EMI Electrola v Patricia Im- und Export and others, Case 341/87, 24 January 1989

Facts: The copyright of sound recordings had expired in Germany but not in Denmark in consequence of different rules about the duration of copyright in such material. 

Holding: The ECJ held that the Danish copyright could be used to block the import of records manufactured in Germany.  As a result records lawfully made without copyright permission in Germany could not be lawfully sold in Denmark 

Reasoning: The protection of industrial and commercial property within the meaning of Article 36 of the Treaty covers literary and artistic property including copyright, to the extent in particular that it is commercially exploited. It includes the protection of exclusive reproduction and distribution rights in sound recordings to the extent to which that protection is assimilated under the applicable national legislation to copyright protection. Articles 28 and 30 TEC do not preclude the application of a Member State’s legislation which allows a producer of sound recordings in that Member State to rely on the exclusive rights to reproduce and distribute certain musical works. In so far as the disparity between national laws relating to the protection of literary and artistic property may give rise to restrictions on intra-Community trade in sound recordings, such restrictions are justified under Article 30 TEC.

Human and Constitutional Rights Resource Page