France jurisdiction report: Originality does not mean beauty

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.