The six European countries of Belgium, Denmark, Finland, France, the Netherlands and Sweden released a joint letter (PDF 68KB) to the European Commission (the “Commission”). The joint letter calls on the Commission to introduce a legislative proposal on the rules and boundaries for the international application of EU law on copyright and neighbouring rights.[1]
This recommendation follows two high-profile decisions from the European Court of Justice. The letter refers to these two decisions as illustrations of the lack of reciprocity between the protection of rights holders in the EU and countries outside of the EU. For example, EU member states must provide protection to rights holders from outside the EU, even if those countries do not provide EU rights holders with equivalent protection. The six European countries writing to the Commission underline this imbalance in rights protections as leading to an economic imbalance.
The Decision in RAAP
In 2020, the decision in Recorded Artists Actors Performers Ltd v Phonographic Performance (Ireland) Ltd, Minister for Jobs, Enterprise and Innovation, Ireland, Attorney General [RAAP] highlighted that while European producers and performers may not receive remuneration from the use of their music in non-EU countries, music producers and performers from non-EU countries may still receive remuneration from EU member states. Here, the Court found the rights of a national of a non-EU state who was seeking single equitable remuneration for their contribution to a phonogram used in Ireland, were protected under EU law. The Court noted that any limitation to these rights would need to come from the EU legislature to make the necessary modifications.
This decision represented a major win on the right to equitable remuneration for producers and performers from non-EU countries, which could mean millions of euros that record companies and labels may be required to distribute.
The Decision in Kwantum
Most recently, in 2023, Kwantum Nederland BV, Kwantum België BV v Vitra Collections AG [Kwantum] re-emphasized the disconcertment regarding the copyright and neighbouring rights protection in relation to non-EU countries that undercuts the bargaining power and international trade policies of the EU. This decision established that EU member states, regardless of the country of origin of the works or nationality of the author, must afford copyright protection to designs or “works of applied art,” like home appliances and furniture, if the harmonized conditions are met. Ultimately, this means that non-EU designs and designs originating in the EU are equally copyright-protected in the EU member states.
The Recommendation for Ensuring Conditions of Fair Competition Between Rights Holders
The joint letter acknowledges the importance of the decisions in RAAP and Kwantum in recommending that the Commission ensure fair competition between right holders while still encouraging non-EU countries to develop similar rights, which would comprehensively reinforce the competitiveness of the EU and its member states. For example, in RAAP, the Court reflects on legislation that would balance remuneration by limiting the rights of nationals of non-EU countries that do not grant a remuneration right or only partially grant a right. The joint letter argues that it is in the public interest and within the Commission’s power to ensure conditions of fair competition between rights holders.
The joint letter emphasizes the need for an economic foreign policy that recognizes current realities to ensure reciprocity in the area of copyright and neighbouring rights not only now but in the future. If the Commission does not solve this issue soon, the joint letter warns the ramifications on EU right holders, users of content, and related businesses and industries may be extensive.
While it remains to be seen how the Commission will respond to the calls put forward in the joint letter, the flag has been raised by the six European countries about the present and future implications of prioritizing legislation on the rules and boundaries of international application of EU law on copyright and neighbouring rights. The countries of the joint letter all pledge their services and constructive support towards this end.
