Thursday, 19 September 2019

Originality requirement is the same for all works – including applied art


In a case involving the design of jeans and tee shirts, referred by the Portuguese Supreme Court, the Court of Justice has extended the scope of its Infopaq decision and held that the Euro-originality test, that a copyright work be its author’s own intellectual creation, applies to all types of copyright work including works of applied art. It is not open to Member States to protect works of applied art on the basis that they have some aesthetic appeal in addition to their utilitarian appeal.

Clothing designs will perhaps rarely pass the higher originality test. In the UK this would not be a problem, as copyright is not the most apt way to protect them: they are more properly protected by design right, and in any case s.51 should exclude the use of copyright to protect the designs except where the item of clothing is itself an artistic work – which means it only works if the garment is a work of artistic craftsmanship, which it often will be but not if it is a tee shirt, or probably a pair of jeans. But the case raises the interesting question for the UK, does the Euro-originality test apply now to design right? The courts were always clear that they were not going to invent a new originality test for design right when they could just adopt the well-established copyright one, but that was before the Court of Justice drive a coach and horses through that test in Infopaq.

The judgment, which is not yet in English, raises other important questions about EU copyright law – which almost with each passing day seems to be the way we now have to regard copyright, as based on EU directives. How the activist Court of Justice brought us to this position, developing the Information Society directive into a comprehensive harmonisation of copyright law, is another story on which a lot has already been said and much remains to say.

Case C-683/17, Cofemel – Sociedade de Vestuário SA v G Star Raw CV EU:C:2019:721 (12 September) (in French – other language versions are available)

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