France jurisdiction report: Originality does not mean beauty

According to Regulation 6/2002 of December 2001 on Community designs or the Directive 98/71/EC of October 1998 on the legal protection of designs, applied arts can benefit from a plurality of protections originating from design right and copyright, with each protection subject to its own specific rules.

This plurality of protections is very dear to the French ideal of unity in art. However, European harmonisation remains quite limited, as the protection scope of copyright and its conditions depend on the national law of each member state.  

The Court of Justice of the European Union (CJEU) clarified the conditions for copyright protection in a decision (C-683-17) in September this year and ruled, on a preliminary question of Portugal’s Supreme Court (Supremo Tribunal de Justiça), on whether a design could benefit from copyright protection, and be qualified as work of art, on the sole condition that this design produces, beyond its utilitarian purpose, an aesthetic effect.

The notion of work of art was at the heart of the litigation between two fashion designers on the application of the Directive 2001/29/EC of May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, especially article 2(a) that ensures authors have the exclusive right to authorise or prohibit reproduction of their works.

The first designer complained about the copying of several of his clothes designs for which he was claiming copyright protection—they were original intellectual creations, since they were producing an aesthetic effect.

"The CJEU ruled that the aesthetic effect that might result from a design derives from the subjective sensation of beauty felt by any person who looks at it."

The first and second instance Portuguese courts had considered that “copyright benefits to applied work of art and industrial design as long as they present an original character, namely they result from an intellectual personal creation from their author, without requiring a certain aesthetic or artistic value”. They had thus decided that the relevant clothes designs could indeed benefit from such protection.

For the Portuguese Supreme Court, the question of the required degree of originality, so that a design can be protected through copyright, was discussed among the doctrine and the jurisprudence and required clarification.

The CJEU, to which the question was referred on preliminary ruling, was then asked to say whether a design could be qualified as a work of art under copyright regulation, on the sole condition that this design produces, beyond its utilitarian purpose, an aesthetic effect.

An autonomous concept

To answer this question, the CJEU first referred to several texts related to the protection of IP, particularly to the directive on copyright and the directive and regulation on design rights, to underline that this notion of “work of art” was an autonomous concept of the EU that must be given a uniform interpretation throughout the union.

To the court, this notion needed two cumulative elements to exist:

An original object: the object must reflect the author’s own personality, expressing his original and personal choices. An object realised only under technical considerations that doesn’t show any creative freedom cannot be qualified as original; and

The object can be identified objectively and precisely, so it may be clearly known. The object cannot be identified based on sensations, which are inherently subjective.

The remaining question was then to know under what conditions the protection might apply in this litigation.

The CJEU ruled that the aesthetic effect that might result from a design derives from the subjective sensation of beauty felt by any person who looks at it. Such sensation does not allow for the identification and objective and precise characterisation of an object, and thus a work protectable by copyright.

Even if these aesthetic considerations contribute to the creation, the fact that an aesthetic effect results from the design is not sufficient per se to determine whether this design is a work of art, namely an intellectual creation, expressing the personal choices of its author.

With this decision, the CJEU gave clear guidelines on the conditions to be respected for a creation to be protected by copyright, with the result being to harmonise the notion of work of art in the member states.

Aurélia Marie is a partner at Cabinet Beau de Loménie. She can be contacted at: amarie@bdl-ip.com