Keywords
Summary

Keywords

1. Approximation of laws – Copyright and related rights – Term of protection – Directive 2006/116 – Scope

(European Parliament and Council Directive 2006/116, recital 3 and Art. 10(2))

2. Approximation of laws – Copyright and related rights – Term of protection – Directive 2006/116 – Scope

(European Parliament and Council Directive 2006/116, recitals 3 and 17 and Art. 10(2))

Summary

1. The term of protection laid down by Directive 2006/116 on the term of protection of copyright and certain related rights is also applicable, pursuant to Article 10(2) thereof, where the subject‑matter at issue has at no time been protected in the Member State in which the protection is sought.

According to the wording of that provision, the first alternative requirement provided concerns the prior existence of protection for the subject‑matter at issue in at least one Member State. That provision does not require that Member State to be the State in which the protection for which Directive 2006/116 provides is sought.

Moreover, recital 3 in the preamble to Directive 2006/116 states that, with a view to the smooth operation of the internal market, that directive is intended to harmonise the laws of the Member States so as to make terms of protection identical throughout the Community.

In those circumstances, to interpret Article 10(2) of Directive 2006/116 as meaning that application of the first alternative requirement of that provision is conditional on the prior existence of protection under the national legislation of the Member State in which the protection for which the directive provides is sought, even though such prior protection has been granted in another Member State, would comply neither with the terms of the provision at issue nor with the purpose of that directive.

(see paras 22-25, operative part 1)

2. Article 10(2) of Directive 2006/116 on the term of protection of copyright and certain related rights is to be interpreted as meaning that the terms of protection provided for by that directive apply in a situation where the work or subject‑matter at issue was, on 1 July 1995, protected as such in at least one Member State under that Member State’s national legislation on copyright and related rights and where the holder of such rights in respect of that work or subject‑matter, who is a national of a non‑Member State, benefited, at that date, from the protection provided for by those national provisions.

The question whether, in the context of the provision, a holder of copyright‑related rights in a work or subject‑matter who is a national of a non‑Member State was protected on 1 July 1995 in at least one Member State must be assessed in the light of the national provisions of that Member State and not in the light of the national provisions of the Member State in which the protection for which that directive provides is sought. Such a conclusion is, moreover, supported by recitals 3 and 17 in the preamble to the directive, which explain the objective of harmonisation pursued and, in particular, that of providing for the same starting point for the calculation of the term of protection for copyright‑related rights as well as the same term of protection for those rights throughout the Community with a view to ensuring the smooth operation of the internal market.

It follows that, in respect of a work or subject‑matter protected on 1 July 1995 in at least one Member State according to the national provisions of that Member State, the fact that the rightholder thus protected is a national of a non‑Member State and is not entitled, in the Member State in which the term of protection provided for by Directive 2006/116 is sought, to protection under the national law of that Member State, is not decisive for the application of Article 10(2) of the directive. What matters is whether the work or the subject‑matter at issue was covered by protection on 1 July 1995, under the national provisions of at least one Member State.

(see paras 34-35, 37, operative part 2)