to exist. The CJ further determined that the concept of “work”, according to the InfoSoc Directive, implies “the existence of a subject matter that is identifiable with sufficient precision and objectivity” (paras. 32 and 33).52 The work is the expression of the author’s individual creation. Precision and objectivity do not exist when the identification of the subject matter is essentially based on the sensations of individuals that perceive it, which are necessarily subjective (para. 34).53 For the first time, the CJ stated unequivocally that the concept of “work” is harmonized in the EU (going further than C-310/17 Levola Hengelo, para. 33, which was not so assertive). Since C-5/08 Infopaq, the CJ has decided that if a work falls within the application of the InfoSoc Directive, the protection only exists when the work is “its author’s own intellectual creation”, the work is the result of “free and creative choices” (C-403/08 Football Association Premier League and C-429/08 Karen Murphy), and the subject matter displays the personal touch of the author (C-145/10 Painer).54 Though the CJ stressed that the conditions for granting copyright protection to works of applied art, works of design, and designs are a matter for uniform interpretation throughout the EU, the Court only stated general principles and did not give clear and sensible guidelines. It sent an ambiguous message, repeating standard formulae already known from previous case law, instead of clarifying the concepts of “work” and of “originality” in what concerns designs, works of applied art, and works of design. The approach that the CJ did not follow would have been especially important to elucidate those concepts, giving substantive notions that would replace the ones existing in national laws.55 Besides giving no guidelines, the CJ’s decision is confusing and somewhat contradictory. Indeed, it may be said that, rather than clarifying the issue, it complicates the solution to a problem that is becoming more and more acute in the market due to the tendency of design creators and industry to invoke copyright to protect designs for a longer period. The CJ does not provide an objective and coherent hermeneutical basis for delineating the scope of the protection that should be granted to hybrid intangible goods such as design creations. The Court does not solve the design/copyright interface and its application to designs, creating uncertainty in what regards competition in an increasingly important market 52 In this paragraph, the CJEU mentions C-310/17 Levola Hengelo, EU:C:2018:899, paras. 40 and 41. 53 In this paragraph, the CJEU mentions C-310/17 Levola Hengelo, EU:C:2018:899, para. 42. 54 See ROSATI, “CJEU Rules…”, cit., pp. 931–932. 55 In this sense, SILVA, P. SOUSA e, “Tutela Justautoral… ”, cit., pp.183-184. 240 MARIA VICTÓRIA ROCHA
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