A decision handed down by the European Court of Justice (CJEU) in September[i] indicated that EU Member States must now make full copyright protection available for all works that comply with certain basic requirements for copyright. This means that full copyright protection is now likely to become available in respect of consumer goods such as furniture, household goods, fashion and tech devices, areas in which copyright protection has historically been restricted in many countries (including the UK).
The dispute
The case, which was referred to the CJEU by the Portuguese court, involved a dispute between rival makers of jeans and other casual clothing, G-Star Raw and Cofemel. G-Star Raw complained that Cofemel was infringing its copyright in the design of its jeans, T-shirts and sweatshirts.
The CJEU’s decision
It appeared that Portuguese law might require a higher level of originality for works of applied art and design compared to other copyright works, with the result that G-Star Raw’s designs would not qualify for copyright[ii]. The Portuguese court therefore asked the CJEU whether the EU copyright framework permitted national copyright laws to require a higher level of originality for such works. The CJEU’s answer was no. It held that the same (relatively low) originality criteria developed in CJEU case law apply to all types of subject matter, namely that a work must be the expression of the author’s own intellectual creation and express his or her free and creative choices[iii]. The decision is important for right holders as copyright is a powerful right, first because it arises automatically in most countries in the world without the need for registration and secondly because of its very long duration[iv].
Implications
In terms of UK law, the decision appears to be inconsistent with S.51 Copyright Designs and Patents Act, which excludes copyright protection for many 3D articles that do not qualify as ‘works of artistic craftsmanship’, thus requiring a higher standard of originality for such designs. Any repeal of S.51 in order to comply with the principles in this case could lead to many more designs qualifying for full copyright protection. It is as yet not clear whether the UK Government will make such a change, a question which could depend on Brexit.
More broadly, the decision raises the question whether in future copyright may become the right of choice for designers of consumer goods reducing the importance of registered design rights.
Elaine O'Hare