO CONSTITUTES A FORM OF CONTROL ON MARKETING EXERCISABLE BY THE OWNER , THE COPYRIGHT MANAGEMENT SOCIETIES ACTING IN HIS NAME AND THE GRANTEES OF LICENCES . FROM THIS POINT OF VIEW COMMERCIAL EXPLOITATION OF COPYRIGHT RAISES THE SAME ISSUES AS THAT OF ANY OTHER INDUSTRIAL OR COMMERCIAL PROPERTY RIGHT .
14 THE ARGUMENT PUT TO THE COURT BY THE BELGIAN AND ITALIAN GOVERNMENTS THAT IN THE ABSENCE OF HARMONIZATION IN THIS SECTOR THE PRINCIPLE OF THE TERRITORIALITY OF COPYRIGHT LAWS ALWAYS PREVAILS OVER THE PRINCIPLE OF FREEDOM OF MOVEMENT OF GOODS WITHIN THE COMMON MARKET CANNOT BE ACCEPTED . INDEED , THE ESSENTIAL PURPOSE OF THE TREATY , WHICH IS TO UNITE NATIONAL MARKETS INTO A SINGLE MARKET , COULD NOT BE ATTAINED IF , UNDER THE VARIOUS LEGAL SYSTEMS OF THE MEMBER STATES , NATIONALS OF THOSE MEMBER STATES WERE ABLE TO PARTITION THE MARKET AND BRING ABOUT ARBITRARY DISCRIMINATION OR DISGUISED RESTRICTIONS ON TRADE BETWEEN MEMBER STATES .
15 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT NEITHER THE COPYRIGHT OWNER OR HIS LICENSEE , NOR A COPYRIGHT MANAGEMENT SOCIETY ACTING IN THE OWNER ' S OR LICENSEE ' S NAME , MAY RELY ON THE EXCLUSIVE EXPLOITATION RIGHT CONFERRED BY COPYRIGHT TO PREVENT OR RESTRICT THE IMPORTATION OF SOUND RECORDINGS WHICH HAVE BEEN LAWFULLY MARKETED IN ANOTHER MEMBER STATE BY THE OWNER HIMSELF OR WITH HIS CONSENT .
24 AS THE COURT HELD IN ANOTHER CONTEXT IN ITS JUDGMENT OF 31 OCTOBER 1974 IN CASE 15/74 CENTRAFARM BV AND ADRIAAN DE PEIJPER V STERLING DRUG INC . ( 1974 ) ECR 1147 , THE EXISTENCE OF A DISPARITY BETWEEN NATIONAL LAWS WHICH IS CAPABLE OF DISTORTING COMPETITION BETWEEN MEMBER STATES CANNOT JUSTIFY A MEMBER STATE ' S GIVING LEGAL PROTECTION TO PRACTICES OF A PRIVATE BODY WHICH ARE INCOMPATIBLE WITH THE RULES CONCERNING FREE MOVEMENT OF GOODS .