the Renckhoff case) but find their expression in the details. In Cofemel, the designs at issue were the result of the free choices of the designers of G-Star regarding details of the clothing. Also, no clear guidance results from the CJ’s contention that the assessment of whether a subject matter qualifies as “work” must be based on objective criteria rather than on a subjective appreciation of aesthetic quality. Aesthetics, in the sense of “beauty” or “eye-pleasing character” of an object, is a matter of personal taste, and is totally inappropriate and obsolete in the context of copyright. But the CJ does not address the subject matter in this sense. In the ruling, the sense of “aesthetic” seems to represent the opposite of “functional”. The term is very close in its meaning to what the CJ regards as the result of free creative choices made by the authors of the works.63 The CJ made it clear that the only valid concept of “originality” in EU copyright law is the subjective criterion, according to which originality is the author’s own intellectual creation that reflects their personality and is the result of free creative decisions in the sense that it is not affected by technical considerations. Therefore, the criterion of creative originality or creative degree applied by several national courts of the Member States was ruled out. Thus, the access of designs to the protection offered by copyright can no longer be justified by the appreciation of a greater creativity expressed in more recognizable aesthetic-artistic visual elements. At the same time, however, the CJ states that the cumulation of protections can only exist in certain situations. Not every design can be considered a work. But if all intellectual creations of the author that reflect their personality may qualify for copyright protection, including works of design and works of applied art, how can one differentiate those creations that only deserve protection as design from those that deserve cumulative protection under copyright? The CJ suggests that the differentiating element does not reside in the concept of “originality”, but in the previous concept of “work”. But, at the same time, the CJ states that the existence of a work cannot be characterized solely by the presence of a visual aesthetic effect in a creative object. How is it possible to know when a work is protected by copyright? There seems to be a subtext in the CJ ruling. A “plus” is required to distinguish between design and an artistic work. But is this not confirmation that the difference lies in the identification in the object of a “plus” of creativity? The CJ refuses to resort to the aesthetic element to identify the presence of an 63 See KUR, cit., pp.7-9. 243 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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