The Status of Three-Dimensional Functional Works Post-cofemel. An Empirical Analysis of the Member States’ Case Law Which Had an Artistic Merit Requirement

Abstract

On 12 September 2019, the CJEU decided the Cofemel case, which was referred by the Portuguese supreme court and dealt with several pieces of clothing. The Court ruled that the originality requirement of the author’s own intellectual creation (AOIC) was the same for all copyright works including works of applied art, also called three-dimensional (3D) functional works. This originality requirement had been stated in a general way in the Infopaq case but it was never completely clear it applied to all authorial works so that many countries which had a higher originality requirement (such as artistic or aesthetic value, merit or character) carried on applying it. With the ruling in Cofemel, which was subsequently restated and further substantiated in Brompton , requiring aesthetic character for 3D functional works is now against EU law. This chapter examines whether the national courts are actually respecting the CJEU precedents in relation to the originality requirement for these 3D functional works in most of the Member States which had a requirement of artistic merit, namely Portugal, Germany, Italy, Denmark, Finland and Spain. In this short contribution, it is not possible to examine the case law of all Member States so we will focus on that of some of the most interesting ones. The conclusion is that, over two years on, many courts in the Member States which had a higher level of originality for 3D functional works are still not complying with the Cofemel ruling, therefore not only breaching EU law but contributing to the state on disharmony across the EU.  

Note: This project is supported by a grant from the University of Nottingham’s ESRC Impact Acceleration Account ES/T501992/1 and a British Academy Small Research Grant SRG21\210361, awarded to E. Derclaye and G. Stupfler

Keywords: copyright, works of applied art, Cofemel, Court of Justice of the EU, European Union, Portugal, Germany, Italy, Denmark, Finland, Spain