industrial designs and design work that constitute and artistic creation”.43/44 Due to the lack of clarity in Article 2, nº1, (i) CDADC and the lack of consensus among Portuguese scholarship, together with the lack of a general definition of the concept of “work” and of “originality” regarding works of applied art on the part of the EU legislator, it was impossible to predict how Portuguese courts would decide the issue of cumulation between design protection and copyright protection.45 43 Regarding the relation between article 194 of CPI 2018 (before, article 200 CPI 2003) and article (2) (1)(i) CDADC, though scholars considered that Portugal had a partial cumulative protection, many of them demanded a higher degree of artistic value for cumulation of protections to be possible. Bárbara Ribeiro Quintela considered that the artistic creation “was an extra obligation imposing an assessment of the merits of the subject matter in question” (QUINTELA, Bárbara RIBEIRO “A tutela jurídica da moda pelos regimes dos desenhos ou modelos”, Direito Industrial, Vol. V, 2008, p. 477 ff., p. 501 ff, p.506 ff.). This approach is still shared by Menezes Leitão, who considers that cumulation of protections shall only be possible if there is a qualified artistic creation, in the sense that the protected design raises, in addition to its functional application, an assessment of merit in aesthetic terms, which is the subject of external recognition (LEITÃO, Luís Manuel TELES de MENEZES, Direito de Autor, 5ª ed., Almedina, Coimbra, 2023, p.93.) Oliveira Ascensão considered that works of applied art could only be protected by copyright when their artistic character clearly prevailed over the industrial destination of the object (ASCENSÃO, José de OLIVEIRA, Direito de Autor e Direitos Conexos, Reimpressão, Coimbra Editora, Coimbra, 2012, p. 92 ff., p. 94). 44 Most Portuguese scholars have always been against the idea of entering into the artistic value because copyright protection is independent of the merits of the creation (as stated in the general clause of Article 2 CDADC). Designs, works of applied art, and works of design ought to be protected by copyright if, as happens with any type of work, the requirements of copyright protection meet. In the opinion of many Portuguese scholars, if we are considering an artistic work, recognized as such by the work’s specialized circles, the subject matter at issue ought to be protected by copyright as work. Not all designs should be protected by copyright, but only those that constitute an “artistic work”, which has nothing to do with merits but has to do with the recognition as such by specialized circles. If deemed necessary, there should be expert evidence. See ROCHA, Maria Victória, “Proteção autoral para modelos de vestuário? [Ac. do Tribunal de Justiça da União Europeia no caso Cofemel/G-Star (C-683/17) de 12.09.2019]”, Revista de Direito Intelectual, 1, 2021, p.221, pp.228231; SILVA, P. Sousa e, “Desenhos ou modelos no novo CPI. O que muda e o que não muda com o Ac. Cofemel”, Revista de Direito Intelectual, 2, 2019, p.189, pp.196-197. Scholars like José Alberto Vieira, criticizing the way design, works of applied art, and works of design appear in the CDADC, consider that the reason why subparagraph (i) uses the expression “artistic creation” instead of the usual expression “intellectual creation”, which appears in the body of Article 2, nº2, and in Article 1 CDADC, is only because creativity in this type of works has to do with its aesthetical aspect. The expression does not mean that an extra requirement is needed. Subparagraph (i) is just a different way of saying that the general requirement of “intellectual creation” must exist for the subject matter to be protected by copyright. 45 The following are the most important examples of Portuguese case law before the CJEU Cofemel preliminary ruling: (1) Court of Appeal of Porto, in 2006, granted copyrights to a furniture designer of a model of armchair and ordered the defendant to pay the author compensation for the infringement of those rights [Decision of 23 November 2006 (Proc 0633334, dgsi.pt)]; (2) Court of Appeal of Guimarães, in 2012, refused copyright protection to a range of designer taps for the kitchen and bathroom, conceived by architect Carvalho de Araújo, because they were not considered an artistic creation [Decision of 27 February 2012 (Proc 1607/103TBBRG, dgsi.pt)]; (3) Court of Appeal of Lisbon, in 2017, considered that design of jeans, sweatshirts, and t-shirts should be protected by copyright [Decision of 21 February 2017 (Proc 268/13.2YHLSB, dgsi.pt)]. This decision was appealed to the Portuguese Supreme Court (STJ) which decided to stay the proceedings and requested a preliminary ruling from the CJEU, which was the basis of the STJ decision of 15 January 2020, Cofemel v G-Star (Proc 268/13.2YHLSB.L1. S1, Rel Maria do Rosário 236 MARIA VICTÓRIA ROCHA
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