The unavoidable CJEU <i>Kwantum</i> judgment

Abstract In autumn 2024, the Court of Justice of the European Union (CJEU) issued its judgment in Kwantum, C-227/23. Endorsing the Opinion of Advocate General (AG) Szpunar in the same case, the Court held that EU Member States do not enjoy any freedom to set their own reciprocity clauses under Article 2(7) of the Berne Convention: in this field, the competence vests with the EU and not (or rather: no longer) individual Member States. Like the AG, the decision further confirms that any work protected by copyright—including works of applied art—must only satisfy a requirement of originality, this also being a harmonized notion under EU law. The outcome of the referral from the Dutch Supreme Court was both unavoidable and unsurprising having regard to settled CJEU case law in the field of copyright, well beyond the immediate ‘precedent’ set by RAAP, C-265/19. On a broader level, it shows how a ‘Union copyright’ does not only exist but also extends well beyond the formal legislative framework.