account [of] the dominant views in cultural and institutional circles, they qualify as an “artistic creation” or “work of art”.48 6.1. Cofemel Preliminary Ruling In the Cofemel Preliminary Ruling (Case C-683/17) the CJ made the following key decisions: (i)Designs (such as clothing, furniture, or industrial products) can be protected by copyright law under EU law, but only if they meet the standard requirement of “originality”. This means the design must be the author’s own intellectual creation, without any additional requirement of artistic or aesthetic merit. Thus, national laws cannot impose stricter requirements.The CJ confirmed that a uniform standard of “originality” applies across the EU, including all types of works. Copyright and design rights are separate. The ruling clarified that copyright and design rights are independent legal regimes. While design rights protect the appearance of a product for a limited period, copyright provides longer protection but only for works that meet the “originality” threshold. The Cofemel harmonized the concept of “work” under EU copyright law, reinforcing that a design can qualify as copyright-protected work if it meets two key conditions. The first is the “originality” requirement. The work must be the author’s own intellectual creation, meaning it reflects the author’s free and creative choices and is not dictated by technical, functional, purely utilitarian considerations or by orders of a third party (namely in the case of works made for hire or under an employment contract). The second is the identifiable 48 What the STJ wanted to know, given the divergent positions in Portuguese scholarship and in Portuguese case law, was whether the reference to “artistic creation” in Article 2(1)(i) CDADC, means that the works of applied art, designs, and works of design listed in this subparagraph must satisfy a different, higher threshold to achieve copyright protection, or whether all categories of works are subject to the common standard of “originality”. But instead of asking whether the standards for protection of works of applied art are the same as for other categories of works, the STJ referred two questions with two different types of qualifiers: one requiring an aesthetically significant visual effect, going beyond the subject matter’s utilitarian function; the other referring to a markedly strict assessment of artistic character according to the opinion prevailing in cultural and institutional circles. The way the STJ put the first question created a dilemma for the CJ. The Court wanted to use the criteria enunciated in Infopaq and subsequent case law, but the CJEU and especially the Advocate General (AG), did not want to grant protection to the subject matter at issue. Therefore, both declared that while cumulation of design and copyright cannot be excluded, this is not the general rule, but rather an exception in certain cases, with a clear subtext meaning, excluding cases like this (see C-683/17 Cofemel, para 52; see also the reasoning of AG Spuznar, regarding the harmful consequences of overprotection of works of applied art or designs by copyright (C-683/17 Cofemel, EU:C:2019:363, Opinion of AG Spuznar, paras 50–66). Criticizing the way the STJ questioned the CJEU, see KUR, cit., pp. 5-6; ROCHA, “Proteção autoral…”, Revista de Direito Intelectual, cit., p.234; ROCHA, “Proteção Autoral…”, RRDDIS, cit., p.91. 238 MARIA VICTÓRIA ROCHA
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