The Protection of Works of Applied Art under EU Copyright Law

Abstract

In Cofemel, the Court of Justice of the European Union held that works of applied art are subject to the same originality requirement as other works (namely that the work be an expression of the author’s own intellectual creation). At the same time, the CJEU recognized the potential dangers of a generous approach when a work is recognized as an original work of applied art, in particular, the potential to undermine the specific legislative regime protecting designs. The Court indicated that copyright law should only exceptionally offer protection to designs. Two cases pending before the CJEU – Mio and konektra – both relating to claims to copyright in modernist furniture, highlight two consequences of this earlier case-law: firstly, how to apply the test in practice to ensure that copyright law is not granted too readily to designs; and, secondly, how far the test of infringement, initially elaborated in Infopaq, can also be made compatible with that goal. This Opinion of the European Copyright Society seeks to help the Court clarify when works of applied art should benefit from copyright protection and makes proposals relating to the scope of protection.