On 5 December, the CJEU issued its long-awaited judgment in the MIO/konektra case (C-580/23 and C 795/23) concerning copyright protection for applied art objects, their originality and the assessment of infringement.
It cannot be denied that the expectation surrounding this ruling was somewhat justified, given that the CJEU does not often have the opportunity to rule directly on issues affecting originality. In practice, we find that assessing originality is particularly complex when dealing with certain types of works, especially in the case of works of applied arts, where the functionality of the product often overshadows and restricts the creative freedom of designers.
The first question to be answered concerned the originality of works of applied arts, in particular whether there is a relationship of rule and exception between design and copyright protection, such that stricter requirements must be imposed on objects of applied art than on other types of works. The CJEU responded directly: no. The requirements for each type of right are independent of each other and are not linked nor dependent in any capacity. Thus, the originality of applied art objects must be assessed according to the same requirements as for other types of works, namely: (i) that the object is original, in the sense of being the author’s own intellectual creation, and (ii) that the classification as a work is reserved for the elements that express such intellectual creation.
On the other hand, regarding the assessment of originality, the CJEU recalls that the existence of technical constraints and considerations due to the nature of the object does not prevent the author from reflecting his personality in it, expressing his free and creative decisions. However, this means that originality and protection cannot be claimed for those elements of the object that are characterised solely by their technical function, nor for those expressions which, although free, do not bear the imprint of the author’s personality.
In this regard, the author’s intentions during the creative process lie in the realm of ideas and therefore can only be taken into account for the assessment of originality and protected to the extent that they are reflected in the expression of the object itself. Similarly, additional elements such as the author’s sources of inspiration, the use of forms found in the general collection of designs, the possibility of similar independent creations, or the recognition of the object itself in specialised circles may be taken into account, if appropriate, but are in no case necessary or decisive in proving the originality of the object for which protection is claimed.
Finally, the CJEU ruled on the assessment of copyright infringement, establishing that infringement occurs when creative elements of the protected work, which are an expression of the decisions that reflect the personality of the author of that work, are reproduced in such a way that they are recognisable in the allegedly infringing object. On the contrary, the same overall visual impression produced by each of the objects in conflict or the degree of originality of the work are irrelevant, since the scope of copyright protection does not vary due to the lesser freedom of creation available to the author in the creation process.
Thus, taking into consideration the limited possibilities for creation for technical reasons in applied art objects, the possibility of a similar creation cannot in itself justify the refusal of protection.
With this ruling, the CJEU consolidates the criterion of subjective originality for the protection of works, in addition to confirming copyright protection for objects of applied arts, without requiring them to be treated differently due to their technical characteristics.
Jorge Díaz Rodríguez.
