Copyright and design rights in Belgium

On 31 May 2016 the Advocate General of the CJEU gave an Opinion on the ongoing case of Montis Design BV v Goossens Meublen BV. If the CJEU follows this Opinion, it will provide a boost to the protection of authors’ and designers’ rights.

What does Benelux law say?

Until 2002, Benelux copyright law required that if a work had been protected as a registered design, but the copyright owner wished to continue to assert copyright over it when the design registration expired, the copyright owner had to make a formal Declaration of Maintained Rights.

This law was changed in 2002 in the light of the Berne Convention, which does not permit the imposition of formalities in order for copyright to subsist.

What was the issue in this case?

This case related to the copyright in a chair and a sofa designed by Gerard van den Berg between 1983-87 (known as the Charly and Chaplin designs). Copyright had already been extinguished before the change in Beblux law in 2002, since they had been registered as designs in 1988 and the design registrations lapsed in 1993. Montis, which had acquired the rights from Mr van den Berg, did not make the necessary Declaration of Maintained rights.

Nevertheless, in 2008 when Goossens began selling similar products, Montis sued for copyright infringement. Goossens did not challenge the designs’ eligibility for copyright and, interestingly, both parties agreed that no copyright had subsisted in the chairs on 1 July 1995 when the Copyright Term Directive 93/98/EC came into effect. This was important since, under the Term Directive, a harmonised duration of copyright applies for all EU Member States, namely the life of the author plus 70 years.

Consequently, where copyright had expired under national law, but was still in effect in another Member State (with a longer term of protection), it was resurrected as at that date.

Montis conceded that copyright had not subsisted elsewhere, since it seems the subsistence of copyright in the designs had been challenged, successfully, in Germany. This provision of the Term Directive therefore could not resurrect the Charly and Chaplin copyrights.

What did the AG decide?

Despite this, AG Sanchez-Bordona took the view that the Charly and Chaplin copyrights were resurrected on 1 July 1995 by virtue of the Term Directive following the reasoning as to the purpose of that Directive previously applied by the CJEU in its Flos decision.

In his Opinion, the extinguishing of the Dutch copyright under Benelux law for failure to submit the Declaration of Maintained Rights was invalid from the outset – but the CJEU cannot rule on that since it has no authority as regards either national law or the Berne Convention. But Benelux copyright law ought have been brought into compatibility with the Term Directive with effect from 1 July 1995; and to be compatible, Benelux (here, Dutch) copyright had to subsist.

What does this mean for businesses?

If the CJEU follows the AG’s Opinion, it will further illustrate the elasticity of European intellectual property law, underlining the high level of protection which authors and designers are to be given even in the face of the most hostile of national laws.