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2019/10 > Originality does not mean beauty

According to Regulation (EC) N°6/2002 of 12 December 2001 on Community designs (art.96.2) or Directive 98/71/EC of 13 October 1998 on the legal protection of designs (art.17), works of applied arts can benefit from cumulative protection under both design right and copyright, each protection subject to its own specific rules. This plurality of protection is very dear to the French ideal of unity in art. However European harmonization remains quite limited, since the scope of protection by copyright and its conditions depend on the national law of each Member State.

The Court of Justice of the European Union has clarified the conditions for protection by copyright in a decision of September 12th 2019 (C-683-17) and ruled, on a preliminary question of the Supremo Tribunal de Justiça (Portugal Supreme Court), on whether a design could benefit from copyright protection, and be qualified as a 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 indeed the issue of the litigation opposing two fashion designers regarding the application of Directive 2001/29/EC of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society, especially its article 2.a) that confers on authors the exclusive right to authorize or prohibit reproduction of their works.

The first designer was complaining about the copying of several of his clothes designs for which he was claiming copyright protection on the basis that theywere original intellectual creations, since they were producing an aesthetic effect. The first and second instance Portuguese jurisdictions had considered that “copyright benefits to applied works of art and industrial design as long as they present an original character, namely they result from an intellectual personal creation from their author, without requiring a certain aesthetic or artistic value”. They had thus decided that the relevant clothes designs could indeed benefit from such protection.

For the Portuguese Supreme Court, the question of the required degree of originality, so a design can be protected through copyright, had yet to be discussed among the doctrine and the jurisprudence and required clarification.

The European Union Court of Justice, to which the question was referred for preliminary ruling, was then asked to say whether a design could qualify as a work of art under copyright regulations, on the sole condition that this design produces, beyond its utilitarian purpose, an aesthetic effect.

To answer this question, the European Union Court of Justice referred first to several texts related to the protection of Intellectual and Industrial Property, particularly to the Directive on copyright and the Directive and Regulation on design rights, to underline that this notion of “work of art” was an autonomous concept of the European Union that must be given a uniform interpretation throughout the Union. To the Court, for this notion to exist two cumulative elements are required:

  • An original object: this object must reflect the author’s own personality, expressing his original and personal choices. An object realized solely in view of technical considerations that do not allow any creative freedom cannot be qualified as original (Points 30 and 31).
  • An object that can be identified objectively and precisely enough, so that it may be clearly known. This object cannot be identified based on sensations, which are inherently subjective (Point 34 and 35).

The remaining question was then to know under what conditions the protection might apply in this litigation.

The Court then ruled that the aesthetic effect that might result from a design derives from the subjective sensation of beauty felt by any person who looks at it. Such a sensation does not allow an object to be identified and characterized objectively and precisely, and thus to qualify as a work protectable by copyright. Hence, even if these aesthetic considerations contribute to the creative activity, the fact that an aesthetic effect results from the design is not sufficient per se to determine whether this design is a work of art, namely an intellectual creation, expressing the personal choices of its author.

With this decision, the European Court of Justice gave us clear guidelines on the conditions that need to be respected in order for a creation to be protected by copyright, with for result the harmonization of the notion of “work of art” in the Member States.

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