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: the only criterion is originality.

To be protected by copyright, a work must be the author’s own intellectual creation, reflecting the author's freedom of choice and personality. If the subject matter was dictated by technical considerations, rules or other constraints, which left no room for creative freedom, it would not be original. Only the elements that were the expression of creation in this sense would be regarded as a work - which sounds very much like the Court applying the "abstraction-filtration-comparison" test propounded by the Second Circuit in Computer Associates v Altai to determine what is protected rather than the English courts' approach of looking at the copyright work as a whole and filtering out unprotected subject-matter when applying the "substantial part" criterion for infringement.

Looking for an aesthetic effect to decide whether copyright applied was, the Court observed, subjective, and did not mean that the subject-matter of protection existed and could be identified with sufficient precision and objectivity. Aesthetic considerations were important in creative activities, of course, but a design's aesthetic effect did not in itself make it possible to decide whether the design was the author's own intellectual creation.

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 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 (which it seems always to refer to simply as "the Copyright 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)