‘Originality’ the only requirement for design copyright: CJEU

The Court of Justice of the European Union (CJEU) has ruled today, September 12 that originality is the only criterion required for a design to be protectable by copyright.

According to the court in Cofemel v G-Star Raw C-638/17, the law of individual member states cannot confer copyright protection to designs just because they generate “an aesthetic effect”, or have this as a requirement for copyright protection.

Rather, the law on copyright for designs must be in line with the “originality requirement” as outlined in EU Directive 2001/29 on copyright (also known as the information society or InfoSoc directive).

Under EU law, in order for a design to meet the originality requirement, all that is required is that it “reflect the personality”, as well as the “free and creative choices”, of the author, the CJEU said.

‘Work of art’ versus ‘originality’ 

The case arose after Dutch jeans brand G-Star Raw sued Portuguese clothing manufacturer Confemel for copyright infringement in 2013, claiming that Cofemel had infringed G-Star’s signature design.

The Portuguese Supreme Court referred the case to the CJEU in January 2018, seeking clarification on whether a design’s originality was the main requirement for copyright eligibility under EU law.

The Portuguese court had also asked whether, under EU law, a design must be a “work of art” or “artistic creation” to be eligible for copyright protection.

Today’s ruling is in line with an opinion issued by advocate general Maciej Szpunar in May this year, who advised the CJEU that EU law did not require a work to have artistic value in order to be eligible for copyright protection.

According to the judgment, under the InfoSoc directive, member states’ legislation cannot require designs to have artistic value in order to be eligible for copyright protection.

A design driven purely by technical considerations and has not left any room for “the exercise of creative freedom” is not eligible for copyright protection, the court ruled.

The CJEU said that in light of its ruling on the originality criterion, it was not necessary to address the Portuguese court’s remaining query on whether a design must be an “artistic creation” to be eligible for copyright protection.

Speaking to WIPR, Tom Oliver, senior associate at Powell Gilbert in London, said that “this judgment now makes unambiguously clear that the requirements for works of applied art to benefit from copyright protection is harmonised across Europe”.

Up until now, he said, there have been “differing national approaches to whether, for instance, mass produced designer clothing or furniture are protectable by copyright and, if so, what standard of artistic merit they must reflect”.

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