The European Court of Justice (CJEU) issued September 12 a landmark decision on copyright that will have an important impact on how every day mass-market products are protected in Europe (Cofemel, C-683/17). The decision clarifies that product design can be subject to copyright with the sole requirement of them being original. The novelty of the decision lies in the fact that it sets the same bar for works of "applied art", such as clothes or furniture, than it does to what we would consider the "core" copyright subject matter, such as works of visual art.
The decision is the result of a prejudicial question formulated by the Portuguese Supreme Court with the background of a conflict between a Portuguese textile company, Cofemel, and the Dutch jeans brand G-Star Raw. The latter sought copyright protection for their designs of jeans, t-shirts and sweatshirts, which were allegedly being copied by the Portuguese party. The question to clarify was whether clothing items were required to fulfill certain aesthetic values in order to be protected.
(Under EU law, national courts may send questions of law for clarification to the European Court of Justice. Their response affects not only the case at hand but also may result in reform in each member state’s national law.)
How are fashion designs protected?
While fashion designs may fall under the field of copyright, they often seek protection under a different instrument: industrial design rights. Design rights protect the appearance of a product for 25 years if registered or 3 years if unregistered – note that unregistered design rights are a EU peculiarity not found in other countries.
The intention behind the creation of this instrument was to protect industrial products with a practical function, such as clothing, furniture, or packaging (a famous example of design is the Coca-Cola bottle).
Design rights are nonetheless limited for a number of reasons, in particular in that they require registration. While some brands do register iconic designs they intend to use for . long period of time (for example, the Kelly bag by Hermes), brands with a higher product rotation may not think it worth the time and money. Enter copyright, in principle available for a much longer period of time, and with no formalities required.
It is worth nothing that cumulative or overlapping protection in the realm of intellectual property is almost always perfectly legal and very common.
What are the requirements for copyright protection?
In principle, any original “work” (ie the particular expression of an idea) may be the object of copyright. Originality exists when the work is an expression of the artist's personality and their free and creative choices, not dictated by technical considerations.
Up until now, many countries in Europea have set a higher bar for industrial or applied art products, requiring in addition to originality that there is a certain aesthetic or creative value to it. This is the case, under different formulations, in the UK (artistic value), Spain (altura creativa), or Germany (Stufentheorie).
Nonetheless, from Cofemel on, any original work, even if it’s a pair of jeans, may be protected by copyright, regardless of its aesthetic or creative value. This also means that closed lists of what type of works may be protected by copyright are no longer relevant.
This decision will certainly affect the way in which copyright is being understood in many European countries, and may even result in legal reform to their current regimes. It may also represent a surge and wider use of copyright for legal protection of mass market objects - be it sweatshirts, lamps, or toys.
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