"Revived" copyright - Sony v Falcon Neue clarifies Term Directive

In C-240/07 Sony Music Entertainment v Falcon Neue Medien Vertrieb, handed down on 20th January 2009, the ECJ held that copyright could "revive" where such was protected in at least one Member State regardless whether the Member State in which it was protected was not the one in which protection was sought. Thus, in a case referred from the Bundesgerichtshof concerning proceedings brought in Germany for infringement of sound recording rights in various Bob Dylan recordings, although recordings of Bob Dylan had not been protected as of 1st July 1995 in Germany, such were protected in the United Kingdom. The ECJ held that such was sufficient for copyright to "revive".

However, there was a further complication. Under Art.7(2) Directive 2006/116, if the right holder of a sound recording right was not a Community national, then without prejudice to international obligations, the term of the right could be no longer than that which was applicable in the country of which the rightholder was a national. Thus, if the right holder was a national of country X and under the laws of country X, such granted protection which was 30 years from fixation/publication, the protection granted in the Community could not extend beyond 30 years absent international obligations being inconsistent with that. The ECJ effectively said that Art.10(2) and Art.7(2) were dealing with different situations. Thus, the ECJ ruled that provided that as of 1st July 1995, a right holder who was a national of a non-Member State was protected in at least one Member State, then the copyright was "revived" under Art.10(2). It is important to point out that the ECJ was not ruling on the inapplicability of Art.7(2) but merely stating that it was irrelevant to the interpretation of Art.10(2). Thus, it may be the case that copyright is revived under Art.10(2) but disapplied under Art.7(2) if the right holder who is a national of a non-Member State cannot demonstrate that he has commensurate equivalent protection in the country of which he is a national.