BREAKING: CJEU rules that only requirement for copyright protection of designs is their originality

Copyright in designs: what are the relevant requirements for protection? Is it compatible with EU law that a certain national law requires a design to be a 'work of art', an 'artistic creation' for copyright to vest in it?

This, in a nutshell, was the twofold issue at the heart of the referral from the Portuguese Supreme Court to the Court of Justice of the European Union (CJEU) in Cofemel, C-683/17.

As readers will remember, this referral originated in the uncertainties arisen in the aftermath of earlier CJEU case law, most notably the Flos ruling, which suggests that - in fact - Member States (contrary to what appears from the wording of Article 17 of the Design Directive) would have no freedom whatsoever in determining the conditions at which designs are eligible for copyright protection. 

A few months ago, Advocate General (AG) Szpunar advised [Katpost here; the Opinion is still unavailable in English] the Court to rule that copyright protection in designs should arise when the sole originality requirement is fulfilled, without taking into account any additional criteria. This means that - if the Court were to endorse the AG Opinion - national theories, like Italian scindibilità or German Stufentheorie, would no longer be acceptable under EU law. 

As I wrote in my earlier post, the approach indicated by the AG is *correct* from the point of view of how EU copyright has developed in CJEU case law, irrespective of how desirable an outcome of this kind could be. I also ventured to say that it would be likely that the CJEU followed it.

The Court has just issued its judgment [currently only available in French and Portuguese] and ruled - indeed - that the only requirement for copyright protection to arise in designs is their originality.

The CJEU held that, in light of 'settled case law', in order for an 'object' to be regarded as original, it is

both necessary and sufficient for it to reflect the personality of its author, as resulting from their free and creative choices [para 30; my own translation from French]

However, the Court also noted that:

where the making of an object has been determined by technical considerations, by rules or by other constraints, which have not left room for the exercising of any creative freedom, then that object cannot be regarded as possessing the originality required to constitute a work [para 31; again my own translation]

Hence, Article 2 (a) of the InfoSoc Directive  must be interpreted as precluding a national law from conferring copyright protection designs on the ground that, beyond their utilitarian purpose, they create a distinct and noticeable visual effect from the aesthetic point of view [para 56]. 

A more detailed analysis of this key judgment and its implications will be provided soon.