Unité De L’Art Is Here to Stay - Cofemel and Its Consequences

Abstract

In Cofemel the CJEU declared that the criteria for assessing whether subject matter is protected as a work under copyright law are the same for design objects (“works of applied art”) as for other work categories. While the CJEU tries to indicate that the “unité de l’art”-approach thus adopted does not result in a near-complete cumulation of protection under copyright and design law, it is difficult to see how that could work in practice. Rather than relying on non-transparent and inconsistent differentiation schemes the recommendable strategy in response to the situation is to align the two fields as much as possible, in particular with regard to the respective catalogues of limitations.

Keywords: applied art, industrial design, cumulation, repairs clause, referential use of designs