In essence, both courts requested clarity on the criteria for determining originality following the 2019 Cofemel decision to decide whether the utilitarian objects in question may be protected by Copyright. This is important as objects which are protected by design (either registered or unregistered) enjoy a much shorter term of protection than copyright protected works.

The CJEU clarified that the originality requirements for works of applied art are the same as for all other types of copyright works and so the same object can attract copyright and design protection, i.e. there is “no relationship of rule and exception”. When determining whether the author’s personality through free and creative choices in the sense of Cofemel is reflected in the subject matter, technical or other constraints which do not allow the author to make those free and creative choices or choices that cannot be regarded as reflecting the author’s personality are to be disregarded. The author’s intentions, sources of inspiration, use of existing material, the likelihood of a similar independent creation or professional recognition may be taken into account but are neither required nor decisive in establishing originality. Infringement is to be determined by whether creative elements have been reproduced in a recognisable manner as opposed to mere identical overall impression.

The interplay between design and copyright protection has been extensively discussed in a number of cases, such as in the recent WaterRower (no copyright protection in the UK), Birkenstock (no copyright protection in Germany- the same court as the referring court in the present matter did not await the outcome of this request but copyright protection was affirmed in the Netherlands) and Birkin Bag (copyright protection affirmed in France). Today’s decision provides a little more clarity on the originality requirements and it will be interesting to see if functional objects will be more widely regarded as copyright protected. However, in the UK, the bar is currently higher following the WaterRower decision, as works of applied art must, in addition to being original, also fall within the closed list of types of work as set out in the Copyright, Designs and Patents Act 1988.

You can read the CJEU decision here.