Copyright and Design Law: What Is Left after All and Cofemel? – Or: Design Law in a ‘Double Whammy’

16 Pages Posted: 6 Feb 2020

See all articles by Jens Schovsbo

Jens Schovsbo

Centre for Information and Innovation Law (CIIR)

Date Written: January 14, 2020

Abstract

Following the CJEU’s decisions in Cofemel a general, autonomous and unified concept of a ‘work’ applies to all areas of copyright including works of applied art (‘designs’). The Court emphasized the dual track system for the protection of product design in the EU via both copyright and design law. However, as the Court also did not include clear guidance for national courts on how to draw the line for copyright protection in trivial and functional products the decision is most likely going to fuel an expansion of copyright’s reach. Because of the principle of cumulation the overlap between copyright and design law is going to be very substantial. At the same time as copyright is expanding the Doceram-decision from the CJEU limited design protection for products which are ‘dictated by function’ even if ‘alternative shapes’ are available. Because of the expansion of copyright (Cofemel) and the contraction of design law (Doceram) design law finds itself in a ‘double-whammy’ which will increase the pressure on design law. In the final part the article discusses ways of securing the overall balance while leaving enough room for the co-existence of both copyright and design law.

Keywords: design law, copyright law, works of applied art, cofemel, doceram

Suggested Citation

Schovsbo, Jens, Copyright and Design Law: What Is Left after All and Cofemel? – Or: Design Law in a ‘Double Whammy’ (January 14, 2020). Available at SSRN: https://ssrn.com/abstract=3519156 or http://dx.doi.org/10.2139/ssrn.3519156

Jens Schovsbo (Contact Author)

Centre for Information and Innovation Law (CIIR) ( email )

University of Copenhagen
Karen Blixens Plads 16
Copenhagen, 2300
Denmark

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