The Court of Justice of the European Union issued a decision in the case C-683/17. With this decision, the court clarified the conditions that must be met in order for a work to be subject to copyright protection.
A dispute between two fashion designers became the basis for the case. One of the designers appealed to the court with a demand to stop actions that violate his copyright. In addition, he argued that clothing is an original intellectual creation because of its aesthetic effect. In this regard, his clothes should be classified as a “work” and subject to copyright protection.
The parties’ dispute was referred to the Supreme Court of Portugal. A similar question regarding the necessary degree of originality of a work for its protection by the norms of copyright has not yet been raised either by the scientific community or in judicial practice. In this regard, the Supreme Court of Portugal turned to the Court of Justice of the European Union for clarification. In particular, the following question was raised before the EU Court: can a design be considered a work of art according to the norms of copyright, only on the basis that this design produces an aesthetic effect?
First of all, the Court of the European Union emphasized that such a term as “work of art” is an autonomous concept of the law of the European Union. This concept was formed directly by the jurisprudence of the Court of Justice of the EU. The EU Court also emphasized that this concept should be interpreted and applied equally. Moreover, for the concept of “work of art” to exist, two aggregate conditions must be met.
As the first condition, judicial practice defines the following: the work must be an original object. This implies that the work should be a reflection of the author’s personality through the embodiment of his free and creative decisions. However, an object cannot be original enough to be considered a work if the creation of that object is driven by technical considerations or rules that leave no room for creative freedom.
The second condition was that accuracy, clarity and objectivity are necessary for the identification of the object. However, these qualities cannot be achieved due to the fact that identification itself is carried out on the basis of sensations. Feelings, in turn, are essentially subjective for the person who perceives the object.
Based on these considerations, the EU Court states that the aesthetic effect created by the design is perceived by each individual person subjectively, based on his understanding of beauty. So, the subjective effect alone does not allow to identify the object accurately and objectively enough. In addition, the Court emphasizes that the aesthetic effect is undoubtedly an important component of creative activity. However, it does not provide an opportunity to determine whether the design is an intellectual creation, which is a demonstration of the personality and freedom of the author, which in turn does not allow to determine the compliance of the object with the requirement of originality.
Based on this, the Court of the European Union ruled that design, including clothing design, is not subject to copyright protection on the sole basis that it produces a unique, aesthetically significant visual effect.
It should be noted that the conclusions reached by the EU Court harmonized the concept of “work of art” in the member states of the European Union.
Source: http://curia.europa.eu/