A recent opinion by Advocate General Szpunar proposes that full copyright protection should apply to fashion designs and other works of applied art and design, provided that they comply with the – relatively low – standard of originality for copyright established by Court of Justice (CJEU) case law. If adopted by the CJEU, this approach could substantially extend protection for designs across the EU.
Copyright in G-Star-Raw jeans and t-shirts
The reference to the Court of Justice (CJEU) in this case arose out of a copyright infringement claim by G-Star Raw against a clothing company called Cofemel in relation to certain designs of jeans, t-shirts and sweatshirts. G-Star Raw argued that copyright subsisted in its designs because they met the basic copyright test of being the designer’s own intellectual creations. The key question for the Court was whether, as argued by the Italian, Czech and UK governments, Member States should be free to require a higher level of originality or artistic quality for copyright in designs which goes beyond that required for other categories of work.
Copyright ‘work’ an autonomous EU concept
The AG argued that developing a uniform definition of what constitutes a copyright ‘work’ across the EU was essential to achieving harmonisation. Based on CJEU case law to date he indicated that under EU law a copyright ‘work’ must be the author’s own intellectual creation, must reflect the author’s personality and should involve free and creative choices. It must also be identifiable with sufficient precision and objectivity. Allowing Member States to provide different levels of copyright protection for different types of work would not be consistent with this case law.
An obstacle to competition?
The AG accepted the force of objections made by the Italian, Czech and UK governments that applying a low basic threshold of originality to designs may result in design protection lasting for long periods, an excessive protection for subject matter of this sort, which could create an obstacle to competition. There was also a danger that copyright might oust designs law. The AG suggested that Member States could mitigate these problems by rigorously applying copyright principles. Among other things he argued that copyright should not apply in situations where the design is dictated by function or is devoid of creativity. He also suggested that the idea/expression dichotomy could be used to mitigate excessive protection, indicating that elements of the G-Star Raw jeans and t-shirts might be regarded as non-protectable ideas.
The question of what constitutes a ‘work’ that can be protected by copyright differs considerably from Member State to Member State, and it is clear the AG has a harmonising sub-text. It is perhaps questionable whether his insistence that there must be a uniform definition of ‘work’ across all subject matters is necessary to achieve harmonisation and whether the extent of protection which should be afforded to designs would be better left to the legislature. However, the approach suggested by the AG could have the benefit of simplicity and is likely to be welcomed by designers.
UK copyright lawyers will note that this concept of a work is not tied to any particular types of subject matter as is currently the case in UK copyright law. On the assumption that the CJEU decides this issue before the UK leaves the EU, the Court’s decision would be incorporated into UK law. It will be interesting to see, however, whether this is an area where the UK courts would revert to the traditional UK approach post-Brexit.
Case: Cofemel – Sociade de Vestuario SA v G-Star Raw CV case C-68317 At the time of writing, this opinion is not available in English.