Opinion AG CJEU: the copyright protection of a work of applied art does not require a stronger artistic character

Case C-683/17: Cofemel v G-Star. Opinion A-G Szpunar van 2 mei 2019. Preliminary questions Supremo Tribunal de Justiça, Portugal.

Copyright - G-Star has marketed jeans of the Arc model under one of its brands and sweaters and T-shirts of the Rowdy model. G-Star submitted to a Portuguese court at first instance that certain designs of jeans, sweaters and T-shirts put on the market by Cofemel had a design identical to that of its models Arc and Rowdy. The main purpose of G-star's action is to order Cofemel to put an end to all infringements of its copyright.

The referring court observes that, although the national provision clearly includes works of applied art, industrial drawings and designs and design works constituting artistic creations in the list of copyright-protected works, the provision does not specify the level of originality required for those works to benefit from such protection.

A-G Szpunar argues that Article 2(a) of the Copyright Directive precludes industrial designs from being protected by copyright only if they have a more artistic character than is normally required of other categories of works. There is no legal basis in Union copyright law for such restrictions, since applied art works are protected as the creator's own intellectual creations, as well as other categories of works. It is also considered that the specific criteria for design protection should not be applied to copyright protection.

The A-G suggests that the Court should answer the preliminary questions as follows (this is a translation of the Dutch version: there is no English version available):

"1) Article 2(a) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and neighbouring rights in the information society, as interpreted by the Court, precludes industrial drawings and desings from being protected by copyright only if they have a more artistic character than is normally required of other categories of works.

2) When applying for copyright protection for an industrial drawing or an industrial model, the national court must take account of the specific objectives and mechanisms of copyright, such as the protection, not of ideas, but of their expressions, and the criteria for finding that exclusive rights have been infringed. The national court may not apply the specific criteria applicable to design protection to copyright protection."