Abstract
In 2019, in the Cofemel case, the CJEU ruled that the originality requirement of the author’s own intellectual creation was the same for all copyright works including works of applied art, also called three-dimensional (3D) functional works. This originality requirement had been stated in a general way in the Infopaq case but it was never completely clear it applied to all authorial works so that many countries which had a higher originality requirement (such as artistic or aesthetic value, merit or character) carried on applying it. With the ruling in Cofemel, which was subsequently restated and further substantiated by the CJEU in Brompton, requiring aesthetic character for 3D functional works is now against EU law. This chapter examines whether national courts are respecting the CJEU case law in relation to the originality requirement for these 3D functional works in most of the Member States which had a requirement of artistic merit, namely Portugal, Germany, Italy, Denmark, Finland and Spain. The conclusion is that, over two years on, many courts in those Member States are still not complying with Cofemel, therefore not only breaching EU law but contributing to the state on disharmony across the EU.
© E. Derclaye, Professor of Intellectual Property Law, School of Law, University of Nottingham. This project is supported by a grant from the University of Nottingham’s ESRC Impact Acceleration Account ES/T501992/1, a British Academy Small Research Grant SRG21\210361, and Google funding awarded to E. Derclaye and G. Stupfler, Professor of Statistics, University of Angers. I am grateful to a team of research assistants who helped collecting, reading and coding the decisions and provided answers to queries. Some wish to remain anonymous, the others are: Marie-Sofie Thiriaux, Razvan Popa, Dominika Galajdová, Ann-Sophie Blaser, Daniel Plon, Mariana Gomezgil Gabriel, Thomas Nair, Philomène Boccanfuso, Paulien Wymeersch, Mikko Antikainen, Ioanna Lapatoura, Dorottya Paku, Daniele Fabris, Olena Roguska, Ricardo Campanelle Pletsch and Sona Surmová. Our apologies if we missed someone in this long list. All websites were last accessed on March 7, 2023. All court decisions are on file with the author. All photographs originate from the judgments unless otherwise stated.
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Notes
- 1.
- 2.
ECJ of July 16, 2009, C-5/08.
- 3.
- 4.
Derclaye (2021a).
- 5.
This chapter is based on a large empirical project surveying of EU copyright law comprising the 27 Member States and the UK to discover whether harmonisation is effectuated in the Member States’ national courts. In this project, there will be a much more comprehensive review of 3D functional works case law of the Member States.
- 6.
Derclaye (2023). The translations were made by DeepL or Google Translate.
- 7.
Decision of 15 February 2020. All decisions are on file with the author except when specifically referenced as published in a journal.
- 8.
Landgericht Düsseldorf of September 17, 2019, 14c O 225/17.
- 9.
Federal Supreme Court (BGH) of November 13, 2013, I ZR 143/12 (2014) International Review of Intellectual Property and Competition Law 45: 831–834.
- 10.
Decision of 17 October 2019.
- 11.
Kammergericht Berlin of December 16, 2019, 24 U 173/15.
- 12.
BGH of December 15, 2022, I ZR 173/21 – Vitrinenleuchte.
- 13.
Decision of May 29, 2020, N. R.G. 2020/6085 – Molo Design Ltd. v. Exhibo S.p.a (Judge Dr Carmelo Barbieri). The claimant’s furniture can be seen at https://molodesign.com/collections/furniture/.
- 14.
Article 2(10) Italian copyright act.
- 15.
Decision of January 7, 2021, N.R.G. 9746/2020 – Pink Pampas v. Artefashion Mexico (Dr Anna Bellesi).
- 16.
Decision of February 15, 2021, N.R.G. 1320/2021 – Giorgia Castiglioni v. Piero Castiglioni and Barrisol Normalu SAS (Dr Claudio Marangoni, Dr Pierluigi Perrotti, Dr Elisa Fuzzini).
- 17.
Decision of June 10, 2020, BS-7741/2019-HJR – ILH v Morsø Sko Import (Marianne H. Pedersen, Poul Dahl Jensen, Hanne Schmidt, Lars Hjortnæs, Lars Apostoli,), see also Woolgar (2020).
- 18.
Decision of June 11, 2020, BS-48928/2019 – Salling Group and Ronald v. Anne Black (Katja Høegh, Anne Thalbitzer and Tine Egelund Thomsen, Regional Judges, and Karin Schou Andersen and Thomas Hagerup).
- 19.
Decision of October 26, 2020, BS-50242/2018-SHR – Ferm Living v. Coop Danmark and others (Ina Darby Iwersen, Annette Krath Poulsen, Karin Schou Andersen).
- 20.
Decision of January 28, 2020, MAO:25/20 – Aarnio Design Oy v Lähdesmäki Oy Ilmajoki.
- 21.
Barcelona Court of Appeal (s.15) of March 6, 2020, No.512/2020, commented on by Cuerva de Cañas (2020).
- 22.
Cuerva de Cañas (2020).
- 23.
Ibid., 366. Presumably this is a translation from the judgment though it is not clear from the author’s comment on the case.
- 24.
Ibid., 364.
- 25.
Namely one Italian, two Danish and the Spanish.
- 26.
8 out of 10 decisions. In the Danish case concerning pots, there were three works, two of which were found not protected (a vase and a lidded pot) because they did not meet the AOIC. However, the Danish court considered them protected by the Marketing Act. If we count works protected by copyright instead of the decisions, then the percentage is 61.5%.
- 27.
Namely 4 out of 8. If we include the two additional works in the Danish Anne Black case, they were also infringed but on the basis of the Marketing Act only. In the other two cases (the Spanish case and the German minigolf case), only the moral rights were at stake and considered infringed.
- 28.
Perhaps the fact that the court held the books protected under the Marketing Act, made the court reject copyright despite the experts’ view that there were free and creative choices. For an interesting comment, see Schovsbo (2020).
- 29.
Derclaye (2021b), 75–79.
- 30.
We could not find any case law in Cyprus, the Czech Republic, Greece, Hungary, Ireland, Romania and Slovakia, the other countries so far covered by this research project (all Member States will eventually be covered).
- 31.
ECJ of December 1, 2011, C-145/10, paras. 96–98. See also above the postscript in Sect. 3.
- 32.
References
Cuerva de Cañas J (2020) Cumulation of protection by means of industrial designs and copyright: thanks to the winds of change from Strasbourg in the Cofemel case, Spain begins to “catch the breeze”. Eur Intellect Prop Rev:359–367
Derclaye E (2021a) AbraCoDoBro Cofemel, Doceram and Brompton: How does the current and future CJEU case law affect digital designs? In: Pasa B (ed) Design, technological and digital innovation. Interdisciplinary proposals for reshaping legal protections, ESI Press, Naples, pp 261–292
Derclaye E (2021b) Case note under Trib. Ent. Liège, 16 March 2021, Brompton v Chedech/Get2Get. Auteurs Média 1:75–79
Derclaye E (2023) To what extent is the parody exception truly harmonised? An empirical analysis of the Member States’ case law post-Deckmyn. Intellect Prop Quart: forthcoming
European Copyright Society (2018) Opinion in the Cofemel Case (C-683/17). Available at https://europeancopyrightsociety.org/portfolio/opinion-on-reference-to-cjeu-in-case-c-683-17-cofemel-v-g-star. Accessed 7 Mar 2023
European Copyright Society (2020) Opinion in Relation to the Pending Reference before the CJEU in Brompton Bicycle v. Chedech/Get2Get, C-833/18. Eur Intellect Prop Rev 205
Fhima I (2020) The CJEU decision in Brompton Bicycle (Case C-833/18): an original take on technical functionality? Eur Intellect Prop Rev:761–767
Inguanez D (2020) A refined approach to originality in EU copyright law in light of the ECJ’s recent copyright/design cumulation case law. Int Rev Intellect Prop Comp Law:797–822
Kur A (2020) Unité de l‘art is here to stay: Cofemel and its consequences. J Intellect Prop Law Pract:290–300
Rosati E (2019) CJEU rules that copyright protection for designs only requires sufficient originality. J Intellect Prop Law Pract 931
Schovsbo J (2020) Danish Supreme Court denies copyright in rubber boots. J Intellect Prop Law Pract:629–681
Woolgar A (2020) These boots are made for walking...and not for copyright protection. Available at https://ipkitten.blogspot.com/2020/06/guest-post-these-boots-are-made-for.html. Accessed 7 Mar 2023
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Derclaye, E. (2024). The Status of Three-Dimensional Functional Works Post-Cofemel: An Empirical Analysis of the Member States’ Case Law. In: Thouvenin, F., Peukert, A., Jaeger, T., Geiger, C. (eds) Kreation Innovation Märkte - Creation Innovation Markets. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-68599-0_9
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