Copyright in applied art - are we any clearer?

The CJEU has today issued its judgment in two combined cases answering questions relating to the subsistence and infringement of copyright under EU law in works of applied art (both cases involved furniture designs – Mio and Konektra - Cases C‑580/23 and C‑795/23). As is often the case, on first reading there is not too much in it which will change how future cases are decided, given that design cases are always so fact specific. Much of the judgment repeats the same criteria established in earlier cases rather than telling us anything new.

I have therefore summarised below what I considered to be the main points of note:

Originality and copyright

1. Firstly, there is no stricter rule when considering the originality of a work of applied art when compared with any other type of copyright work. The fact that a design may also be protected by design rights does not justify such a stricter test.
    
2. Secondly, the same originality test applies for component parts as it does for the whole of a utilitarian design.
    
3. Thirdly, the creative choices of the author must be visible in the final design. However, the mere fact that a resulting design has aesthetic appeal does not automatically make it original if it does not reflect the author’s free and creative choices.
    
4. Fourthly, circumstances such as the author’s intentions during the creative process, their sources of inspiration and the use of shapes that are already available, the likelihood of a similar independent creation, or whether or not their design has been recognised in professional circles (for example, if it has been exhibited in a museum) may be taken into account where appropriate, but are not necessary or decisive for the purpose of establishing originality.

Infringement of copyright

Copyright in a work can be infringed even where only a relatively minor part of the work is reproduced.

The degree of creative freedom available to the designer does not have any bearing on the scope of protection.

Further, the fact that different shapes may achieve the same technical result, such that there was a choice available to the designer, is not decisive in deciding which factors influenced the actual choices made by the designer. On the other hand, where the original and alleged copy designs were both inspired by the same earlier design, it is only the “new” creative elements that are original, so that only reproduction of those elements can infringe copyright.