Ruling of 6 June 2002 of the Court the Fifth Chamber in Case [C-360/00], Land Hessen v G. Ricordi & Co. Bühnen- und Musikverlag GmbH  ECR I-05089
Referred by [Bundesgerichtshof – Germany]
The question referred was raised in proceedings between the Land Hessen and G. Ricordi & Co. Bühnen- und Musikverlag GmbH (hereinafter Ricordi), a firm publishing musical and dramatic works, concerning the right to have the opera La Bohème by the Italian composer Giacomo Puccini performed in the 1993/1994 and 1994/1995 seasons.
At the material time, artistic and intellectual works were protected in Germany under the 1965 version of the Gezetz über Urheberrecht und verwandte Schutzrechte (German rules). That legislation distinguished between the protection of the works of German nationals and that of the works of foreign authors. Whilst the former enjoyed protection for all their works, whether published or not and regardless of where they were first published, the latter were entitled to protection only for works published in Germany for the first time or within 30 days of their being first published.In other cases, foreign authors enjoyed the protection afforded to their rights by international treaties. The copyright protection granted by German legislation expires 70 years after the 1 January following the author’s death.
Under Italian law the term of copyright protection is 56 years from the time of the author’s death.
The main international agreement governing copyright protection is the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971) which applies to the main proceedings in the version as amended on 28 September 1979 (the Berne Convention). Provisions related to copyright stipulate that the term of protection granted thereby is to be the life of the author and 50 years after his death. Article 7(5) provides that the 50-year term is to be deemed to begin on 1 January of the year following the death. Under Article 7(6), the contracting parties may, however, grant a longer term of protection. This Convention institutes a scheme known as comparison of the terms of protection. Under that provision, the term of protection is, in any case, to be governed by the legislation of the country where protection is claimed. However, unless the legislation of that country otherwise provides, which German legislation has not, the term is not to exceed the term fixed in the country of origin of the work.
Ricordi holds the rights of performance in the opera La Bohème by Puccini, who died on 29 November 1924. The Land Hessen operates the Staatstheater (State theatre) in Wiesbaden (Germany). During the 1993/1994 and 1994/1995 seasons, the Staatstheater in Wiesbaden staged a number of performances of that opera without Ricordi’s consent. Ricordi argued before a Landgericht (Regional Court, Germany) that, in the light of the prohibition of discrimination on grounds of nationality in the EC Treaty, Puccini’s works were necessarily protected in Germany until the expiry of the 70-year term prescribed by German law, that is, until 31 December 1994. The Land Hessen contended that the opera La Bohème was covered by the term of protection of 56 years prescribed by Italian law, so that the copyright in that work had expired on 31 December 1980.
The Landgericht seised allowed Ricordi’s application. The appeal brought by the Land Hessen was unsuccessful. The Land thus brought an appeal on points of law (Revision).
In the order for reference, the Bundesgerichtshof points out that since, according to the findings made, the opera La Bohème was first published in Italy and not in Germany, it was, at the material time, protected in Germany solely to the extent provided by international treaties. Accordingly, in the light of Article 7(8) of the Berne Convention and the fact that German law does not contain any provision derogating from the principle according to which the term of protection must not exceed the term fixed in the country of origin of the work, the term of protection in Germany for the opera La Bohème was restricted by the term of protection prescribed by Italian law and thus expired in 1980.
According to the referring court, the outcome of the main proceedings depends on the applicability to the facts of the case of the prohibition of discrimination on grounds of nationality in the first paragraph of Article 6 of the EC Treaty.
Term of copyright protection – Principle of non-discrimination on grounds of nationality – Applicability to copyright which arose prior to the entry into force of the EEC Treaty/ Whether the prohibition of discrimination in the first paragraph of Article 6 of the EC Treaty is also applicable to the protection of copyright in cases where the author had died when the EEC Treaty entered into force in the Member State of which he was a national and, if so, whether it precludes the term of protection gran