The matter at hand

Under the former Uniform Benelux Law on designs and models, rightholders owning both design rights and copyrights with respect to a product had to file a ‘maintenance declaration’ for that product in order the maintain the copyright after the expiry or cancellation of the design right. This provision was repealed after the Dutch Supreme Court had held that the provision was not compatible with Article 5(2) of the Berne Convention, which provides that the enjoyment and the exercise of copyright may not be subject to any formality.

According to the Copyright Term DirectiveDirective 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related – implemented in the Dutch Copyright Act - the protection term of 70 years after the author’s death applies to works which are at 1 July 1995 protected by the national legislation relating to copyright in at least one Member State.

While the Uniform Benelux Law on designs and models was still in force, and before 1 July 1995, furniture designer Montis had neglected to file the required maintenance declaration for one of its products when the term of the design rights with respect thereto had expired, with the result that the copyright had lapsed in 1993. In copyright infringement proceedings against Goossens, Montis however claimed that its copyright should be held to have been restored by virtue of the repeal of the required maintenance declaration and/or following the adoption of the Copyright Term DirectiveDirective 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related.

The Dutch Supreme Court had doubts as to the effects of the repeal of the requirement of a maintenance declaration and referred questions to the Benelux Court of Justice, which in turn referred questions to the ECJ. First of all, whether the terms of protection laid down by the Copyright Term DirectiveDirective 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related are applicable to copyright which was initially protected by the national legislation but which was extinguished prior to 1 July 1995. And secondly, whether the Directive precludes national legislation which initially granted copyright protection to a work, as in the main proceedings, but which, thereafter, caused that copyright to be definitively extinguished because of non-compliance with a formal requirement.

The judgment of the ECJ

The ECJ rules that the terms of protection laid down by the Copyright Term DirectiveDirective 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related do not apply to copyright which was initially protected by national legislation, but which was extinguished prior to 1 July 1995 and which is not protected in the territory of any other Member State (paragraph 37).

Furthermore, the Directive does not preclude repeal provisions in national legislation that do not effect any restoration of rights and therefore leave some rights definitively extinguished, even though the repealed provision leading to the extinction of those rights is not compatible with the Berne Convention (paragraph 44).