Warner Brothers Inc. and Metronome Video ApS v Erik Viuff Christiansen.
Date: 1988-05-17
10 None the less, it must be observed that the commercial distribution of video-cassettes takes the form not only of sales but also, and increasingly, that of hiring-out to individuals who possess video-tape recorders . The right to prohibit such hiring-out in a Member State is therefore liable to influence trade in video-cassettes in that State and hence, indirectly, to affect intra-Community trade in those products . Legislation of the kind which gave rise to the main proceedings must therefore, in the light of established case-law, be regarded as a measure having an effect equivalent to a quantitative restriction on imports, which is prohibited by Article 30 of the Treaty .
11 Consideration should therefore be given to whether such legislation may be considered justified on grounds of the protection of industrial and commercial property within the meaning of Article 36 - a term which was held by the Court, in its judgment of 6 October 1982 in Case 262/81 Coditel v Ciné-Vog (( 1982 )) ECR 3381, to include literary and artistic property .
13 It should further be pointed out that literary and artistic works may be the subject of commercial exploitation, whether by way of public performance or of the reproduction and marketing of the recordings made of them, and this is true in particular of cinematographic works . The two essential rights of the author, namely the exclusive right of performance and the exclusive right of reproduction, are not called in question by the rules of the Treaty .
15 However, it is apparent that, by authorizing the collection of royalties only on sales to private individuals and to persons hiring out video-cassettes, it is impossible to guarantee to makers of films a remuneration which reflects the number of occasions on which the video-cassettes are actually hired out and which secures for them a satisfactory share of the rental market . That explains why, as the Commission points out in its observations, certain national laws have recently provided specific protection of the right to hire out video-cassettes .
16 Laws of that kind are therefore clearly justified on grounds of the protection of industrial and commercial property pursuant to Article 36 of the Treaty .
17 However, the defendant in the main proceedings, relying on the judgments of 22 January 1981 in Case 58/80 Dansk Supermarked v Imerco (( 1981 )) ECR 181 and of 20 January 1981 Musik Vertrieb Membran v GEMA, cited above, contends that the author is at liberty to choose the Member State in which he will market his work . The defendant in the main proceedings emphasizes that the author makes his choice according to his own interests and must, in particular, take into consideration the fact that the legislation of certain Member States, unlike that of certain others, confers on him an exclusive right enabling him to restrain the hiring-out of the recording of the work even when that work has been offered for sale with his consent . That being so, a maker of a film who has offered the video-cassette of that film for sale in a Member State whose legislation confers on him no exclusive right of hiring it out ( as in the main proceedings ) must accept the consequences of his choice and the exhaustion of his right to restrain the hiring-out of that video-cassette in any other Member State .
18 That objection cannot be upheld . It follows from the foregoing considerations that, where national legislation confers on authors a specific right to hire out video-cassettes, that right would be rendered worthless if its owner were not in a position to authorize the operations for doing so . It cannot therefore be accepted that the marketing by a film-maker of a video-cassette containing one of his works, in a Member State which does not provide specific protection for the right to hire it out, should have repercussions on the right conferred on that same film-maker by the legislation of another Member State to restrain, in that State, the hiring-out of that video-cassette .