EMI Electrola GmbH v. Patricia Im-und Export Verwaltungsgesellschaft mbH and others (case 341/87)

Date

24 January 1989

Legislation

EC Treaty, arts. 30, 36
Trade Marks Act 1938 s61b

Keywords

Copyright; EC Treaty

Counsel

see report

Solicitors

see report

Judge

Presiding, Koopmans P.C.; O'Higgins, Mancini, Schockweiler and Diez de Velasco JJ

Court

European Court of Justice

Reported

[1989] 1 FSR 544

Summary

  • Article 36 EEC protects literary and artistic property including copyright if it is exploited commercially
  • Articles 30 and 36 EEC: protection must be refused to any improper exercise of rights which would be likely to maintain or create artificial partitioning of the Common Market.
  • A copyright owner cannot prevent or restrict importation of recordings which have been lawfully marketed in another Member State by himself or with his consent.
  • In the absence of harmonisation of national laws it was for the national legislature to determine the conditions of such protection, including its duration.

Decision:

  • In so far as disparities between national laws might lead to restriction on intra-Community trade, those restrictions were justified under Article 36 EEC as long as they were due to the disparity in duration and the protection period was inseparably linked to the existence of the exclusive right.

NB: This case was dealing with the state of affairs in Europe before the copyright term was harmonised – see Directive harmonising the term of protection of copyright and related rights, October 29, 1993.


Reviewed 30 November 2008