Copyright protection in industrial design and fashion design was confirmed by today’s ruling of the ECJ. However, an additional copyright protection plus design protection is not justified by aesthetics and aesthetic effect, but only by intellectual creation with originality.
The Supreme Court in Portugal, the Supremo Tribunal de Justiça, requested in this case the European Court of Justice (ECJ) to interpret the conflict between copyright and design law, formally to interpret Article 2(a) of Directive 2001/29:
Can registered designs – formerly designs – be protected by copyright even if they do not have a particular artistic character?
And what is the discretion of the EU Member States to determine the conditions for granting copyright protection to designs?
A functional character of applied art objects often excludes a right to protection under design and copyright law, all the more if the production is industrial and in large quantities. Nevertheless, objects of applied art can also display a high degree of originality. Therefore, many national legal systems – especially for applied arts such as industrial design, design works and fashion – provide for possibilities to grant copyright protection only for designs of high artistic value. Advocate General Szpunar opened the door for copyright protection in industrial design and pleaded for no increased requirements for objects that are already protected as design patents – if the creative aspect is given.
Read more about this under Design protection and copyright protection – also for fashion?
The creative aspect was also dealt with in today’s ruling of the European Court of Justice.
The term “work” in the sense of Directive 2001/29
As a first step, it should be determined whether models can at all be classified as “works” within the meaning of Directive 2001/29. This is because the term “work” is not defined by a corresponding directive and is therefore an independent term of Union law. This makes today’s definition by the ECJ all the more important.
The term “work” is defined by two elements, the ECJ explained. On the one hand, the object in question must be an original in the sense that it constitutes the intellectual creation of its author. On the other hand, the classification as a “work” is reserved for elements which express such a creation.
But when is it originality? This, too, was specified by the court in its judgment.
An object could already be regarded as original if it reflected the personality of its author by expressing his free creative decisions, according to the ECJ. At the same time, however, the concept of a work also presupposes an object that can be identified with sufficient precision and objectivity, the ECJ clarified.
If it is a work, international agreements on copyright and design protection also apply. Article 2(7) of the Berne Convention allows the contracting parties to grant special protection to industrial designs which differs from, and where appropriate excludes, protection for literary and artistic works covered by this Convention and to lay down the conditions for such protection.
At the same time, this provision does not preclude the cumulative application of the two types of protection, the ECJ ruled today. Objects which are already protected as designs can therefore in principle also claim protection under copyright – if they are “works” with originality.
Does aesthetic originality justify copyright protection for a design?
The referring court wanted to know whether an aesthetic originality for a clothing model – over and above its intended use, a distinctive aesthetic visual effect – is the fundamental criterion for granting protection under Directive 2001/29. The ECJ denied this in its ruling today.
The protection of designs covers objects which, although new and individualised, are intended for use and mass production. Copyright also lasts much longer (the term of protection in copyright law is 70 years, but the term of protection for a registered design ends after 25 years at the latest) and protects an original work.
Although the protection of designs and models and the protection associated with copyright under Union law can be granted cumulatively for one and the same object, this cumulation is only possible in certain cases, the court has specified today.
Aesthetics is subjective – no criterion for copyright protection
Aesthetically, a subjective sense of beauty was perceived, so that such an effect could not be inferred from the object of protection with sufficient accuracy and objectivity. Therefore, the fact that a model has an aesthetic effect does not in itself make it possible to determine whether that model is an intellectual creation with originality, the Court stated.
Therefore, the ECJ answered in the negative the question of whether aesthetic originality is the fundamental criterion for a right to protection under copyright law. Nor does an aesthetically striking visual effect of its own justify classifying such models as “works” within the meaning of Directive 2001/29.
No special national rules allowed
In addition, the ECJ also ruled out deviating national regulations, as various EU member states have established in their case law. Article 2(a) of Directive 2001/29/EC must be interpreted as precluding a national provision under which models such as those at issue in the main proceedings are protected by copyright because, beyond their intended use, they produce their own aesthetically striking visual effect, the ECJ ruled.
Article 22(2)(a) of Directive 2001/29/EC must be interpreted as precluding a national provision under which models such as those at issue in the main proceedings are protected by copyright on the ground that, in addition to their intended use, they produce their own aesthetically striking visual effect.
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